Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law. (b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 9 contracts
Sources: Indemnification Agreement (Mti Technology Corp), Indemnification Agreement (Mti Technology Corp), Indemnification Agreement (Mti Technology Corp)
Agreement to Indemnify. Subject to the conditions of this Article VII:
(a) In the event Indemnitee wasPurchaser hereby agrees to indemnify, is defend and hold harmless Seller from and against all demands, claims, actions or becomes a party to or witness or other participant incauses of action, or is threatened to be made a party to or witness or other participant inassessments, a Proceeding by reason of (or arising in part out of) an Indemnifiable Eventlosses, the Company shall indemnify Indemnitee to the fullest extent permitted by lawdamages, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Companyliabilities, against any costs and all Expensesexpenses, judgmentsincluding, fineswithout limitation, interest, penalties and amounts paid in settlement reasonable attorney's fees, costs and disbursements and expenses (including all interestcollectively, assessments "Damages"), asserted against, resulting to, imposed upon or incurred by Seller and other charges paid its officers, directors and shareholders directly or payable in connection with indirectly, arising out of or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlementresulting from (i) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt breach of any payments under this Agreementrepresentation, including the creation warranty, covenant or agreement of the Trust pursuant to Section 4 hereof. Notwithstanding anything Purchaser contained in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification or made pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against (including but not limited to enforcement of this Article VII), the Company other Transaction Documents or the transactions contemplated hereby or thereby or any director facts or officer circumstances constituting such a breach; (ii) any indebtedness, obligation or liability assumed by Purchaser pursuant to Section 1.4(b) hereof; and (iii) the operation, use or ownership of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by IndemniteeRestaurants, Purchased Assets, Real Properties, the Company shall advanceEasements and Assumed Contracts, within ten (10) business days during, or which have otherwise accrued from or otherwise relate to, the period of such request, any and all Expenses to Indemnitee (an "Expense Advance")time after the Closing Date; provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.and
(b) Notwithstanding the foregoingSeller hereby agrees to indemnify, defend and hold harmless Purchaser and its officers, directors and shareholders from and against all Damages asserted against or incurred by Purchaser or such officers, directors and shareholders, directly or indirectly, arising out of or resulting from (i) a breach of any representation, warranty, covenant or agreement of Seller contained in or made pursuant to this Agreement (including but not limited to enforcement of this Article VII, the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in other Transaction Documents or any facts or circumstances constituting such a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and breach; (ii) the obligation any indebtedness, obligations or liabilities of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition thatSeller including, if, when and to the extent that the Reviewing Party determines that Indemnitee would but not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable lawlimited to, any determination made liability or obligation set forth in Section 1.4(a), and the tax liabilities set forth in Section 2.17 other than those expressly assumed by the Reviewing Party that Indemnitee would not be permitted to be indemnified Purchaser hereunder; (iii) a breach of or otherwise arising under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto Environmental Law (as to which all rights of appeal therefrom have been exhausted whether now or have lapsedhereafter in effect). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted the same arises out of any condition or state of facts or otherwise relates to the period of time commencing on the date of possession by law. If there has not been a Change the Seller of the Real Property in Controlquestion and ending on the Closing Date; (iv) the operation, use or ownership of the Restaurants, Purchased Assets, Real Properties, Real Properties, the Reviewing Party shall Easements and Assumed Contracts during, or which have otherwise accrued from or otherwise relate to the period of time prior to the Closing Date; (v) Seller's failure to pay and discharge all claims of creditors which may be selected asserted against Purchaser by the Board reason of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved Purchaser's waiver of compliance by a majority Seller of the Company's Board of Directors who were directors immediately prior Bulk Sales Laws; and (vi) any claims made with respect to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteePlan.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Carrols Restaurant Group, Inc.), Asset Purchase Agreement (Carrols Restaurant Group, Inc.), Asset Purchase Agreement (Carrols Restaurant Group, Inc.)
Agreement to Indemnify. 10.01.1 Each of the Purchaser and the Parent, and their respective Affiliates, Associates, officers, directors, shareholders, representatives and agents (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Eventcollectively, the Company "Purchaser Indemnitees") shall indemnify Indemnitee each be indemnified and held harmless to the fullest extent permitted set forth in this Article X by law, as soon as practicable but each Shareholder in any event no later than thirty (30) days after written demand is presented to the Company, against respect of any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and damages incurred by any federal, state, local or foreign taxes imposed on the Purchaser Indemnitee as a result of the actual any inaccuracy or deemed receipt misrepresentation in or breach of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything representation or warranty made in this Agreement to the contrary and except as provided in Section 5by such Shareholder, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that each Shareholder shall have no obligation to indemnify the Purchaser Indemnitees with respect to damages incurred by any Purchaser Indemnitee as a result of any inaccuracy or misrepresentation in or breach of any representation or warranty made in this Agreement by any other Shareholder and further a Shareholder shall have no such Expenses obligation to indemnify a Purchaser Indemnitee hereunder unless, and to the extent, the aggregate of all damages incurred by the Purchaser Indemnities for all items covered by this Section 10.01(1) shall exceed $1,000 in the aggregate.
10.01.2 Each of the Purchaser Indemnitees shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only and held harmless to the extent permitted set forth in this Article X by lawthe Corporation in respect of any and all damages incurred by any Purchaser Indemnitee as a result of any inaccuracy or misrepresentation in or breach of any representation, warranty, covenant or agreement made in this Agreement by the Corporation.
(b) Notwithstanding the foregoing10.01.3 Each Shareholder and their respective Affiliates and Associates and each officer, (i) the obligations director, shareholder, employer, representative and agent of any of the Company under Section 2(aforegoing (collectively, the "Shareholder Indemnitees") shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to each be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and held harmless to the extent that set forth in this Article X by the Reviewing Party determines that Purchaser and Parent in respect of any and all damages incurred by any Shareholder Indemnitee would not be permitted to be so indemnified under applicable lawas a result of any inaccuracy or misrepresentation in or breach of any representation, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; providedwarranty, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination covenant or agreement made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse Parent or the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change Purchaser in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteethis Agreement.
Appears in 3 contracts
Sources: Share Exchange and Share Purchase Agreement (Urbana Ca Inc), Share Exchange and Share Purchase Agreement (Urbana Ca Inc), Share Exchange and Share Purchase Agreement (Urbana Ca Inc)
Agreement to Indemnify. Subject to the terms and conditions of this Section, Horler and the Company each hereby agree, jointly and severally, to indemnify, defend and hold the FB Shareholders harmless from and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including without limitation, interest, penalties, court costs and reasonable attorneys' fees (aincluding paralegal and law clerk fees and other legal expenses and costs) In and expenses, asserted against, relating to, imposed upon or incurred by the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding FB Shareholders by reason of or resulting from a breach of (or arising i) any agreement set forth in part out of) an Indemnifiable Event, this Agreement by the Company shall indemnify Indemnitee or the Company Representatives, or (ii) any representation or warranty given by the Company or Horler contained in or made pursuant to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation or (iii) any liability of the Trust pursuant Company Group existing, accruing or arising on or before the Closing Date; provided that, in the case of clause (ii), notice of such breach of representation or warranty is given to Section 4 hereofthe Company or Horler within two years of the Closing Date, except with respect to the representations and warranties contained in Sections 4(a) through 4(d), 4(k) and 4(l), which shall survive without limitation. Notwithstanding anything Subject to the terms and conditions of this Section, each of Far Beyond and the FB Shareholders hereby agrees, severally and not jointly, to indemnify, defend and hold the Company harmless from and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including without limitation, interest, penalties, court costs and reasonable attorneys' fees (including paralegal and law clerk fees and other legal expenses and costs) and expenses, asserted against, relating to, imposed upon or incurred by the Company by reason of or resulting from a breach of (i) any agreement set forth in this Agreement to the contrary and except as provided by Far Beyond or such FB Shareholder, or (ii) any representation or warranty given by Far Beyond or such FB Shareholder contained in Section 5, Indemnitee shall not be entitled to indemnification or made pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against Agreement, provided that notice of such breach of representation or warranty is given to Far Beyond or the Company or any director or officer FB Shareholder within two years of the Company unless the Company has joined in or consented Closing Date, except with respect to the initiation of such Proceedingrepresentations and warranties contained in Sections 2(a) - 2(b), 3(a) and 3(b), which shall survive without limitation. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf All of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel foregoing are hereinafter collectively referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, as "CLAIMS" and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in singularly as a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee"CLAIM."
Appears in 2 contracts
Sources: Acquisition Agreement (Asia Resources Holdings LTD), Acquisition Agreement (Hearty Holdings LTD)
Agreement to Indemnify. (a) In Coil Tubing Technology Holding, Inc., and Each Shareholder, jointly and severally, with respect to each Shareholder, respectively, agrees to indemnify, defend and hold Grifco and its affiliates (the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of“Indemnified Parties) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, harmless from and against any and all Expensesclaims sustained after Closing by Grifco or any of its affiliates based upon, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid arising out of or payable in connection with or otherwise in respect of such Expenses(i) the inaccuracy of any representation or warranty, judgmentsor the breach of any covenant or agreement, fines, penalties or amounts paid in settlement) of such Proceeding and Coil Tubing Technology Holding, Inc., Shareholder contained in this Agreement or in any federalcertificate, stateagreement, local document or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under instrument delivered pursuant to this Agreement, including or (ii) the creation operation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement business or the ownership, management or use of the assets prior to the contrary Closing unless and except as provided in Section 5, Indemnitee to the extent that such claim shall not be entitled to indemnification pursuant to this Agreement in connection with have arisen solely from any Proceeding initiated by Indemnitee against the Company action of Grifco or any director or officer of the Company unless the Company has joined in or consented its affiliates prior to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance")Closing; provided, however, that such Expenses Coil Tubing Technology Holding, Inc., Shareholders shall have no liability pursuant to this Section for the first $10,000 of aggregate claims incurred by Grifco or its affiliates (the "Grifco Basket") and Coil Tubing Technology Holding, Inc., Shareholders shall be advanced responsible only for such amounts of such claims as exceed the Grifco Basket. The Indemnified Parties may retain counsel satisfactory to them, and the Coil Tubing Technology Holding, Inc., Shareholders shall pay all fees and expenses of such counsel for the Indemnified Parties, promptly as statements therefore are received, and (b) the Coil Tubing Technology Holding, Inc., Shareholders will use its best efforts to assist in the vigorous defense of any such matter; provided, that the Coil Tubing Technology Holding, Inc., Shareholders shall not be liable for any settlement effected without its written consent, which consent, however, shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 10.7, upon delivery learning of any such claim, action, suit, proceeding or investigation, shall notify the Coil Tubing Technology Holding, Inc., Shareholders and shall deliver to the Company of Coil Tubing Technology Holding, Inc., Shareholders an undertaking by or on behalf of the Indemnitee to repay such amount any amounts advanced when and if a court of competent jurisdiction shall ultimately determine, after exhausting of all avenues of appeal, that it is ultimately determined that Indemnitee is was not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted indemnity under this Agreement or by law. The Indemnified Parties as a unit may retain only one law firm to represent them with respect to any such matter unless there is, under applicable standards of professional conduct, a conflict of any significant issue between the positions of any two or more Indemnified Parties. This Section 10.7 shall survive the Closing and is intended to benefit each of the Indemnified Parties, each of whom shall be entitled to enforce this Section 10.7 against the Coil Tubing Technology Holding, Inc., Shareholders for a period of six years.
(b) Notwithstanding the foregoing, (i) the The indemnification obligations of the Company under this Section 2(a) shall be subject limited to the condition that the Reviewing Party indemnification for actual damages suffered and shall not have determined (in a written opinioninclude incidental, in any case in which the specialconsequential, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paidspecial or indirect damages; provided, however, that if Indemnitee has commenced legal proceedings in any such incidental, consequential, special or indirect damages recovered by a court of competent jurisdiction third party against a party entitled to secure a determination that Indemnitee should be indemnified indemnity under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances this Agreement shall be unsecured and no interest shall be charged thereon, included in the damages recoverable pursuant to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteeindemnities herein.
Appears in 2 contracts
Sources: Definitive Acquisition Stock Purchase Agreement (Coil Tubing Technology, Inc.), Definitive Acquisition Stock Purchase Agreement (Coil Tubing Technology Holdings, Inc.)
Agreement to Indemnify. (a) The Seller shall indemnify, defend, and hold harmless the Purchaser and its respective officers, directors, employees, representatives, agents, successors, and assigns (collectively, the “Indemnitees”) from, against, and in respect of any and all damages incurred by any Indemnitee arising out of or as a result of: (i) any inaccuracy or misrepresentation in or breach of any representation or warranty made by the Seller in this Agreement; (ii) any breach of any covenant or agreement made by the Seller in this Agreement; and/or (iii) any and all proceedings, judgments, decrees, awards, assessments, fees, and expenses incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnification.
(b) The Seller shall not be required to provide indemnification to any Indemnitee pursuant to Section 7.1(a) unless and until the aggregate amount of all damages incurred by all Indemnitees responsive to such Section exceeds Five Thousand Dollars ($5,000) (the “Deductible”), whereupon the Indemnitees shall be entitled to indemnification under such Section only with respect to damages in excess of such Deductible. The maximum aggregate monetary liability of the Seller to indemnify the Indemnitees under Section 7.1(a) shall not exceed the Purchase Price (the “Cap”) in the aggregate. Notwithstanding the foregoing, neither the Deductible nor the Cap shall apply to claims arising out of fraud, intentional misrepresentation, or gross negligence.
(c) If any third party notifies any Indemnitee with respect to any matter which may give rise to a claim for indemnification against the Seller under this Article VII, then the Indemnitee will notify the Seller thereof within thirty (30) days thereafter, such notice to state the nature and basis of any claim made by the third party; provided that, no delay on the part of the Indemnitee in notifying the Seller will relieve the Seller from any obligation hereunder unless, and then solely to the extent that, the Seller is demonstrably prejudiced thereby. In the event the Seller notify the Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than within thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or date the Indemnitee has given notice of the matter that the Seller will indemnify the Indemnitee in respect of such Expensesmatter, judgmentsthen the Seller may, finesby notice to the Indemnitee within such 30-day period, penalties or amounts paid in settlement) assume the defense of such Proceeding and any federal, state, local or foreign taxes imposed on matter. If the Indemnitee as a result of Seller assume the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation defense of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoingmatter, (i) the obligations Seller will defend the Indemnitee against the matter with counsel of Seller’s choice reasonably satisfactory to the Indemnitee, (ii) the Indemnitee may retain separate counsel at its sole cost and expense, and (iii) the Seller will not consent to the entry of a judgment or consent order with respect to the matter, or enter into any settlement, in each case which either (A) grants the plaintiff or claimant any form of relief other than monetary damages which will be satisfied by the Seller or (B) fails to include a provision whereby the plaintiff or claimant in the matter releases the Indemnitees from all liability with respect thereto, in either such case without the written consent of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party Indemnitee (which consent shall not have determined be unreasonably withheld or delayed). If the Seller has not assumed the defense of such matter, (in a written opinion, i) the Indemnitee may defend against the matter in any case in which the special, independent manner it reasonably may deem appropriate and with counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable lawof its choice, and (ii) the obligation Seller may retain separate counsel at their sole cost and expense. Notwithstanding anything to the contrary in the foregoing, if defendants in any action include any Indemnitee and Seller, and such Indemnitee shall have been advised by its counsel that there may be material legal defenses available to such Indemnitee inconsistent with those available to Seller, or if a conflict of interest exists between an Indemnitee and Seller with respect to such claim or the defense thereof, or if an Indemnitee reasonably determines that Seller’s control of such defense would reasonably be expected to have an adverse effect on the Assets or the outcome of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition thatmatter, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable lawthen in any such case, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation reassert such defense through its own counsel, and in any court such event (or in the States event that the Seller does not timely assume or diligently pursue the defense of California such matter as provided above) the reasonable fees and expenses of the Indemnitee’s counsel shall be borne by the Seller and shall be paid by them from time to time within twenty (20) days of receipt of appropriate invoices therefore.
(d) In the event that an Indemnitee notifies the Seller of any claim for indemnification hereunder that does not involve a third party claim, the Seller shall, within thirty (30) days after the date of such notice, pay to the Indemnitee the amount of damages payable pursuant to this Section 7.1 and shall thereafter pay any other damages payable pursuant to this Section 7.1 and arising out of the same matter on demand, unless the Seller dispute in writing its liability for, or Delaware having subject matter jurisdiction thereof and the amount of, any such damages within such 30-day period, in which venue is proper seeking an initial determination by the court or challenging any case such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise payment shall be conclusive made as provided above in respect of any matters or amounts not so disputed and binding any damages in respect of the matters so disputed shall be paid within five (5) business days after any determination (by agreement of Purchaser and Seller, or pursuant to arbitration in accordance with Section 8.3) that the Seller are liable therefore pursuant to this Section 7.1.
(e) In connection with any payment of damages pursuant to this Section 7.1, the Seller shall pay to the Indemnitee(s) an amount calculated like interest on the Company and Indemniteeamount of such damages at the applicable interest rate from the date of Closing until the Indemnitee(s) shall have been indemnified in respect thereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Tristar Wellness Solutions, Inc.), Asset Purchase Agreement (I-Web Media, Inc.)
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party Subject to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason any express provisions of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary contrary, from and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against after the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoingClosing, (i) the Seller and MI shall indemnify, defend and hold harmless the Purchaser from and against any and all obligations, claims, losses, damages, liabilities, and expenses (including, without limitation, reasonable attorneys' and accountants' fees and disbursements) arising out of (v) any termination of employment of employees at the Property prior to or upon the Closing resulting from the termination of employment of such employees by Seller or its operator and/or the failure of Tenant to hire such employees (including, without limitation, severance pay, wrongful discharge claims, and claims and/or fines under federal, state or local statutes or regulations, including without limitation the Worker Adjustment and Retraining Notification Act), (w) the employment of such individuals prior to the Closing Date, including, without limitation, employment-related claims; COBRA-related claims; disability claims; vacation; sick leave; wages; salaries; payments due (or allocable) to any medical, pension, and health and welfare plans, and any other employee benefit plan established for the employees at the Property; and employee-related tax obligations such as, but not limited to, social security and unemployment taxes accrued as of the Company Closing Date, (x) events, acts, or omissions of the Seller that occurred in connection with its ownership or operation of the Property prior to the Closing Date or obligations accruing prior to the Closing Date under any Contract of Seller (except to the extent of any adjustment made in respect of such Contract at Closing), (y) any material breach of a representation or warranty made by Seller and MI under Section 2(a) shall 6 (as such representations and warranties may be modified pursuant to said Section 6 and subject to the condition that one-year limitation period set forth therein), or (z) any claim against Purchaser for damage to property of others or injury to or death of any person or any debts or obligations of or against Seller and arising out of any event occurring on or about or in connection with the Reviewing Party shall not have determined (in a written opinionProperty or any portion thereof, in at any case in which time or times prior to the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable lawClosing Date, and (ii) the obligation Purchaser and, if Purchaser is not CHCLP, CHCLP shall indemnify, defend and hold harmless the Seller from and against any and all obligations, claims, losses, damages, liabilities and expenses (including, without limitation, reasonable attorneys' and accountants' fees and disbursements) arising out of (x) events, acts, or omissions of the Company Purchaser that occur in connection with its ownership or operation of the Property from and after the Closing Date or obligations accruing from and after the Closing Date under any Contract (except to make an Expense Advance pursuant to the extent of any adjustment made in respect of such Contract at Closing), (y) any material breach of a representation or warranty made by Purchaser and, if Purchaser is not CHCLP, CHCLP under Section 2(a) shall be 7 (and subject to the condition thatone year limitation period set forth therein), ifor (z) any claim against Seller for damage to property of others or injury to or death of any person or any claims for any debts or obligations of or against Seller and arising out of any event occurring on or about or in connection with the Property or any portion thereof, when at any time or times from and after the Closing Date. The provisions of this Section 11.1 shall not apply to the extent that the Reviewing Party determines that Indemnitee would not be permitted any liabilities or obligations with respect to be so indemnified under applicable lawhazardous substances, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse liabilities of the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made parties with respect thereto being governed by the representation and warranty of Seller set forth in Section 6.13.
(b) Whenever it is provided in this Agreement that an obligation will continue after Closing as to which all rights an obligation of appeal therefrom have been exhausted Purchaser or have lapsed). Indemnitee's obligation to reimburse be assumed by Purchaser after the Company for Expense Advances Closing, the Purchaser and, if Purchaser is not CHCLP, CHCLP shall be unsecured deemed to have also agreed to indemnify and no interest hold harmless the Seller and MI and their respective successors and assigns from and against all claims, losses, damages, liabilities, costs, and expenses (including, without limitation, reasonable attorneys' and accountants' fees and expenses) arising from any failure of the Purchaser to perform the obligation so continued or assumed after the Closing (but not with respect to any act or omission which occurred prior to Closing).
(c) Whenever either party shall learn through the filing of a claim or the commencement of a proceeding or otherwise of the existence of any liability for which the other party is or may be responsible under this Agreement, the party learning of such liability shall notify the other party promptly and furnish such copies of documents (and make originals thereof available) and such other information as such party may have that may be used or useful in the defense of such claims and shall afford said other party full opportunity to defend the same in the name of such party and shall generally cooperate with said other party in the defense of any such claim.
(d) The provisions of this Section 11.1 shall survive the Closing hereunder and the termination of this Agreement. All representations and warranties made in this Agreement shall survive the Closing for a period of one year. Any action, suit or proceeding with respect to the truth, accuracy or completeness of any such representation or warranty shall be charged thereoncommenced, to if at all, on or before the extent permitted by law. If there has date which is twelve (12) months after the date of the Closing and served promptly (but in no event later than sixty (60) days after commencement) and, if not been a Change in Controlcommenced on or before such date and so served, the Reviewing Party thereafter shall be selected by the Board void and of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party force or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteeeffect.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (CNL Health Care Properties Inc), Purchase and Sale Agreement (CNL Health Care Properties Inc)
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out ofof ) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, Agreement (including the creation of the Trust pursuant to Section 4 hereofTrust). Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, prior to a Change in Control Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or the Board of Directors has consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, advance (within ten (10) business days of such request, ) any and all Expenses to Indemnitee (an "“Expense Advance"”); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the The Company’s obligations of the Company under Section 2(a) shall be are subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.following:
Appears in 2 contracts
Sources: Indemnification Agreement (PF2 SpinCo, Inc.), Indemnification Agreement (McKesson Corp)
Agreement to Indemnify. Notwithstanding the provisions of Section 8.2 of the Merger Agreement regarding the non-survival of the Company's representations and warranties contained in the Merger Agreement, Xxxx X. Xxxxxx (the "Indemnitor") agrees as follows:
(a) In the event Indemnitee wasTo indemnify, is defend and hold harmless Parent and Sub (each, an "Indemnified Party") and their affiliates (including any officer, director, stockholder, partner, member, employee, agent or becomes representative of any thereof) (each a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of"Parent Affiliate") an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by lawprovided in Section 9.5 from and against all assessments, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Companylosses, against any damages, liabilities, costs and all Expensesexpenses, judgments, finesincluding without limitation interest, penalties and amounts paid in settlement reasonable fees and expenses of legal counsel chosen by Parent, Sub or Parent Affiliate (including all interestcollectively, assessments and other charges paid "Damages"), imposed upon or payable incurred by Parent, Sub or any Parent Affiliate arising out of or in connection with or in respect resulting from any breach of such Expenses, judgments, fines, penalties any representation or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result warranty of the actual Company, or deemed receipt nonfulfillment, at any time prior to the consummation of the Offer, of any payments under this Agreementcovenant or agreement by the Company, including the creation of the Trust in each case contained in or made pursuant to Section 4 hereof. Notwithstanding anything in this the Merger Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director Schedule thereto, or officer any certificate furnished or to be furnished to Parent or Sub thereunder.
(b) The Indemnitor shall reimburse an Indemnified Party promptly after delivery of an Indemnification Notice certifying that the Company unless Indemnified Party has incurred Damages after compliance with the Company has joined in or consented to the initiation terms of such Proceeding. If so requested by Indemniteethis Section 9, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee Indemnitor shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging contest any such determination by Damages in good faith.
(c) Notwithstanding anything herein to the Reviewing Party contrary, Indemnitor shall have no indemnification obligations hereunder unless Parent and Sub have consummated the Offer or any aspect thereof, and have purchased the Company hereby consents Shares pursuant to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeStock Option.
Appears in 2 contracts
Sources: Stock Option and Tender Agreement (Wolters Kluwer Us Corp), Stock Option and Tender Agreement (Ovid Technologies Inc)
Agreement to Indemnify. (a) In Subject to the event Indemnitee waslimitations provided herein, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable EventSeller shall indemnify and hold harmless Buyer, the Company shall indemnify Indemnitee Buying Parties (if any), the Acquired Entities and their respective Affiliates (collectively, the “Buyer Indemnitees”) to the fullest extent permitted by law, as soon as practicable but set forth in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or this Article X in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding any Losses reasonably and any federal, state, local or foreign taxes imposed on the Indemnitee proximately incurred by Buyer Indemnitees as a result of the actual any (i) inaccuracy or deemed receipt misrepresentation in any representation or warranty of Seller made herein, (ii) breach of or failure to perform any payments under this Agreementcovenant, including the creation agreement or obligation of the Trust pursuant to Section 4 hereof. Notwithstanding anything Seller in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director agreement, document or officer certificate delivered hereunder, (iii) failure to pay, perform or satisfy any of the Company unless Excluded Liabilities, or (iv) the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any litigation and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or SEC investigation disclosed on behalf Section 4.16 of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by lawDisclosure Schedule.
(b) Notwithstanding the foregoing, foregoing Section 10.1(a):
(i) Seller shall not be liable under clause (i) of Section 10.1(a) of this Agreement in respect of any claim (or group of directly related claims) subject to clause (i) Section 10.1(a): (A) having a value of not more than One Hundred Thousand Dollars ($100,000) (“Qualified Claims”) and (B) until all Losses in respect of all Qualified Claims exceed Five Million Dollars ($5,000,000) in the obligations of aggregate (the Company under Section 2(a) “Minimum Amount”), and thereafter Seller shall be liable, subject to the condition that other limitations provided for elsewhere in this Agreement, for all Losses for Qualified Claims to the Reviewing Party shall not have determined (extent in a written opinion, in any case in which excess of the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and Minimum Amount;
(ii) The aggregate liability of Seller for all Losses under clause (i) of Section 10.1(a) of this Agreement shall not exceed Forty Million Dollars ($40,000,000) (the obligation of the Company “Maximum Amount”);
(iii) Seller shall have no liability to make an Expense Advance pursuant indemnify any Buyer Indemnitee for any Losses related to Section 2(a) shall be subject to the condition that, if, when and any liability to the extent that is reflected or reserved for (i) in the Reviewing Party determines that Indemnitee would calculation of Closing Working Capital Value or (ii) on the Financial Statements or the Reference Statement; and
(iv) The Minimum Amount and the Maximum Amount will not be permitted apply to be so indemnified any claims under applicable lawclauses (ii), (iii) or (iv) of Section 10.1(a) of this Agreement.
(c) Buyer shall indemnify and hold harmless Seller and its Affiliates (collectively the “Seller Indemnitees” and, together with the Buyer Indemnitees, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company“Indemnitees”) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted set forth in this Article X in respect of any and all Losses reasonably and proximately incurred by law. If there has not been any Seller Indemnitee as a Change result of any (i) inaccuracy or misrepresentation in Controlany representation or warranty of Buyer made herein, the Reviewing (ii) breach of or failure to perform any covenant, agreement or obligation of Buyer or any Buying Party shall be selected by the Board in this Agreement or any agreement, document or certificate delivered hereunder; (iii) as a result of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority liabilities of the Company's Board of Directors who were directors immediately prior to such Change in ControlAcquired Business including liabilities arising from matters, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court facts and circumstances set forth in the States Disclosure Schedule; (iii) Seller Guarantees in accordance with Section 6.9; or (iv) failure to pay, perform or satisfy any of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeForeign Liabilities.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Snap on Inc), Stock and Asset Purchase Agreement (Proquest Co)
Agreement to Indemnify. The Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest extent permitted by law as follows:
(a) In Subject to the event exceptions contained in Section 10(a)(ii) below, if Indemnitee was, was or is or becomes a party to or witness or other a participant in, or is threatened to be made a party or a participant to or witness or any Proceeding (other participant in, than a Proceeding by or in the right of the Company) by reason of (or arising in part out of) an Indemnifiable EventIndemnitee’s Company Status, Indemnitee shall be indemnified by the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, finespenalties, penalties fines and amounts paid in settlement (including all interestactually and reasonably incurred by him, assessments and other charges paid or payable on his behalf, in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director claim, issue or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by lawmatter therein.
(b) Notwithstanding Subject to the foregoingexceptions contained in Section 10(a)(iii) below, if Indemnitee was or is a party or a participant or is threatened to be made a party or a participant to any Proceeding by or in the right of the Company to procure a judgment in its favor by reason of Indemnitee’s Company Status, Indemnitee shall be indemnified by the Company against all Expenses incurred or paid by the Indemnitee in connection with such Proceedings.
(ic) If any JCP Fund is, or is threatened to be made, a party to or a participant in any Proceeding, then to the extent the JCP Fund’s involvement in the Proceeding arises from the Indemnitee’s service to the Company as an officer or director of the Company, the JCP Fund shall be entitled to all of the indemnification rights and remedies, and shall to the extent indemnified hereunder, undertake the obligations of the Company Indemnitee, under Section 2(a) shall be subject this Agreement to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that same extent as Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the same extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified as if such JCP Fund was a party hereto. Each JCP Fund is an intended third party beneficiary under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteethis Agreement.
Appears in 2 contracts
Sources: Indemnification Agreement (Edgen Group Inc.), Indemnification Agreement (Edgen Group Inc.)
Agreement to Indemnify. The Company agrees to indemnify Indemnitee as follows:
(a) In The Company shall indemnify the event Indemnitee wasas provided in this Agreement to the fullest extent permitted by applicable law in effect on the date hereof and to such greater extent as applicable law may hereafter from time to time permit, notwithstanding that such indemnification is not specifically authorized by the other provisions of this Agreement, the Company’s Articles of Incorporation or becomes Bylaws as now or hereafter in effect, or by statute. The rights of the Indemnitee provided under the preceding sentence shall include, but shall not be limited to, the rights set forth in other Sections of this Agreement.
(b) If Indemnitee was or is a party to or witness or other participant in, or is threatened to be made a party to any Proceeding (other than an action by or witness or other participant in, a Proceeding in the right of the Company) by reason of Indemnitee’s Corporate Status, Indemnitee shall be indemnified by the Company against all Expenses and Liabilities incurred or paid by Indemnitee in connection with such Proceeding (referred to herein as “Indemnifiable Expenses” and “Indemnifiable Liabilities,” respectively, and collectively as “Indemnifiable Amounts”).
(c) If Indemnitee was or arising is a party or is threatened to be made a party to any Proceeding by or in part out ofthe right of the Company to procure a judgment in its favor by reason of Indemnitee’s Corporate Status, Indemnitee shall be indemnified by the Company against all Indemnifiable Expenses.
(d) an To the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a party to and is successful, on the merits, in any Proceeding, Indemnitee shall be indemnified against all Indemnifiable EventExpenses.
(e) If Indemnitee is not wholly successful in such Proceeding but is successful on the merits as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee to the fullest extent permitted against all Indemnifiable Expenses incurred or paid by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable Indemnitee in connection with each successfully resolved claim, issue or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by lawmatter.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 2 contracts
Sources: Indemnification Agreement (SJW Corp), Indemnification Agreement (SJW Corp)
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 2 contracts
Sources: Indemnification Agreement (Mti Technology Corp), Indemnification Agreement (Mti Technology Corp)
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party Subject to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason any express provisions of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary contrary, from and except as provided in Section 5after any Closing, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented respect to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoingapplicable Property, (i) the Seller and, if Seller is not MI, MI shall indemnify, defend and hold harmless the Purchaser from and against any and all obligations, claims, losses, damages, liabilities, and expenses (including, without limitation, reasonable attorneys' and accountants' fees and disbursements) arising out of (v) any termination of employment of employees at any Property prior to or upon the Closing with respect to such Property resulting from the termination of employment of such employees by Seller or its operator and/or the failure of Tenant to hire such employees (including, without limitation, severance pay, wrongful discharge claims, and claims and/or fines under federal, state or local statutes or regulations, including without limitation the Worker Adjustment and Retraining Notification Act), (w) the employment of such individuals prior to the Closing Date, including, without limitation, employment-related claims; COBRA-related claims; disability claims; vacation; sick leave; wages; salaries; payments due (or allocable) to any medical, pension, and health and welfare plans, and any other employee benefit plan established for the employees at the Property; and employee-related tax obligations such as, but not limited to, social security and unemployment taxes accrued as of the Company Closing Date, (x) events, acts, or omissions of the Seller that occurred in connection with its ownership or operation of the Seller's Property prior to the applicable Closing Date or obligations accruing prior to the applicable Closing Date under any Contract of Seller (except to the extent of any adjustment made in respect of such Contract at Closing), (y) any material breach of a representation or warranty made by Seller and, if Seller is not MI, MI under Section 2(a) shall 6 (as such representations and warranties may be modified pursuant to said Section 6 and subject to the condition that one-year limitation period set forth therein), or (z) any claim against Purchaser for damage to property of others or injury to or death of any person or any debts or obligations of or against Seller and arising out of any event occurring on or about or in connection with Seller's Property or any portion thereof, at any time or times prior to the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable lawClosing Date, and (ii) the obligation Purchaser and, if Purchaser is not CHLP, CHLP shall indemnify, defend and hold harmless the Seller from and against any and all obligations, claims, losses, damages, liabilities and expenses (including, without limitation, reasonable attorneys' and accountants' fees and disbursements) arising out of (x) events, acts, or omissions of the Company Purchaser that occur in connection with its ownership or operation of the Property from and after the applicable Closing Date or obligations accruing from and after the applicable Closing Date under any Contract (except to make an Expense Advance pursuant to the extent of any adjustment made in respect of such Contract at Closing), (y) any material breach of a representation or warranty made by Purchaser and, if Purchaser is not CHLP, CHLP under Section 2(a) shall be 7 (and subject to the condition thatone year limitation period set forth therein), ifor (z) any claim against Seller for damage to property of others or injury to or death of any person or any claims for any debts or obligations of or against Seller and arising out of any event occurring on or about or in connection with the Property or any portion thereof, when at any time or times from and after the applicable Closing Date. The provisions of this Section 11.1 shall not apply to the extent that the Reviewing Party determines that Indemnitee would not be permitted any liabilities or obligations with respect to be so indemnified under applicable lawhazardous substances, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse liabilities of the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made parties with respect thereto being governed by the representation and warranty of Seller set forth in Section 6.17.
(b) Whenever it is provided in this Agreement that an obligation will continue after Closing as to which all rights an obligation of appeal therefrom have been exhausted Purchaser or have lapsed). Indemnitee's obligation to reimburse be assumed by Purchaser after the Company for Expense Advances applicable Closing, the Purchaser and, if Purchaser is not CHLP, CHLP shall be unsecured deemed to have also agreed to indemnify and no interest hold harmless the Seller and MI and their respective successors and assigns from and against all claims, losses, damages, liabilities, costs, and expenses (including, without limitation, reasonable attorneys' and accountants' fees and expenses) arising from any failure of the Purchaser to perform the obligation so continued or assumed after the applicable Closing (but not with respect to any act or omission which occurred prior to Closing).
(c) Whenever either party shall learn through the filing of a claim or the commencement of a proceeding or otherwise of the existence of any liability for which the other party is or may be responsible under this Agreement, the party learning of such liability shall notify the other party promptly and furnish such copies of documents (and make originals thereof available) and such other information as such party may have that may be used or useful in the defense of such claims and shall afford said other party full opportunity to defend the same in the name of such party and shall generally cooperate with said other party in the defense of any such claim.
(d) The provisions of this Section 11.1 shall survive the Closings hereunder and the termination of this Agreement. All representations and warranties made in this Agreement shall survive the applicable Closing for a period of one year. Any action, suit or proceeding with respect to the truth, accuracy or completeness of any such representation or warranty shall be charged thereoncommenced, to if at all, on or before the extent permitted by law. If there has date which is twelve (12) months after the date of such Closing and served promptly (but in no event later than sixty (60) days after commencement) and, if not been a Change in Controlcommenced on or before such date and so served, the Reviewing Party thereafter shall be selected by the Board void and of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party force or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteeeffect.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (CNL Hospitality Properties Inc), Purchase and Sale Agreement (CNL Hospitality Properties Inc)
Agreement to Indemnify. Subject to the conditions of this Article VII:
(a) In Purchaser hereby agrees to indemnify, defend and hold harmless Seller and the event Indemnitee wasPrincipals from and against all demands, is claims, actions or becomes a party to or witness or other participant incauses of action, or is threatened to be made a party to or witness or other participant inassessments, a Proceeding by reason of (or arising in part out of) an Indemnifiable Eventlosses, the Company shall indemnify Indemnitee to the fullest extent permitted by lawdamages, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Companyliabilities, against any costs and all Expensesexpenses, judgmentsincluding, fineswithout limitation, interest, penalties and amounts paid in settlement reasonable attorney's fees, costs and disbursements and expenses (including all interestcollectively, assessments and other charges paid "Damages"), asserted against, resulting to, imposed upon or payable in connection with incurred by Seller directly or in respect indirectly, arising out of such Expenses, judgments, fines, penalties or amounts paid in settlementresulting from (i) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt breach of any payments under this Agreementrepresentation, including the creation warranty, covenant or agreement of the Trust pursuant to Section 4 hereof. Notwithstanding anything Purchaser contained in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification or made pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against (including but not limited to enforcement of this Article VII), the Company other Transaction Documents or the transactions contemplated hereby or thereby or any director facts or officer circumstances constituting such a breach; and (ii) any indebtedness, obligation or liability assumed by Purchaser pursuant to Section 1.4(b) hereof and (iii) the operation, use or ownership of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by IndemniteeRestaurants, Assets, Real Property Leases, Real Properties, the Company shall advanceEasements and Assumed Contracts, within ten (10) business days during, or which have otherwise accrued from or otherwise relate to, the period of such request, any and all Expenses to Indemnitee (an "Expense Advance")time after the Closing Date; provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.and
(b) Notwithstanding Seller and the foregoingPrincipals, jointly and severally, hereby agree to indemnify, defend and hold harmless Purchaser and its officers, directors and shareholders from and against all Damages asserted against or incurred by Purchaser or such officers, directors and shareholders, directly or indirectly, arising out of or resulting from: (i) a breach of any representation, warranty, covenant or agreement of Seller contained in or made pursuant to this Agreement (including but not limited to enforcement of this Article VII, the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in other Transaction Documents or any facts or circumstances constituting such a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and breach; (ii) any indebtedness, obligations or liabilities of Seller including, but not limited to, any liability or obligation set forth in Section 1.4(a), and the obligation tax liabilities set forth in Section 2.17 other than those expressly assumed by Purchaser hereunder, (iii) a breach of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and or otherwise arising under any Environmental Law to the extent that the Reviewing Party determines that Indemnitee would not be permitted same arises out of any condition or state of facts or otherwise relates to be so indemnified under applicable lawthe period of time commencing on the date of possession by the Seller of the Real Property in question and ending on the Closing Date; (iv) the operation, use or ownership of the Restaurants, Assets, Real Properties, Leases, the Company shall Easements and Assumed Contracts during, or which have otherwise accrued from or otherwise relate to the period of time prior to the Closing Date; (v) Seller's failure to pay and discharge all claims of creditors which may be entitled to be reimbursed asserted against Purchaser by Indemnitee reason of Purchaser's waiver of compliance by Seller of the Bulk Sales Laws; and (who hereby agrees to reimburse the Companyvi) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is claims made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteePlan.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Carrols Corp), Purchase and Sale Agreement (Carrols Corp)
Agreement to Indemnify. Each Effective Time Holder shall severally (abased on each such holder’s Pro Rata Share), and not jointly, indemnify and hold harmless Parent and its Subsidiaries, their respective officers, directors, employees, agents and Representatives (each hereinafter referred to individually as an “Parent Indemnified Person” and collectively as “Parent Indemnified Persons”) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, from and against any and all Expensesdamages, judgmentslosses, finescosts, penalties and amounts paid in settlement expenses (including all interestreasonable attorneys’ fees, assessments other professionals’ and other charges paid or payable experts’ fees, costs of investigation and court costs (including such fees and costs incurred in connection with enforcing the provisions of this Article 11)) (hereinafter collectively referred to as “Damages”), arising out of or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlementresulting from the following (the “Indemnifiable Matters”): (a) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt failure of any payments under representation or warranty made by the Company in this Agreement, including the creation Company Disclosure Letter or the Company Closing Certificates to be true and correct as of the Trust pursuant to Section 4 hereof. Notwithstanding anything Agreement Date or as of the Closing Date (except in the case of representations and warranties which by their terms speak only as of a specific date or dates, in which case such representations and warranties shall be true and correct on and as of such specified date or dates); (b) any breach of or default in connection with any of the covenants or agreements made by the Company in this Agreement to be performed prior to the contrary and except as provided Closing; (c) any Dissenting Shares Excess Payments; (d) any Company Securityholder Taxes; (e) any inaccuracies in Section 5either Spreadsheet (including, Indemnitee shall without limitation, a claim from a holder of Promised Options who did not be execute a Promised Option Release that such individual is entitled to indemnification pursuant additional equity compensation with respect to this Agreement in connection with such Promised Options beyond that contemplated by Section 6.7(b) hereof); (f) any Proceeding initiated by Indemnitee against the Company Merger Expense or any director or officer Company Closing Debt that is outstanding as of the Company unless Effective Time and is not either paid and satisfied in full at the Company has joined in Effective Time or consented a reduction to the initiation Total Merger Consideration; (g) any of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"matters set forth on Schedule 11.2(g); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking or (h) any Fraud by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteethis Agreement.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (MINDBODY, Inc.)
Agreement to Indemnify. The Companies agree to indemnify Indemnitee as follows:
(a) In Subject to the event exceptions contained in this Agreement, if Indemnitee waswas or is a party, is witness, or becomes otherwise a party to or witness or other participant in, or is threatened to be made a party to party, witness, or witness otherwise a participant in any Proceeding (other than an action by or other participant in, a Proceeding in the right of the Companies) by reason of Indemnitee’s Corporate Status or as a result of any act or omission taken at the direction of any of the Companies, Indemnitee shall be indemnified by the Companies against all Expenses and Liabilities actually incurred by Indemnitee in connection with such Proceeding (or arising in part out of) an referred to herein as “Indemnifiable EventExpenses” and “Indemnifiable Liabilities,” respectively, and collectively as “Indemnifiable Amounts”), and the Company Companies shall indemnify Indemnitee advance Expenses to Indemnitee, to the fullest extent permitted by applicable law. In the event that Indemnitee is a witness in a Proceeding and is not a party to such Proceeding, as soon as practicable but in any event no later than thirty “Indemnifiable Expenses” shall only include reasonable out-of-pocket expenses (30including, without limitation, reasonable and documented attorneys’ fees) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable incurred by Indemnitee in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee service as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything witness in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding Subject to the foregoingexceptions contained in this Agreement, including Section 4(b) below, if Indemnitee was or is a party, witness, or otherwise a participant in or is threatened to be made a party, witness, or otherwise a participant in any Proceeding by or in the right of the Companies to procure a judgment in its favor by reason of Indemnitee’s Corporate Status or as a result of any act or omission taken at the direction of any of the Companies, Indemnitee shall be indemnified by the Companies against all Indemnifiable Expenses, and the Companies shall advance Expenses to Indemnitee, to the fullest extent permitted by applicable law.
(c) The indemnification obligations of the Companies under this Agreement (i) the are joint and several obligations of each of the Company under Section 2(aCompanies, (ii) shall be subject continue after such time as Indemnitee ceases to serve as a director of the condition that the Reviewing Party shall not have determined (in a written opinion, Companies or in any case in which other Corporate Status until the special, independent counsel referred to expiration of the term of this Agreement as set forth in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law23, and (iiiii) include, without limitation, claims for monetary relief against Indemnitee in respect of any alleged breach of fiduciary duty, to the obligation fullest extent permitted under applicable law (including, if applicable, Section 145 of the Company Delaware General Corporation Law) as in existence on the date hereof and as amended from time to make an Expense Advance pursuant time.
(d) If Indemnitee is entitled under any provision of this Agreement to Section 2(a) shall be subject to indemnification by the condition thatCompanies for some or a portion of Expenses and Liabilities, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; providedbut not, however, that if for the total amount thereof, the Companies shall nevertheless indemnify Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by for the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as portion thereof to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, Indemnitee is entitled to the fullest extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 2 contracts
Sources: Indemnification Agreement (Blackboard Inc), Indemnification Agreement (Blackboard Inc)
Agreement to Indemnify. (ai) In From and after the event Indemnitee wasClosing Date, is or becomes each of Xxxxx and Xxxxxx hereby severally covenant and agree to indemnify, on a party pro rata basis, up to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising the limits set forth in part out of) an Indemnifiable EventSection 9.2(b)(ii), the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, Purchaser and its successors and assigns and hold them harmless from and against any and all Expenseslosses, judgmentsclaims, liabilities, obligations, fines, penalties penalties, damages and amounts paid in settlement expenses, including reasonable attorneys fees (including all interestcollectively, assessments and other charges paid "Losses") incurred by any of them resulting from or payable in connection with or in respect arising out of such Expenses, judgments, fines, penalties or amounts paid in settlement) any breach of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual representations or deemed receipt of any payments under warranties made by Xxxxx or Suozzi in this Agreement. For purposes of this Section 9.2(a), including such representations and warranties shall be considered as though made without any "material" or "Material Adverse Effect" qualification, notwithstanding the creation of the Trust pursuant presence thereof. The pro rata indemnification by Xxxxx and Xxxxxx referred to Section 4 hereof. Notwithstanding anything above shall be made in this Agreement proportion to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer their relative ownership of the Company unless (i.e., Xxxxx shall be responsible for 77.78% of the Company has joined in or consented to indemnification obligations and Suozzi shall be responsible for 22.22% of the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"indemnification obligations); provided, however, that such Expenses Xxxxx and Xxxxxx shall each be advanced only upon delivery solely responsible, up to the Company limits set forth above, for the breach of an undertaking by a representation or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only warranty contained in Article 3 hereof to the extent permitted by lawthat such breach relates solely to Xxxxx or Suozzi, as the case may be.
(bii) Notwithstanding From and after the foregoingClosing Date, (i) the obligations ESOP hereby covenants and agrees to indemnify, up to the limit set forth in Section 9.2(b)(ii), the Purchaser and its successors and assigns and to hold them harmless from and against any Losses incurred by any of them resulting from or arising out of any breach by the Trustee of the Company under representations or warranties made by the Trustee in Section 2(a4.4.
(iii) shall be subject From and after the Closing Date, the Purchaser hereby covenants and agrees to indemnify, up to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to limits set forth in Section 3 hereof is involved9.2(b)(iii), each of Xxxxx, Xxxxxx and the ESOP and each of their respective successors, assigns, heirs and personal representatives and to hold them harmless from and against any Losses incurred by any of them resulting from or arising out of (x) that Indemnitee would not be permitted to be indemnified under applicable law, any breach by the Purchaser of any of the representations or warranties made by the Purchaser in this Agreement and (iiy) the any liability or obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made Insilco which is assumed by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (Purchaser as to which all rights contemplated by Section 8.11 of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteethis Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Safety Components International Inc), Stock Purchase Agreement (Safety Components International Inc)
Agreement to Indemnify. Following the Closing and subject to the limitations set forth herein,
(a) In each Seller Party and each of the event Indemnitee wasPrincipals (collectively, is or becomes a party the “Seller Indemnitors”) shall severally indemnify and agree to or witness or other participant indefend and hold harmless Parent, or is threatened to be made a party to or witness or other participant inBuyer and their respective affiliates, officers, directors, employees, representatives and agents (“Purchaser Indemnitees” and, singularly, a Proceeding “Purchaser Indemnitee”) against and in respect of any and all Damages, by reason of (or otherwise arising in part out of:
(i) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty Excluded Liability;
(30ii) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust Net Working Capital shortfall determined pursuant to Section 4 hereof. Notwithstanding anything 2.06(c);
(iii) any Seller Warranty Liabilities; or
(iv) any breach by a Seller Party or a Principal of a representation, warranty or covenant contained in this Agreement to provided, that, the contrary and except as provided in Section 5, Indemnitee shall Purchaser Indemnities will not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company Section 9.01(a) unless the Company has joined aggregate amount of all Damages for which indemnification is sought by the Purchaser Indemnities exceeds $80,000 (the “Purchaser Indemnification Basket”), in or consented which case the Purchaser Indemnities will be entitled to indemnification for the initiation full amount of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance")Damages; provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company Purchaser Indemnification Basket shall make such advances only not apply to the extent permitted by lawany claim for indemnification based on items (i) — (iii) above, Section 3.10 due to uncollectability of Accounts Receivable, or Section 6.06(b) due to Seller’s failure to reimburse Buyer for Seller’s pro-rated portion of Property Taxes.
(b) Notwithstanding Parent shall indemnify and agrees to defend and hold harmless the foregoingSeller Parties, the Principals and their respective affiliates, representatives and agents (the “Seller Indemnitees”) against and in respect of any and all Damages by reason of or otherwise arising out of:
(i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and Assumed Liability; or
(ii) the obligation any breach by Parent or Buyer of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition any representation, warranty or covenant contained in this Agreement; provided, that, if, when and to the extent that the Reviewing Party determines that Indemnitee would Seller Indemnitees will not be permitted to be so indemnified under applicable law, the Company shall be entitled to indemnification pursuant to this Section 9.01(b) unless the aggregate amount of all Damages for which indemnification is sought by the Seller Indemnities exceeds $80,000 (the “Seller Indemnification Basket”), in which case the Seller Indemnitees will be reimbursed by Indemnitee (who hereby agrees entitled to reimburse indemnification for the Company) for all full amount of such amounts theretofore paidDamages; provided, howeverfurther, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction the Seller Indemnification Basket will not apply to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company claim for any Expense Advance until a final judicial determination is made with respect thereto indemnification based on item (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteei) above.
Appears in 1 contract
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee Subject to the fullest extent permitted by lawlimitations set forth in this Section 10, DDI will indemnify and hold harmless ISI and its officers, directors, agents and employees, and each person, if any, who controls or may control ISI within the meaning of the Securities Act (hereinafter referred to individually as soon an "Indemnified Person" and collectively as practicable but in any event no later than thirty (30"Indemnified Persons") days after written demand is presented to the Company, from and against any and all Expensesclaims, judgmentsdemands, finesactions, penalties causes of actions, losses, costs, damages, liabilities and amounts paid in settlement expenses including, without limitation, reasonable legal fees (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlementhereinafter referred to as "Damages"):
(a) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt Arising out of any payments under this Agreement, including the creation misrepresentation or breach of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement or default in connection with any Proceeding initiated of the representations, warranties and covenants given or made by Indemnitee against the Company DDI in this Agreement or any director certificate, document or officer instrument delivered by or on behalf of DDI pursuant hereto (other than with respect to changes in the truth or accuracy of the Company unless representations and warranties of DDI under this Agreement after the Company date hereof if DDI has joined advised ISI of such changes in or consented an update to Exhibit 2.0 delivered prior to the initiation Closing and ISI has nonetheless proceeded with the Closing); or
(b) Resulting from any failure of any DDI Shareholders to have good, valid and marketable title to the issued and outstanding DDI Common Stock held by such Proceedingshareholders, free and clear of all liens, claims, pledges, options, adverse claims, assessments or charges of any nature whatsoever, or to have full right, capacity and authority to vote such DDI Common Stock in favor of the Merger and the other transactions contemplated by the Agreement of Merger. If so requested by IndemniteeIn seeking indemnification for Damages under this Section, the Company Indemnified Persons shall advance, within ten (10) business days of such request, exercise their remedies with respect to the Escrow Shares and any and all Expenses other assets deposited in escrow pursuant to Indemnitee (an "Expense Advance")the Escrow Agreement; provided, however, that no such Expenses shall claim for Damages will be advanced only upon delivery to asserted after the Company of an undertaking by or on behalf expiration of the Indemnitee Escrow Period. Except for intentional fraud or willful misconduct or breach of any of the provisions of the Affiliates Agreement: (i) no DDI Shareholder shall have any liability to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only an Indemnified Person under this Agreement except to the extent permitted by law.
(b) Notwithstanding of such DDI Shareholder's Escrow Shares and any other assets deposited under the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, Escrow Agreement and (ii) the obligation of the Company to make an Expense Advance pursuant to remedies set forth in this Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party 10.2 shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States exclusive remedies of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, ISI and the Company hereby consents to service of process and to appear in other Indemnified Persons hereunder against any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeDDI Shareholder.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Integrated Systems Inc)
Agreement to Indemnify. Subject to the terms and conditions of this Section, the Purchaser and the Company hereby agrees for a period of two (2) years to indemnity. defend and hold each other harmless from and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including without limitation, interest, penalties, court costs and reasonable attorney fees (including paralegal and law clerk fees and other legal expenses and costs) and expenses, asserted against, relating to, imposed upon or incurred by the Company or the Purchaser by reason of or resulting from a breach of (i) any representation or warranty given by the Purchaser or Company contained in or made pursuant to this Agreement, or (ii) any provision set forth in· this Agreement to be performed by the Purchaser or, Company or the Purchaser's or Company's Representatives. Subject to the terms and conditions of this Section, the Company and the Purchaser hereby agree to indemnify, defend and hold each other harmless from and against all demands, Claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including without limitation, interest, penalties, court costs and reasonable attorneys' fees (including paralegal and law clerk fees and other legal expenses and costs) and expenses, asserted against, relating to, imposed upon or incurred by the Company or the Purchaser by reason of or resulting from a breach of (i) any representation or warranty given by the Company or the Purchaser contained in or made pursuant to this Agreement, or (ii) any provision set forth in this Agreement to be performed by the Purchaser, the Company or the Company Representatives. All of the foregoing are hereinafter collectively referred to as "Claims" and singularly as a "Claim.”
(a) Conditions of Indemnification. The obligations and liabilities of the Purchaser, the Company and the Purchaser, with respect to Claims resulting from the assertion of liability by third parties, shall be subject to the following terms and conditions:
(1) The party hereto seeking indemnification (the "Indemnitee") will give the other party hereto (the "Indemnitor") notice of any such Claim reasonably promptly after the Indemnitee receives notice thereof, and the Indemnitor will undertake the defense thereof by representatives of its own choosing.
(2) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, that the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advanceIndemnitor, within ten (10) } business days after notice of any such Claim, fails to defend such Claim, the Indemnitee will (upon giving written notice to the Indemnitor) have the right, but not the obligation, to undertake the defense, compromise or settlement of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or Claim on behalf of and for the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by account and risk of the Company; provided furtherIndemnitor, that the Company shall make such advances only subject to the extent permitted by lawright of the Indemnitor to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof.
(b3) Notwithstanding the foregoing, (i) the obligations of the Company under Anything in this Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinioncontrary notwithstanding, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such is a Change in Control, reasonable probability that a Claim may materially and adversely affect the Indemnitee other than as a Change in Control which has been approved by a majority result of money damages or other money payments§ the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation defend, compromise or settle such Claim, in good faith, on behalf of and for the account and risk of the Indemnitor. However. the Indemnitee shall not~ without the Indemnitor's written consent, settle or compromise any court Claim or consent to entry of any judgment which does not include an unconditional release from all liability in respect of such Claim, other than liability specified in the States of California settlement. from the claimant or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by plaintiff to the court or challenging any such determination by the Reviewing Party or any aspect thereof, Indemnitor and the Company hereby consents Indemnitee. To the greatest extent reasonably possible~ the parties shall attempt to service of process and to appear in any obtain general releases from such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteeplaintiff or claimant.
Appears in 1 contract
Sources: Share Acquisition Agreement (Homeland Integrated Security Systems, Inc.)
Agreement to Indemnify. (a) In Subject to the event limitations provided herein ATC, Buyer and their Affiliates (collectively, the "Buyer Indemnitees") shall each be indemnified and held harmless on a joint and several basis by Stockholders and Sellers in respect of any Damages reasonably and proximately incurred by any Buyer Indemnitee was(i) as a result of any inaccuracy or misrepresentation in or breach of or failure to perform any representation, is warranty, covenant, agreement or becomes a party to obligation of any Stockholder or witness or other participant inSeller in this Agreement, or is threatened to be made a party to or witness or other participant in(ii) in connection with any Excluded Liabilities. The aggregate Liability of Stockholder and Seller under Section 9.01(a)(i) shall not exceed $40,000,000, a Proceeding by reason except in the case of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee Damages due to the fullest extent permitted by law, as soon as practicable but in fraud or willful misconduct of any event no later than thirty Stockholder or Seller.
(30b) days after written demand is presented Subject to the Companylimitations provided herein, against Stockholders, Sellers and their Affiliates (collectively the "Seller Indemnitees") shall each be indemnified and held harmless by ATC and Buyer in respect of any and all Expenses, judgments, fines, penalties Damages reasonably and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect proximately incurred by any of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Seller Indemnitee as a result of the actual (i) any inaccuracy or deemed receipt misrepresentation in or breach of or failure to perform any payments under representation, warranty, covenant, agreement or obligation of ATC or Buyer in this Agreement, including (ii) Assumed Liabilities or (iii) the creation conduct of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to Business after the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by lawClosing Date.
(bc) Notwithstanding the foregoing, (i) the obligations of the Company Buyer Indemnitees may not seek indemnification under Section 2(a9.01(a) shall be subject to unless and until the condition claims in the aggregate exceed $50,000, provided that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof if such threshold is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable lawexceeded, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) Buyer Indemnitees may seek indemnification hereunder for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law claims. The foregoing limitation shall not be binding and Indemnitee shall not be required apply to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as Damages relating to which all rights of appeal therefrom have been exhausted Excluded Liabilities or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, Damages due to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board fraud or willful misconduct of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party any Stockholder or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeSeller.
Appears in 1 contract
Sources: Asset Purchase Agreement (Aftermarket Technology Corp)
Agreement to Indemnify. (a) In Subject to the event Indemnitee waslimitations provided herein, is or becomes a party to or witness or other participant inBuyer and the direct and indirect subsidiaries of Buyer (including, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Eventafter the Closing has occurred, the Company Company) (collectively, the "Buyer Indemnitees") shall indemnify Indemnitee each be indemnified and held harmless to the fullest extent permitted set forth in Section 7.05 and this Article IX by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or Seller in respect of any Damages incurred by any Buyer Indemnitee (excluding consequential damages to such Expenses, judgments, fines, penalties or amounts paid in settlementBuyer Indemnitee but including consequential damages suffered by a third party that have been recovered by such third party against a Buyer Indemnitee) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of:
(i) any inaccuracy or misrepresentation in or breach of or failure to perform any representation or warranty of Seller (or, prior to the Closing Date, of the actual or deemed receipt of any payments under Company) in this Agreement, including the creation schedules and exhibits hereto (it being understood and agreed that, for purposes of this Article IX only, in order to determine whether there has been any such inaccuracy, misrepresentation in or breach of or failure to perform, and in order to calculate the Trust pursuant amount of Damages arising therefrom, the representations, warranties, covenants, agreements and obligations of Seller shall be deemed not to Section 4 hereof. Notwithstanding anything be qualified by any concept of "material," "materiality," "in this Agreement to the contrary and except as provided in Section 5any material respect" or "Material Adverse Effect");
(ii) any Environmental Liabilities with respect to, Indemnitee shall not be entitled to indemnification pursuant to this Agreement arising from or in connection with the properties identified in Exhibit H hereto;
(iii) any Proceeding initiated by Indemnitee against Environmental Liabilities with respect to, arising from or in connection with the properties identified in Exhibit I hereto;
(iv) any Environmental Liabilities with respect to, arising from or in connection with properties other than those identified in Exhibits H or I hereto.
(v) any liabilities or obligations of the Company or any director Company Subsidiary of any nature, whether due or officer to become due, whether accrued, absolute, contingent or otherwise, existing on the Closing Date, or arising out of any transactions entered into or any state of facts existing, or the Company unless the Company has joined in use, ownership, possession or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority operation of the Company's Board , any Company Subsidiary or the conduct of Directors who were directors immediately the Business, on or prior to such Change in Controlthe Closing Date, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party excepting only those obligations or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.liabilities that:
Appears in 1 contract
Sources: Stock Purchase Agreement (Aftermarket Technology Corp)
Agreement to Indemnify. Each Effective Time Holder shall severally (a) In the event Indemnitee wasbased on each such holder's Pro Rata Share), is or becomes a party to or witness or other participant inand not jointly, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, and hold harmless Acquiror from and against any and all ExpensesDamages directly or indirectly arising out of, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid resulting from or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlementwith: (a) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt failure of any payments under representation or warranty made by the Company in this Agreement, including the creation Company Disclosure Letter or any Company Ancillary Agreement to be true and correct as of the Trust date of this Agreement and as of the Closing Date (as though such representation or warranty were made as of the Closing Date, except in the case of representations and warranties which by their terms speak only as of a specific date or dates); (b) any failure of any certification, representation or warranty made by the Company in any certificate delivered to Acquiror pursuant to Section 4 hereof. Notwithstanding anything in this Agreement Article 9 (other than the Closing Financial Certificate) to be true and correct as of the contrary and except as provided in Section 5, Indemnitee shall not be entitled date such certificate is delivered to indemnification pursuant to this Agreement Acquiror; (c) any breach of or default in connection with any Proceeding initiated of the covenants or agreements made by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemniteethis Agreement, the Company shall advanceDisclosure Letter or any Company Ancillary Agreement; (d) any inaccuracies in the Spreadsheet or Closing Financial Certificate; (e) any Indemnifiable Merger Expenses; or (f) any Dissenting Shares Excess Payments. "DAMAGES" means losses, within ten costs, damages, liabilities and expenses, including reasonable attorneys' fees, other professionals' and experts fees, costs of investigation and court costs, and including amounts that Acquiror properly pays to officers, directors or other agents of Acquiror or the Company, but excluding special, consequential, incidental, punitive or exemplary damages (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, except that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party excluded damages shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and so excluded to the extent that Acquiror pays any such damages to a third party or records a liability or reserve on its financial statements in accordance with GAAP for such payment). In determining the Reviewing Party determines that Indemnitee would not be permitted amount of any Damages in respect of the failure of any representation or warranty to be so indemnified under applicable lawtrue and correct as of any particular date (but not in determining whether any such representation and warranty is, the Company in fact, true and correct), any materiality qualifier contained in such representation or warranty shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteedisregarded.
Appears in 1 contract
Sources: Merger Agreement (Symantec Corp)
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee Subject to the fullest extent permitted by lawconditions and provisions set forth in this Article VIII, as soon as practicable but in any event no later than Seller and Owner agree, upon the lapse of the thirty (30) days day period after written demand Seller is presented notified in writing of such a demand, claim, action or cause of action, to indemnify, defend and hold harmless the Buyer from and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including reasonable attorney's fees, asserted against or imposed upon or incurred by the Buyer, as the case may be, directly or indirectly, in whole or in part, resulting from (i) all debts, liabilities and obligations, actual or alleged, arising at any time from or related to the Companyownership, against control or operation of the Assets or Business by Seller prior to Closing, (ii) sales taxes imposed upon Seller and arising out of the operation of the Businesses or with respect to Seller's ownership, use, control, operation or sale of the Assets, (iii) any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid obligation of Seller pertaining to interest on the shareholder loans whether directly to the shareholder advancing funds to Seller or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and to any federal, statestate or local tax authority, (iv) a breach of any covenant, or the inaccuracy in any respect of any representation or warranty, of Seller contained in or made pursuant to this Agreement and (v) all other liabilities for which the Buyer may become liable and which are covered by this indemnity, including, without limitation, all federal, state and local taxes applicable to the ownership, control or foreign taxes imposed operation of the Assets on and prior to the Indemnitee Closing Date and liabilities arising as a result of the actual calculation of same.
(b) Subject to the conditions and provisions of this Article VIII, Buyer agrees, upon the lapse of the thirty (30) day period after Buyer is notified in writing of such a demand, claim, action or deemed receipt cause of action, to indemnify, defend and hold harmless the Seller from and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, cost and expenses, including reasonable attorney fees, asserted against or imposed upon or incurred by the Seller, as the case may be, directly or indirectly, in whole or in part, resulting from (i) the failure of Buyer to pay any of the Assumed Liabilities (except as may be set forth in Section 1.2 above), (ii) a breach of any payments under covenant, or other inaccuracy in any respect of any representation or warranty, of Buyer contained in or made pursuant to this Agreement, including (iii) all other liabilities for which Seller may become liable and which are covered by this indemnity, including, without limitation, all federal, state and local taxes applicable to the creation ownership, control or operation of the Trust pursuant Assets after the Closing Date and liabilities arising as a result of the calculation of same.
(c) All of the adjustments, demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses to Section 4 hereof. Notwithstanding anything in this Agreement which a party may be entitled to the contrary and except as provided in Section 5, Indemnitee shall not recover or for which such party may be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall hereinafter be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) as the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee"Indemnification Claims".
Appears in 1 contract
Sources: Asset Purchase Agreement (Abatix Environmental Corp)
Agreement to Indemnify. The Company will indemnify and hold harmless Concur and the Surviving Corporation and their respective officers, directors, agents, and employees, and each person who controls or may control Concur or the Surviving Corporation within the meaning of the Securities Act and who suffers Damages (aas defined below) In in the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason capacity as such controlling person (each of (or arising in part out of) an Indemnifiable EventConcur, the Company shall indemnify Indemnitee Surviving Corporation and each such officer, director, agent, employee and controlling person is hereinafter referred to the fullest extent permitted by law, individually as soon an "INDEMNIFIED PERSON" and collectively as practicable but in any event no later than thirty (30"INDEMNIFIED PERSONS") days after written demand is presented to the Company, from and against any and all Expensesclaims, judgmentsdemands, finessuits, penalties actions, causes of actions, losses, costs, demonstrable damages, liabilities 44 and amounts paid in settlement expenses including, without limitation, reasonable attorneys' fees, other professionals' and experts' reasonable fees and court or arbitration costs (including all interesthereinafter collectively referred to as "DAMAGES") incurred and arising out of any inaccuracy, assessments and other charges paid misrepresentation, breach of, or payable in connection with or in respect of such Expensesdefault in, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual representations, warranties or deemed receipt of any payments under this Agreement, including covenants given or made by the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything Company in this Agreement to the contrary and except as provided or in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company Disclosure Letter or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking certificate delivered by or on behalf of the Indemnitee Company pursuant hereto, (if such inaccuracy, misrepresentation, breach or default existed at the Closing Date). Any claim of indemnity made by an Indemnified Person under this Section 11.2 must be raised in a writing delivered to repay such the Representative and the Escrow Agent by no later than the Escrow Release Date. As used herein, the term "Damages" will not include any overhead costs of Concur personnel and the amount if it is ultimately determined that Indemnitee is not entitled to of Damages incurred by any Indemnified Person will be indemnified reduced by the Company; provided further, amount of any insurance proceeds actually received by such Indemnified Person on account of such Damages and the amount of any direct tax savings actually recognized by such Indemnified Person that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior are directly attributable to such Change in ControlDamages, the Reviewing Party shall be the special, independent counsel referred but will include any reasonable costs or expenses incurred by such Indemnified Person to in Section 3 hereofrecover such insurance proceeds or to obtain such tax savings. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted The Indemnified Persons will use reasonable efforts to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteemitigate their Damages.
Appears in 1 contract
Agreement to Indemnify. Subject to the other provisions of this Section 8.1, Parent and the Company (a) In the event Indemnitee was, is individually or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Eventcollectively, the Company shall "Indemnifying Party") hereby agree jointly and severally to defend, indemnify Indemnitee to and hold harmless Buyer and the fullest extent permitted by lawSubsidiaries (individually or collectively, as soon as practicable but the "Indemnified Party") from and against and in any event no later than thirty (30) days after written demand is presented to the Company, against respect of any and all ExpensesLosses incurred by the Indemnified Party which may be imposed on, judgmentssustained, finesincurred or suffered by or assessed against the Indemnified Party, penalties and amounts paid in settlement (including all interestdirectly or indirectly, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of or relating to or to the actual or deemed receipt of any payments under this Agreement, including the creation extent arising out of the Trust pursuant to following:
(i) any breach of the representations or warranties of Parent or the Company contained in Sections 3.2(b),(c) and (d) and Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 53.5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company such breach determined as if any such representations or any director or officer warranties were given as of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance")Closing Date; provided, however, that the ability of Buyer to recover hereunder in respect of a breach of Sections 3.2(b),(c) or (d)hereof shall not be deemed qualified by any references to materiality contained in such Expenses representation and any breach thereof shall be advanced only upon delivery determined without regard to whether such breach constitutes a Material Adverse Effect; provided, further, however, that with respect to the Company of an undertaking by or on behalf of the Indemnitee to repay representations and warranties contained in Section 3.5, such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party indemnification shall not have determined (in a written opinion, in cover any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and Losses to the extent that such Losses are a result of any actions taken by Buyer or reflect changes implemented to reflect accounting policies or practices of Buyer;
(ii) any breach of the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, representations or warranties of Parent or the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; contained in Section 3.7(b), provided, however, that if Indemnitee has commenced legal proceedings (x) the ability of Buyer to recover hereunder in respect of a court breach of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding representation and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances warranty included in Section 3.7(b)(i) shall be unsecured determined without regard to whether the related liabilities or obligations have resulted in or are reasonably likely to have a Material Adverse Effect and no interest (y) solely for purposes of the indemnification provided by this clause (b)(ii), a breach of the representations and warranties included in Section 3.7(b)(ii) shall be charged thereondetermined as if the reference in Section 3.7(b)(ii) to $325 million was $100 million, and the Indemnified Party shall be indemnified, subject to the other provisions of this Section 8.1, including subsection (c) hereof, only to the extent permitted by law. If there has not been a Change of Losses in Controlexcess of $100 million (all numbers referenced in this clause(ii) to be determined before giving effect to any related reduction in any Indemnified Party's Taxes); provided, the Reviewing Party further however, that no indemnification shall be selected provided hereunder with respect to any Losses to the extent that such Losses are a result of any actions taken by Buyer or reflect changes implemented to reflect accounting policies or practices of Buyer; and
(iii) with respect to any defined benefit plan of an ERISA Affiliate of Parent, (x) any accumulated funding deficiency within the Board meaning of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority Section 412 of the Company's Board Code or Section 302 of Directors who were directors immediately prior ERISA and (y) any withdrawal liability relating to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteea multi-employer pension plan.
Appears in 1 contract
Sources: Asset Purchase Agreement (Associates First Capital Corp)
Agreement to Indemnify. Following the Closing and subject to the limitations set forth herein,
(a) In the event Indemnitee wasCompany Preferred Stockholders shall severally indemnify and agree to defend and hold harmless Parent and the Surviving Corporation (and their respective affiliates, is or becomes a party to or witness or other participant inofficers, or is threatened to be made a party to or witness or other participant indirectors, employees, representatives and agents) (“Purchaser Indemnities” and, singularly, a Proceeding “Purchaser Indemnitee”) against and in respect of any and all Damages, by reason of (or otherwise arising in part out of:
(i) an Indemnifiable Event, Parent Indemnified Taxes;
(ii) any liability for past-due payroll tax obligations of the Company shall indemnify Indemnitee relating to periods prior to the fullest extent permitted by lawClosing Date, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against extent the Surviving Corporation’s liability for all such past-due payroll obligations exceeds the Estimated Payroll Tax Obligation;
(iii) any and all Expenses, judgments, fines, claim for software license fees or penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee arising as a result of the actual audit of the Company’s software use occurring on or deemed receipt about the date of any payments under this Agreement, including the creation ;
(iv) any liability of the Trust Surviving Corporation related to the failure to timely file any required Forms 5500 for the Plans;
(v) the Adjustment of Merger Consideration pursuant to Section 4 hereof. Notwithstanding anything in this Agreement 2.04 to the contrary and except as provided in Section 5extent the Additional Merger Consideration Adjustment is greater than the Cash Holdback Amount;
(vi) any claim by an employee or former employee of the Company, Indemnitee shall not be entitled or any other person or entity, based upon (A) such employee’s or former employee’s employment with the Company prior to indemnification the Effective Time, (B) the termination of employment of current or former employees of the Company pursuant to this Agreement or otherwise prior to the Effective Time, or (C) any severance arrangements or payments or any benefit, salary, bonus, commission or other compensation payments made or required to be made in connection with such terminations prior to the Effective Time;
(vii) any Proceeding initiated claim by Indemnitee a Stockholder or former stockholder of the Company, or any other person or entity, against the Company or any director of its affiliates, officers, directors, employees or officer agents, based upon (A) any rights of a stockholder (other than the right of Company Preferred Stockholders to receive Merger Consideration pursuant to this Agreement), including appraisal rights under the applicable provisions of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such requestDGCL, any and all Expenses option, preemptive rights or rights to Indemnitee notice or to vote, or (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery B) any claim of false or misleading information relating to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified transactions contemplated hereby included in the Information Statement; or
(viii) a breach by the Company; provided furtherCompany of a representation, that the Company shall make such advances only to the extent permitted by lawwarranty or covenant contained in this Agreement.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Sources: Merger Agreement (Perficient Inc)
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable practicable, but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, Agreement (including the creation of the Trust pursuant to Section 4 hereof(as defined below)). Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, prior to a Change in Control Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, advance (within ten (10) business days of such request, ) any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be so indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee Indemnittee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee. Expenses shall be advanced, however, only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company.
Appears in 1 contract
Agreement to Indemnify. (a) In 10.2.1 Subject to the event Indemnitee waslimitations set forth in this Section 10, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Eventafter the Closing, the Company shall holders of Classifieds2000 Capital Stock, Classifieds2000 Options and Classifieds2000 Warrants will indemnify Indemnitee and hold harmless Excite, its affiliates, officers, directors, employees, consultants and agents (hereinafter referred to the fullest extent permitted by law, individually as soon an "INDEMNIFIED PERSON" and collectively as practicable but in any event no later than thirty (30"INDEMNIFIED PERSONS") days after written demand is presented to the Company, from and against any and all Expensesclaims, judgmentsliability, finesdamages and/or costs including, penalties and amounts paid in settlement but not limited to, attorneys fees (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlementhereinafter referred to as "DAMAGES") of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt arising out of any payments under this Agreement, including the creation misrepresentation or breach of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement or default in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless representations and warranties given or made by Classifieds2000 or the Company has joined Principal Shareholders in or consented Section 2 of this Agreement. Except to the initiation extent of such Proceeding. If so requested the Escrow Shares, each holder shall have no liability for breaches of representations, warranties, and covenants involving intentional fraud by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance")another holder; provided, however, that such Expenses no limit of liability shall apply to any holder who is determined to have committed intentional fraud. Other than for liability for breaches of representations, warranties, and covenants, which breaches involve intentional fraud, each holder's maximum liability shall be advanced only upon delivery to the Company of an undertaking by his, her or on behalf its pro rata share of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances Escrow Shares and each Indemnified Person may look only to the extent permitted by law.
(b) Notwithstanding Escrow Shares to satisfy this indemnity obligation and the foregoing, (i) sole remedy shall be a claim under the obligations Escrow. Under no event shall there be any indemnity for any Damages arising solely in connection with termination of the Company under Classifieds2000 Pension Plan, which is covered by Section 2(a401(k) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance Code, pursuant to Section 2(a) 4.19 of this Agreement.
10.2.2 In seeking indemnification for Damages under this Section 10, the Indemnified Persons shall exercise their remedies with respect to the Escrow Shares and any other assets deposited in escrow pursuant to the Escrow Agreement and these Escrow Shares shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paidsole source of indemnification in connection therewith; provided, however, that if Indemnitee has commenced legal proceedings no such claim for Damages will be asserted after the expiration of the Escrow Period. In seeking indemnification for Damages under Section 10.2.1, the Indemnified Persons shall exercise their remedies solely to the Escrow Shares deposited in a court escrow pursuant to the Escrow Agreement. Except for intentional fraud: (i) no Classifieds2000 Stockholder shall have any liability to an Indemnified Person under this Agreement except to the extent of competent jurisdiction such Classifieds2000 Stockholder's Escrow Shares deposited under the Escrow Agreement and (ii) the remedies set forth in this Section 10.2 shall be the exclusive remedies of Excite and the other Indemnified Persons hereunder against any Classifieds2000 Stockholder. The liability of any Classifieds2000 Stockholder with respect to secure a determination any claim for intentional fraud shall be several and not joint.
10.2.3 Excite will indemnify, defend and hold harmless Classifieds2000, its affiliates (it is agreed and understood that Indemnitee should be indemnified under applicable lawthis term includes all of Classifieds2000's venture capital investors), officers, directors, employees, consultants and agents from any determination and all Damages arising from the misrepresentations or breach of or default in performance of any of the representations and warranties and covenants given or made by Excite in this Agreement, in any certificate, document or instrument delivered by or on behalf of Excite pursuant hereto.
10.2.4 Notwithstanding the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law foregoing, Excite shall not be binding entitled to recover any Escrow Shares from the Escrow Account unless and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights an aggregate of appeal therefrom $100,000 in Claims have been exhausted awarded or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, settled in favor of Excite pursuant to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board terms and conditions of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, this Agreement and the Company hereby consents Escrow Agreement and then such case Excite shall only be entitled to service recover from the Escrow Account the amount of process and to appear all such claims in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteeexcess of $100,000.
Appears in 1 contract
Agreement to Indemnify. Subject to the terms and conditions of, and in accordance with the procedures set forth in, this Agreement, the Company shall hold Indemnitee harmless and indemnify Indemnitee (aand Indemnitee’s spouse as provided below), to the fullest extent permitted by the provisions of the DGCL and other applicable law, from and against all Expenses and Liabilities, including, without limitation, Expenses and Liabilities arising from any Proceeding brought by or in the right of the Company or its stockholders. The Company and Indemnitee intend that this Agreement provide for indemnification in excess of that expressly required or permitted by statute, including, without limitation, any indemnification provided by the Company’s Certificate of Incorporation or Bylaws, by vote of its stockholders or directors, or by applicable law. If, after the date hereof, the DGCL or any other applicable law is amended to permit or authorize indemnification of, or advancement of defense expenses to, Indemnitee to a greater extent than is permitted on the date hereof, references in this Agreement to the DGCL or any other applicable law shall be deemed to refer to the DGCL or such applicable law as so amended. If (i) In the event Indemnitee was, is or becomes a party to was affiliated with one or witness or other participant inmore venture capital funds that has invested in the Company (an “Appointing Stockholder”), (ii) the Appointing Stockholder is, or is threatened to be made made, a party to or witness or other a participant inin any proceeding, a Proceeding by reason of and (or arising iii) the Appointing Stockholder’s involvement in part out of) an Indemnifiable Event, the proceeding is related to Indemnitee’s service to the Company shall indemnify Indemnitee to as a director of the fullest extent permitted by law, as soon as practicable but in Company or any event no later than thirty (30) days after written demand is presented to direct or indirect subsidiaries of the Company, against then, to the extent resulting from any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed claim based on the Indemnitee Indemnitee’s service to the Company as a result director or other fiduciary of the actual or deemed receipt of any payments under this AgreementCompany, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not Appointing Stockholder will be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented hereunder for Expenses to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the same extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Sources: Indemnification Agreement (Synageva Biopharma Corp)
Agreement to Indemnify. Following the Closing and subject to the limitations set forth herein,
(a) In the event Indemnitee wasSeller and, is or becomes a party pursuant to or witness or the Stockholder Representation Letters, the Seller Interest Holders and other participant inContinuing Employee Stockholders shall severally indemnify and agree to defend and hold harmless Parent and Buyer (and their respective affiliates, or is threatened to be made a party to or witness or other participant inofficers, directors, employees, representatives and agents) (“Purchaser Indemnities” and, singularly, a Proceeding “Purchaser Indemnitee”) against and in respect of any and all Damages, by reason of (or otherwise arising in part out of:
(i) an Indemnifiable Eventany Excluded Liability;
(ii) any Actual Net Working Capital Shortfall;
(iii) any Seller Warranty Liabilities; or
(iv) any breach by the Seller of a representation, warranty or covenant contained in this Agreement; provided, that, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall Purchaser Indemnities will not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company Section 9.01(a) unless the Company has joined aggregate amount of all Damages for which indemnification is sought by the Purchaser Indemnities exceeds $87,000 (the “Buyer Indemnification Basket”), in or consented which case the Purchaser Indemnities will be entitled to indemnification for the full amount of such Damages, subject to a maximum liability to all Purchaser Indemnitees, in the aggregate, of an amount equal to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance")Escrowed Shares; provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party Buyer Indemnification Basket shall not have determined apply to any breach of Section 3.10 due to uncollectability of Accounts Receivable (in a written opinionthe “AR Shortfall”), in any case in with respect to which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would Purchaser Indemnities will not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to indemnification pursuant to this Section 9.01(a) unless the aggregate amount of the AR Shortfall exceeds the amount, if any, equal to the Actual Net Working Capital less the Net Working Capital Threshold (the “AR Shortfall Basket”), in which case the Purchaser Indemnities will be reimbursed by Indemnitee (who hereby agrees entitled to reimburse the Company) indemnification for all such amounts theretofore paiddamages in excess of the AR Shortfall Basket up to an aggregate amount equal to 67% of the book value of the net Accounts Receivable as set forth on the Closing Date Statement; and provided, howeverfurther, that if Indemnitee has commenced legal proceedings in a court neither the Buyer Indemnification Basket, the AR Shortfall Basket, nor the limitation of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, liability to the extent permitted Escrowed Shares will apply to any claim for indemnification based on (A) any failure by law. If there has not been a Change in ControlSeller to pay, the Reviewing Party shall be selected by the Board of Directorsperform or discharge any Excluded Liabilities, and if there has been such a Change in Control(B) any Actual Net Working Capital Shortfall, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in (C) any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeSeller Warranty Liabilities.
Appears in 1 contract
Agreement to Indemnify. (a) In Subject to the event Indemnitee waslimitations provided herein, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of Sellers shall jointly and severally indemnify and hold harmless the Buyer and its Affiliates (or arising in part out of) an Indemnifiable Eventcollectively, the Company shall indemnify Indemnitee "BUYER INDEMNITEES") to the fullest extent permitted by law, as soon as practicable but set forth in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or this Article IX in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding any Losses reasonably and any federal, state, local or foreign taxes imposed on the Indemnitee proximately incurred by Buyer Indemnitees as a result of the actual (i) any inaccuracy or deemed receipt misrepresentation in any representation or warranty of MTC or Sellers made herein or any payments under this Agreementbreach of or failure to perform any covenant, including the creation agreement or obligation of the Trust pursuant to Section 4 hereof. Notwithstanding anything MTC or Sellers in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director agreement, document or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance")certificate delivered hereunder; provided, however, that Sellers shall have no liability on account of this Section 9.1(a)(i) with respect to any claim relating to any events, facts or circumstances of which the Buyer had Knowledge on or before the Closing Date (except in the case of any claim relating to any Taxes in which case Sellers shall have liability on account of this Section 9.1(a)(i) whether or not Buyer has Knowledge of any events, facts or circumstances with respect to such Expenses shall be advanced only upon delivery to the Company of an undertaking claim); (ii) any federal or state income Taxes incurred by MTC or its Subsidiaries caused by or on behalf resulting from the sale of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided furtherShares, that the Company shall make such advances only except to the extent permitted by lawsuch Taxes are accrued as a liability for purposes of calculating either the Closing Working Capital Value or Net Income Tax Liabilities as of the Closing Date; (iii) any Taxes imposed on or relating to MTC or any of its Subsidiaries for any Pre-Closing Period, except to the extent such Taxes are accrued as a liability for purposes of calculating either the Closing Working Capital Value or Net Income Tax Liabilities as of the Closing Date, and (iv) any Liabilities of MTC unrelated to its ownership of Oxy-Dry.
(b) Notwithstanding the foregoing, foregoing paragraph (a):
(i) the obligations of the Company Sellers shall not be liable under Section 2(a9.1(a)(i) for any Losses in respect of any claim (or group of directly related claims) subject to Section 9.1(a)(i) until all Losses in respect of all claims exceed One Hundred Thousand Dollars ($100,000) in the aggregate (the "MINIMUM AMOUNT"), and thereafter Sellers shall be liable, subject to the condition that other limitations provided for elsewhere in this Agreement, for all Losses in excess of the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and Minimum Amount;
(ii) the obligation The aggregate liability of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) Sellers for all such amounts theretofore paid; providedLosses under this Agreement and any agreement, document or certificate delivered herewith and the Acquisition shall not exceed Two Million Dollars ($2,000,000) (the "MAXIMUM AMOUNT"), provided however, that if the liability of Sellers for Taxes, and for liabilities of MTC unrelated to its ownership of Oxy-Dry and for fraud shall be unlimited; and
(iii) Sellers shall have no liability to indemnify any Buyer Indemnitee has commenced legal proceedings for any Losses (other than in a court respect of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable lawTaxes, any determination made by Liabilities of MTC unrelated to its ownership of Oxy-Dry or fraud) (A) related to any liability that is specifically set forth (i) in the Reviewing Party calculation of Closing Working Capital Value or (ii) on the Financial Statements or the Reference Purchase Price Statement, (B) under Section 9.1(a)(i), if the Buyer had Knowledge that Indemnitee would the representations and warranties of MTC or Sellers in this Agreement were not be permitted true and correct prior to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereonClosing, to the extent arising as a result of any action taken or omitted to be taken by Buyer or any of its Affiliates, (C) under Section 9.1(a)(i), in respect of a breach of any representations and warranties, to the extent disclosed in the Seller Disclosure Schedule, (D) to the extent arising from a change in Law that becomes effective after the Closing Date or (E) arising or resulting from any action taken or omitted to be taken by the Buyer or any of its Affiliates after the Closing Date other than as contemplated or permitted by law. If there has not been a Change in Controlthis Agreement.
(c) Buyer shall indemnify and hold harmless Sellers and their respective Affiliates (collectively the "SELLER INDEMNITEES" and, together with the Buyer Indemnitees, the Reviewing Party shall be selected "INDEMNITEES") to the extent set forth in this Article IX in respect of any and all Losses reasonably and proximately incurred by any Seller Indemnitee: (i) as a result of any inaccuracy or misrepresentation in any representation or warranty of the Board Buyer made herein or any breach of Directorsor failure to perform any covenant, agreement or obligation of the Buyer in this Agreement or any agreement, document or certificate delivered hereunder; or (ii) as a result of liabilities of MTC and if there has been such a Change its Subsidiaries, including liabilities arising from matters, facts and circumstances set forth in Controlthe Seller Disclosure Schedule to Article IV hereof, other than a Change (x) Tax liabilities of MTC or any of its Subsidiaries arising from any Pre-Closing Period, (y) liabilities of MTC unrelated to its ownership of Oxy-Dry or (z) liabilities in Control respect of which has been approved by a majority Sellers are obligated to indemnify and hold harmless Buyer Indemnitees pursuant to Section 9.1(a).
(d) Notwithstanding the foregoing paragraph (c):
(i) Buyer shall not be liable under Section 9.1(c)(i) for any Losses in respect of any claim (or group of directly related claims) subject to Section 9.1(c)(i) until all Losses in respect of all claims exceed One Hundred Thousand Dollars ($100,000) in the aggregate (the "MINIMUM AMOUNT"), and thereafter Buyer shall be liable, subject to the other limitations provided for elsewhere in this Agreement, for all Losses in excess of the Company's Board Minimum Amount; and
(ii) The aggregate liability of Directors who were directors immediately prior to such Change in ControlBuyer for all Losses under this Agreement and any agreement, document or certificate delivered herewith and the Reviewing Party Acquisition shall not exceed Two Million Dollars ($2,000,000) (the "MAXIMUM AMOUNT"); provided however, that the liability of Buyer for fraud shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteeunlimited.
Appears in 1 contract
Sources: Stock Purchase Agreement (Baldwin Technology Co Inc)
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes The Sellers (also referred to herein individually as a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event“Seller Indemnifying Party” and collectively, the Company shall “Seller Indemnifying Parties”) shall, jointly and severally indemnify Indemnitee to and hold harmless Purchaser and each of its directors, officers, employees, stockholders, representatives, advisors and agents (collectively, the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30“Purchaser Indemnified Parties”) days after written demand is presented to the Company, from and against any and all ExpensesLosses, judgmentswhether or not involving a Third-Party Claim, finesarising out of or resulting from any of the following:
(i) any actual or alleged inaccuracy in or breach of any representation or warranty of the Sellers contained in Article 4 of this Agreement or in any schedule, penalties and amounts paid in settlement certificate or other document delivered pursuant hereto;
(including all interest, assessments and other charges paid ii) any actual or payable alleged breach of or default in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and the failure to perform any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual covenants or deemed receipt of any payments under this Agreement, including agreements made by the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything Sellers in this Agreement or any schedule, certificate or other document delivered pursuant hereto;
(iii) any Excluded Asset or Excluded Liability;
(iv) any Company Taxes;
(v) any security or data breach suffered by the Company prior to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with Closing; and
(vi) any Proceeding initiated failure by Indemnitee against the Company or any director or officer to fully perform its obligations under Section 2.1(a)(iii), which include, without limitation, the assignment of the Company unless Company’s rights and obligations under the Company has joined in or consented Option Agreement and Underlying Agreements to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by lawPurchaser.
(b) Notwithstanding Purchaser shall indemnify and hold harmless the foregoingSellers and each of their respective directors, officers, employees, stockholders, representatives, advisors and agents (collectively, the “Seller Indemnified Parties”) from and against any and all Losses arising out of or resulting from any of the following (provided that this Section 7.2(b) shall not limit the Purchaser Indemnified Parties’ rights or recoveries pursuant to Section 7.2(b)):
(i) the obligations any actual or alleged inaccuracy in or breach of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (any representation or warranty of Purchaser contained in a written opinion, Article 5 of this Agreement or in any case in which the specialschedule, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and certificate or other document delivered pursuant hereto; and
(ii) any actual or alleged breach of or default in connection with the obligation failure to perform any of the Company covenants or agreements made by Purchaser in this Agreement or any schedule, certificate or other document delivered pursuant hereto.
(c) For purposes of this Article 7 (including for purposes of determining whether a representation or warranty is inaccurate or has been breached and the amount of Losses subject to make an Expense Advance pursuant to Section 2(a) indemnification), the representations and warranties contained in this Agreement shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would deemed not be permitted to be so indemnified under applicable lawqualified by, the Company and shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable lawinterpreted without giving effect to, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (limitations or qualifications as to which all rights “materiality” (including the words “material” or “Material Adverse Effect” and other terms of appeal therefrom have been exhausted similar import or have lapsedeffect). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Sources: Asset Acquisition Agreement (Trump Media & Technology Group Corp.)
Agreement to Indemnify. (a) In From and after the event Indemnitee wasClosing Date and subject to the terms and conditions of this ARTICLE X (including the limitations set forth in the last sentence of this Section 10.01(a), is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable EventBuyer, the Company Surviving Corporation and their respective officers, directors, employees, partners, members, agents, representatives, successors and permitted assigns (collectively, the "Buyer Indemnitees") each shall indemnify Indemnitee be indemnified and held harmless out of the Escrow Account to the fullest extent permitted by law, as soon as practicable but set forth in any event no later than thirty (30) days after written demand is presented to the Company, against this ARTICLE X in respect of any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and Damages directly incurred by any federal, state, local or foreign taxes imposed on the Buyer Indemnitee as a result of of, or arising out of, (i) any inaccuracy or misrepresentation in, or breach of, or failure to perform, on or prior to the actual Effective Time, any representation, warranty, covenant or deemed receipt of any payments under this Agreement, including agreement made by the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything Company in this Agreement to or (ii) any of the contrary and except as provided in Section 5matters set forth on the Special Indemnified Matters Schedule (the "Scheduled Matters"). Notwithstanding the foregoing, (i) no Buyer Indemnitee shall not be entitled to indemnification pursuant to indemnified under this Agreement Section 10.01(a) in connection with respect of any Proceeding initiated by Indemnitee against individual claim of Damages that results in Damages of less than $10,000 (and any such Damages shall be disregarded for all purposes of this Section 10.01(a), including in determining whether the Company or any director or officer of the Company unless the Company Deductible Amount (as defined below) has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"been exceeded); provided, however, that such Expenses the $10,000 threshold referred to in this subsection (i) shall not apply to claims for Damages relating to the Scheduled Matters; (ii) no Buyer Indemnitee shall be advanced only upon delivery indemnified under this Section 10.01(a) (except with respect to the Company of an undertaking by any inaccuracy or on behalf misrepresentation in, or breach of the Indemnitee Special Representations, any covenant or agreement contained herein or the Scheduled Matters) unless and until the aggregate amount of all Damages incurred by any or all of the Buyer Indemnitees hereunder exceeds $1,075,000 (the "Deductible Amount"), whereupon the Buyer Indemnitees shall be entitled to repay indemnification for all Damages incurred by them; and (iii) the maximum aggregate amount of indemnification that the Buyer Indemnitees may recover under this Section 10.01(a) (except with respect to any inaccuracy or misrepresentation in, or breach of the Special Representations) shall not exceed the remaining funds in the Escrow Account and recourse for such amount if it is ultimately determined that Indemnitee is not entitled shall be limited solely to be indemnified by offsets against the Company; provided further, that Escrow Account in accordance with this Agreement and the Company shall make such advances only to the extent permitted by lawEscrow Agreement.
(b) From and after the Closing Date and subject to the terms of this ARTICLE X (including the last sentence of this Section 10.01(b)), the Sellers, their Affiliates and their respective officers, directors, employees, partners, members, agents, representatives, successors and permitted assigns (collectively, the "Seller Indemnitees") shall each be indemnified and held harmless to the extent set forth in this ARTICLE X by Buyer in respect of any and all Damages arising out of or in any manner incident, relating or attributable to any inaccuracy or misrepresentation in, or breach of, or failure to perform, any representation, warranty, covenant or agreement made by Buyer or Merger Sub in this Agreement. Notwithstanding the foregoing, foregoing (i) the obligations of the Company under Section 2(a) no Seller Indemnitee shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, this Section 10.01(b) except with respect to any inaccuracy or misrepresentation or breach of Section 5.02) unless and until the aggregate amount of all Damages incurred by any or all of the Seller Indemnitees hereunder exceeds $1,075,000 (ii) the obligation maximum aggregate amount of indemnification that the Seller Indemnitees may recover under this Section 10.01(b) shall not exceed the Merger Consideration.
(c) This ARTICLE X constitutes the Buyer Indemnitees' and Seller Indemnitees' sole and exclusive remedy for any and all Damages or other claims (excluding any actions for specific performance or similar injunctive relief) relating to or arising from this Agreement, any of the agreements, documents and instruments executed and delivered in connection herewith and the transactions contemplated by any of the foregoing, except for claims that may arise against any Seller as a result of the inaccuracy of any letter of transmittal or breach of any representation or warranty of any Seller contained therein. Neither the Buyer Indemnitees nor the Seller Indemnitees may avoid such limitation on liability by seeking damages for breach of contract, tort or pursuant to any other theory of liability, other than claims based on fraud. Notwithstanding any implication herein to the contrary, any indemnification of the Buyer Indemnitees shall be satisfied solely and exclusively by setoff against the funds remaining in the Escrow Account pursuant to the terms hereof and the Escrow Agreement, including the payment of fees and expenses incurred in connection with the defense of a Third Party Claim by the Buyer Indemnitee as set forth in Section 10.04 below. Except as otherwise provided in this Section 10.01 or for claims based on fraud, no claim shall be brought or maintained by Buyer, its Subsidiaries (including, after the Effective Time, the Surviving Corporation and its Subsidiaries) or its or their respective Affiliates, successors or permitted assigns or any other Buyer Indemnitee against any of the Seller Indemnitees, and no recourse shall be brought or granted against any of them, by virtue of or based upon any alleged misrepresentation or inaccuracy in or breach of any of the representations, warranties or covenants of the Company or any other Person set forth or contained in this Agreement, or any of the agreements, documents and instruments executed and delivered in connection herewith, the subject matter of this Agreement, any information, document or material furnished or made available to make an Expense Advance pursuant to Section 2(a) shall be subject Buyer in "data rooms," management presentations or in any other form in anticipation of or in connection with the transactions contemplated by this Agreement, the ownership, operation, management, use, control of, and other actions or omissions with respect to, the business of the Company and its Subsidiaries, any of their assets, any of the transactions contemplated hereby or any other actions or omissions at or prior to the condition thatClosing Date or the Effective Time. Buyer, ifits Subsidiaries (including, when after the Effective Time, the Surviving Corporation and its Subsidiaries), and its and their respective Affiliates, successors and permitted assigns and any other Buyer Indemnitee hereby irrevocably waive all such claims of any type or description and hereby agree to indemnify and hold harmless each of the Seller Indemnitees from and against and in respect of any and all Damages and other losses incurred by any Seller Indemnitee as a result of any such claim brought or maintained by any such party against any Seller Indemnitee in contravention of this Section 10.01(c). EACH RELEASING PARTY EXPRESSLY WAIVES ALL RIGHTS AFFORDED BY ANY STATUTE WHICH LIMITS THE EFFECT OF A RELEASE WITH RESPECT TO UNKNOWN CLAIMS. EACH RELEASING PARTY UNDERSTANDS THE SIGNIFICANCE OF THIS RELEASE OF UNKNOWN CLAIMS AND WAIVER OF STATUTORY PROTECTION AGAINST A RELEASE OF UNKNOWN CLAIMS. EACH RELEASING PARTY ACKNOWLEDGES AND AGREES THAT THIS WAIVER IS AN ESSENTIAL AND MATERIAL TERM OF THIS AGREEMENT.
(d) Each Buyer Indemnitee and Seller Indemnitee shall take all commercially reasonable steps to mitigate any Damages for which such Person may be entitled to indemnification hereunder (including to first seek any recoveries of the type described in clause (ii) of the definition of Damages) to the extent mitigation is required under law. If the amount to be netted (in accordance with clause (ii) of the definition of Damages) from any payment required under this ARTICLE X is determined after payment by the Indemnifying Party of an amount otherwise required to be paid to an Indemnitee pursuant to this ARTICLE X, the Indemnitee shall repay to the Indemnifying Party, promptly after such determination, any amount that the Reviewing Indemnifying Party determines that Indemnitee would not be permitted have had to be so indemnified under applicable lawpay pursuant to this ARTICLE X had such determination been made at the time of such payment.
(e) With respect to any particular matter, the Company no party shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse any indemnification under this ARTICLE X if such matter was disclosed and accounted for in the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole Latest Balance Sheet or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof Preliminary Closing Statement and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect party has fully recovered its indemnifiable Damages as a result thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable practicable, but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, Agreement (including the creation of the Trust pursuant to Section 4 hereofTrust). Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, prior to a Change in Control Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, advance (within ten (10) business days of such request, ) any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be so indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee Indemnittee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee. Expenses shall be advanced, however, only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company.
Appears in 1 contract
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, . Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or Xxxxx Xxxxxxxxx Indemnification any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Agreement to Indemnify. The Corporation agrees to indemnify Indemnitee as follows:
(a) In Subject to the event exceptions contained in Section 4 below, if Indemnitee was, was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to any Proceeding (other than an action by or witness or other participant in, a Proceeding in the right of the Corporation) by reason of Indemnitee’s Corporate Status, either prior to or after the execution of this Agreement, Indemnitee shall be indemnified by the Corporation against all Expenses and Liabilities incurred or paid by Indemnitee in connection with such Proceeding (referred to herein as “Indemnifiable Expenses” and “Indemnifiable Liabilities,” respectively, and collectively as “Indemnifiable Amounts”) if (i) Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, or arising in part out of) an Indemnifiable Eventnot opposed to, the Company best interests of the Corporation, and (ii) with respect to any criminal Proceeding, Indemnitee had no reasonable cause to believe that Indemnitee’s conduct was unlawful. In addition, the Corporation shall indemnify and hold harmless the Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, from and against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes (if any) imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding Subject to the foregoingexceptions contained in Section 4 below, (i) if Indemnitee was or is a party or is threatened to be made a party to any Proceeding by or in the obligations right of the Company under Section 2(a) Corporation to procure a judgment in its favor by reason of Indemnitee’s Corporate Status, either prior to or after the execution of this Agreement, Indemnitee shall be subject indemnified by the Corporation against all Indemnifiable Expenses and amounts paid in settlement if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Corporation, except that no indemnification shall be made under this subsection in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged by a court of competent jurisdiction that Indemnitee is liable to the condition that the Reviewing Party shall not have determined (in a written opinionCorporation, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable lawunless, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and only to the extent that, the court in which such Proceeding was brought or another court of competent jurisdiction determines upon application that in view of all the Reviewing Party determines circumstances of the case, that Indemnitee would not is fairly and reasonably entitled to indemnity for such Indemnifiable Expenses and amounts paid in settlement, then Indemnitee shall be permitted entitled to be so indemnified payment in such amount as such court deems proper. In addition, the Corporation shall indemnify and hold harmless the Indemnitee from and against any and all federal, state, local or foreign taxes (if any) imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement.
(c) Except as otherwise prohibited under applicable law, the Company Proceedings described in Sections 3(a) and 3(b) hereof shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) include, for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court purposes of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable lawthis Agreement, any determination made by Proceedings that involve, directly or indirectly, activities of the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding both in his or her official capacities as a Director or Officer and Indemnitee shall not be required to reimburse actions taken in another capacity while serving as Director or Officer on behalf of the Company for any Expense Advance until a final judicial determination is made with respect thereto Corporation.
(as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse d) Notwithstanding the Company for Expense Advances shall be unsecured and no interest shall be charged thereonexceptions listed in Section 4 below, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there that Indemnitee has been such a Change successful on the merits or otherwise in Control, other than a Change in Control which has been approved by a majority defense of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel any Proceeding referred to in Section 3 hereof. If there has been no determination by the Reviewing Party subsections 3(a) or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole 3(b), or in part under applicable lawdefense of any claim, issue, or matter therein, Indemnitee shall be indemnified by the Corporation against Indemnifiable Expenses actually and reasonably incurred by Indemnitee in connection therewith.
(e) If Indemnitee is entitled under any provisions of this Agreement to indemnification by the Corporation for some or a portion of Indemnifiable Amounts but not, however, for the total amount thereof, the Corporation shall nevertheless indemnify Indemnitee for the portion of such Indemnifiable Amounts to which Indemnitee is entitled.
(f) For purposes of this Section 3 only, the Indemnitee shall be deemed to have acted in good faith and in a manner the right Indemnitee reasonably believed to commence litigation be in or not opposed to the best interests of the Corporation, or, with respect to any criminal Proceeding, to have had no reasonable cause to believe the Indemnitee’s conduct was unlawful, if such action was based on a reasonable reliance upon any of the following: (i) the records or books of the Corporation or applicable Entity, including financial statements; (ii) information supplied to the Indemnitee by the officers of such Entity in the course of their duties; (iii) the advice of legal counsel for the Corporation or the applicable Entity; or (iv) information or records given in reports made to the Corporation or the applicable Entity by its independent certified public accountant or by an appraiser or other expert selected with reasonable care by such entity. The provisions of this Section 3(f) shall not be deemed to be exclusive or to limit in any court in way the States of California or Delaware having subject matter jurisdiction thereof and other circumstances in which venue is proper seeking an initial determination by the court or challenging any such determination by Indemnitee may be deemed to have met the Reviewing Party or any aspect thereof, and the Company hereby consents to service applicable standard of process and to appear conduct set forth in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteethis Section 3.
Appears in 1 contract
Agreement to Indemnify. Each Company Stockholder shall severally (abased on each Company Stockholder’s Pro Rata Share), and not jointly, indemnify and hold harmless Macrovision and its officers, directors, agents, representatives, stockholders and employees, and each Person, if any, who controls or may control Macrovision within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as an “Macrovision Indemnified Person” and collectively as “Macrovision Indemnified Persons”) In the event Indemnitee wasfrom and against, is or becomes a party to or witness or other participant inwithout duplication, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenseslosses, judgmentscosts, finesdamages, penalties Liabilities and amounts paid in settlement (expenses, including all interestreasonable attorneys’ fees, assessments other professionals’ and other charges paid experts’ fees, costs of investigation and court costs for enforcement of this indemnification right and net of any insurance recovery or payable Tax benefit received in connection with such losses, costs, damages, Liabilities and expenses (hereinafter collectively referred to as “Damages”), directly or indirectly arising out of, resulting from or in connection with:
(i) any failure or breach of any representation or warranty made by the Company in Article III of this Agreement, to be true and correct as of the date of this Agreement and as of the Closing Date (as though such representation or warranty were made as of the Closing Date rather than the date of this Agreement, except in the case of any individual representation and warranty which by its terms speaks only as of a specific date or dates);
(ii) any failure of any certification, representation or warranty made by the Company pursuant to Section 7.2 to be true and correct as of the date such certificate is delivered to Macrovision;
(iii) any breach of or default in connection with any of the covenants or agreements made by the Company in this Agreement;
(iv) any Third Party Claim (as defined below) relating to any breach or failure referred to in clause (i) through (iii) above;
(v) any inaccuracies in the Company’s capitalization as of immediately prior to the Effective Time (as set forth in final form of Schedule 3.4(a) updated and delivered in accordance with the provisions in the definition of the “Spreadsheet” in Article I); or
(vi) any Pre-Closing Taxes, but only to the extent that such Taxes are in excess of the amount, if any, reserved for such Taxes (excluding any reserve for deferred income taxes established to reflect timing differences between book and Tax income) on the Closing Date Statement and taken into account in determining the Net Working Capital Adjustment. In no event shall any party be entitled to duplicate payment, reimbursement, indemnification, adjustment or other form of recovery in respect of any Damages, except to the extent any such Expenses, judgments, fines, penalties recovery by the party entitled to indemnification is in some way reduced or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee disgorged as a result of the actual or deemed receipt other party’s breach and provided further that the recovery with respect to Damages arising from an occurrence shall not in any way limit such party’s right to recover in respect of any payments under this Agreement, including other or additional Damages arising from the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by lawsame occurrence.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Sources: Merger Agreement (Macrovision Corp)
Agreement to Indemnify. (a) In Each of Parent, Acquisition Sub and their respective Affiliates (collectively, the event "BUYER INDEMNITEES") shall each be indemnified and held harmless to the extent set forth in this Article IX by each Shareholder, in its respective Pro Rata Portion, in respect of any and all Damages incurred by any Buyer Indemnitee wasas a result of:
(1) any inaccuracy or misrepresentation in or breach of any representation, is warranty, covenant or becomes agreement made in this Agreement by the Company or any Shareholder at any time;
(2) any Environmental Liability (regardless of whether such Environmental Liability constitutes a party to breach of any representation or witness or other participant inwarranty contained in this Agreement): (A) of the Company, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (whether presently in existence or arising in part out ofhereafter which arises from acts, events, conditions or circumstances existing or occurring on or before the Closing Date; or (B) an Indemnifiable Eventrelating to the Business, the Company shall indemnify Indemnitee or the Real Property, which arises from acts, events, conditions or circumstances existing or occurring on or before the Closing Date;
(3) all Taxes for which the Company is or could be held liable with respect to (i) any taxable period ending on or prior to the fullest Closing Date, and (ii) any taxable period that includes and ends after the Closing Date (an "OVERLAP PERIOD") in an amount equal to the liability for Taxes that would have resulted had the Overlap Period ended at the close of business on the Closing Date (utilizing, if applicable, the actual tax rate imposed on a particular category of income by the applicable taxing jurisdiction), in each case except to the extent permitted by lawsuch Taxes are included and specifically identified as a liability for such Taxes in the Final Calculation; and
(4) any Liability of any kind, as soon as practicable but including, without limitation, excise Taxes, income Taxes, fines, interest or penalties, relating in any event no later than thirty (30) days after written demand is presented way to the Company's allowing its employees to pay for the employees' portion of certain welfare benefits via payroll deduction on a pre-Tax basis, against at the employee's election, without having adopted a written pre-Tax payment plan under section 125 of the Code. Parent and Acquisition Sub shall be entitled to recover such Damages pursuant to the Escrow Agreement, subject to the terms and conditions thereof, but shall have no obligations to exhaust remedies thereunder.
(b) The Shareholders and their respective Affiliates (collectively, the "COMPANY INDEMNITEES") shall each be indemnified and held harmless to the extent set forth in this Article IX by Parent and Acquisition Sub in respect of any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and Damages incurred by any federal, state, local or foreign taxes imposed on the Company Indemnitee as a result of the actual any inaccuracy or deemed receipt misrepresentation in or breach of any payments under representation, warranty, covenant or agreement made by the Parent and Acquisition Sub in this Agreement.
(c) Nothing set forth in this Article IX shall be deemed to prohibit or limit any Buyer Indemnitee's or Company Indemnitee's right at any time before, including on or after the creation Closing Date, to seek injunctive or other equitable relief for the failure of any Indemnifying Party to perform any covenant or agreement contained herein.
(d) The maximum aggregate liability of each Shareholder to indemnify the Trust pursuant to Buyer Indemnitees under Section 4 hereof. Notwithstanding anything 9.01(a)(2) and for breaches of representations and warranties contained in this Agreement to the contrary and except as provided in Section 5, Indemnitee under this Article IX shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer exceed its Pro Rata Portion of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten Four Million Dollars (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"$4,000,000); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(be) Notwithstanding the foregoingThe Shareholders shall have no obligation to pay any amount of indemnity under Sections 9.01(a)(1), (i2) and (3) unless and until the obligations aggregate amount of Damages incurred in respect of all claims for which indemnity would be payable by the Company Shareholders under Sections 9.01(a)(1), (2) and (3) but for this Section 2(a9.01(e) exceeds Fifty Thousand Dollars ($50,000) (the "DEDUCTIBLE"), whereupon each Shareholder shall be liable under Sections 9.01(a)(1), (2) and (3) (subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation other limitations of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Companythis Article IX) for its Pro Rata Portion of all amounts of such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by Damages over the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeDeductible.
Appears in 1 contract
Sources: Merger Agreement (Magnetek Inc)
Agreement to Indemnify. (a) In the event Indemnitee INDEMNITEE was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company INSIGHT shall indemnify Indemnitee INDEMNITEE to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand request is presented to the CompanyINSIGHT, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee INDEMNITEE as a result of the actual or deemed receipt of any payments under this Agreement. INSIGHT shall select counsel to defend INDEMNITEE (which defense counsel shall be reasonably satisfactory to INDEMNITEE). Any written request for indemnification shall include sufficient documentation or information reasonably available to INDEMNITEE to support INDEMNITEE’s claim for indemnification. The president or secretary or other appropriate officer of INSIGHT shall promptly, including upon receipt of INDEMNITEE’s request for indemnification, advise the creation of the Trust pursuant to Section 4 hereofBoard in writing that INDEMNITEE has made such request. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 52.03, Indemnitee INDEMNITEE shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee INDEMNITEE against the Company INSIGHT or any director director, officer or officer key employee of the Company INSIGHT, unless the Company INSIGHT has joined in or consented to the initiation of such Proceeding. If so requested by IndemniteeINDEMNITEE, the Company INSIGHT shall advance, advance (within ten (10) business days of such request, ) any and all Expenses to Indemnitee INDEMNITEE (an "“Expense Advance"”); provided, however, that such Expenses shall be advanced only upon delivery to the Company INSIGHT of an undertaking by or on behalf of the Indemnitee INDEMNITEE to repay such amount if it is ultimately determined that Indemnitee INDEMNITEE is not entitled to be indemnified by INSIGHT. Further, no indemnification shall be made for the Company; provided further, that accounting of profits made from the Company shall make such advances only to purchase or sale by INDEMNITEE of any securities of INSIGHT or the extent permitted by Parent within the meaning of Section 16(b) of the Exchange Act or similar provision of any state statutory or common law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company INSIGHT under Section 2(a2.01(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 2.02 hereof is involved) that Indemnitee INDEMNITEE would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company INSIGHT to make an Expense Advance pursuant to Section 2(a2.01(a) shall be subject to the condition that, that if, when and to the extent that the Reviewing Party determines that Indemnitee INDEMNITEE would not be permitted to be so indemnified under applicable law, the Company INSIGHT shall be entitled to be reimbursed by Indemnitee INDEMNITEE (who hereby agrees to reimburse the CompanyINSIGHT) for all such amounts theretofore paid; provided, however, that if Indemnitee INDEMNITEE has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee INDEMNITEE should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee INDEMNITEE would not be permitted to be indemnified under applicable law shall not be binding binding, and Indemnitee INDEMNITEE shall not be required to reimburse the Company INSIGHT for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's INDEMNITEE’s obligation to reimburse the Company INSIGHT for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of DirectorsINSIGHT Board, and if there has been such a Change in Control, Control (other than a Change in Control which has been approved by a majority of the Company's INSIGHT Board of Directors who were directors immediately prior to such Change in Control), the Reviewing Party shall be the special, independent counsel referred to in Section 3 2.02 hereof. If there has been no determination by the Reviewing Party within thirty (30) days after written demand is presented to INSIGHT by INDEMNITEE, or if the Reviewing Party determines that Indemnitee INDEMNITEE substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee INDEMNITEE shall have the right to commence litigation litigation, after giving INSIGHT ten (10) days’ prior written notice thereof, in any court in the States states of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company INSIGHT hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company INSIGHT and IndemniteeINDEMNITEE.
Appears in 1 contract
Sources: Indemnification Agreement (Insight Health Services Holdings Corp)
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party The Company hereby agrees to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall hold harmless and indemnify Indemnitee to the fullest extent permitted by law, as soon such may be amended from time to time, as practicable but in any event no later than thirty follows:
(30a) days after written demand is presented Subject to the exceptions contained in Section 10(a)(ii) below, if Indemnitee was or is a party or is threatened to be made a party to any Proceeding (other than a Proceeding by or in the right of the Company) by reason of Indemnitee’s Company Status, Indemnitee shall be indemnified by the Company against any and all Expenses, judgments, finespenalties, penalties fines and amounts paid in settlement (including all interestactually and reasonably incurred by him, assessments and other charges paid or payable on his behalf, in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director claim, issue or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by lawmatter therein.
(b) Notwithstanding Subject to the foregoingexceptions contained in Section 10(a)(iii) below, if Indemnitee was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company to procure a judgment in its favor by reason of Indemnitee’s Company Status, Indemnitee shall be indemnified by the Company against all Expenses incurred or paid by the Indemnitee in connection with such Proceedings.
(ic) If any Apax Fund is, or is threatened to be made, a party to or a participant in any Proceeding, then to the extent the Apax Fund’s involvement in the Proceeding arises from the Indemnitee’s service to the Company as an officer or director of the Company, the Apax Fund shall be entitled to all of the indemnification rights and remedies, and shall to the extent indemnified hereunder, undertake the obligations of the Company Indemnitee, under Section 2(a) shall be subject this Agreement to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that same extent as Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the same extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified as if such Apax Fund was a party hereto. Each Apax Fund is an intended third party beneficiary under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteethis Agreement.
Appears in 1 contract
Sources: Director Indemnification Agreement (Bankrate, Inc.)
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee Subject to the fullest extent permitted by lawconditions and provisions set forth in this Article VIII, as soon as practicable but in any event no later than Seller agrees, upon the lapse of the thirty (30) days day period after written demand Seller is presented notified in writing of such a demand, claim, action or cause of action, to indemnify, defend and hold harmless the Buyer from and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including reasonable attorney's fees, asserted against or imposed upon or incurred by the Buyer, as the case may be, directly or indirectly, in whole or in part, resulting from (i) all debts, liabilities and obligations, actual or alleged, arising at any time from or related to the Companyownership, against control or operation of the Assets or Business by Seller prior to Closing, (ii) sales taxes imposed upon Seller and arising out of the operation of the Businesses or with respect to Seller's ownership, use, control, operation or sale of the Assets, (iii) any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid obligation of Seller pertaining to interest on the shareholder loans whether directly to the shareholder advancing funds to Seller or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and to any federal, statestate or local tax authority, (iv) a breach of any covenant, or the inaccuracy in any respect of any representation or warranty, of Seller contained in or made pursuant to this Agreement and (v) all other liabilities for which the Buyer may become liable and which are covered by this indemnity, including, without limitation, all federal, state and local taxes applicable to the ownership, control or foreign taxes imposed operation of the Assets on and prior to the Indemnitee Closing Date and liabilities arising as a result of the actual calculation of same.
(b) Subject to the conditions and provisions of this Article VIII, Buyer agrees, upon the lapse of the thirty (30) day period after Buyer is notified in writing of such a demand, claim, action or deemed receipt cause of action, to indemnify, defend and hold harmless the Seller from and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, cost and expenses, including reasonable attorney fees, asserted against or imposed upon or incurred by the Seller, as the case may be, directly or indirectly, in whole or in part, resulting from (i) the failure of Buyer to pay any of the Assumed Liabilities (except as may be set forth in Section 1.2 above), (ii) a breach of any payments under covenant, or other inaccuracy in any respect of any representation or warranty, of Buyer contained in or made pursuant to this Agreement, (iii) any and all claims and contingent liabilities relating to the Assumed Liabilities, including the creation without limitation any contingent liabilities, whether now existing or hereafter arising, pertaining to Seller's and/or Buyer's utilization of the Trust pursuant to Section 4 hereof. Notwithstanding anything in names "Eyesite" and "eyesite.com", and (iv) xxx xxxxx liabilities for which Seller may become liable and which are covered by this Agreement indemnity, including, without limitation, all federal, state and local taxes applicable to the contrary ownership, control or operation of the Assets after the Closing Date and except liabilities arising as provided in Section 5a result of the calculation of same.
(c) All of the adjustments, Indemnitee shall not demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses to which a party may be entitled to recover or for which such party may be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall hereinafter be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) as the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee"Indemnification Claims".
Appears in 1 contract
Sources: Asset Purchase Agreement (Rhino Enterprises Group Inc)
Agreement to Indemnify. (a) In Subject to the event limitations provided herein, Buyer, ATC and their Affiliates (collectively, the "Buyer Indemnitees") shall each be indemnified and held harmless to the extent set forth in this Article IX by Seller and the Stockholder, jointly and severally, in respect of any Damages reasonably and proximately incurred by any Buyer Indemnitee was(i) as a result of any inaccuracy or misrepresentation in or breach of or failure to perform any representation, is warranty, covenant, agreement or becomes obligation of Seller or the Stockholder in this Agreement, (ii) as a party result of Buyer's waiver of compliance with applicable "bulk sales" laws pursuant to Section 6.02 or witness or other participant in(iii) in connection with any Excluded Liability. Notwithstanding the foregoing, or is threatened Seller and the Stockholder shall not be liable as Indemnifying Parties until all claims by the Buyer Indemnitees for indemnification exceed $10,000 in the aggregate, and thereafter Seller and the Stockholder shall be liable for all indemnification claims up to the aggregate liability set forth in Section 9.01(c); PROVIDED, HOWEVER, that Seller and the Stockholder shall be made a party to or witness or other participant inliable for all claims by the Buyer Indemnitees, a Proceeding by reason regardless of amount, arising out of (i) the fraud or arising in part out ofwillful misconduct of Seller or the Stockholder or (ii) an Indemnifiable Eventany Environmental Liability, other than Buyer Environmental Liabilities.
(b) Seller, the Company Stockholder and their Affiliates (collectively the "Seller Indemnitees") shall indemnify Indemnitee each be indemnified and held harmless to the fullest extent permitted set forth in this Article IX by lawBuyer and ATC, as soon as practicable but jointly and severally, in any event no later than thirty (30) days after written demand is presented to the Company, against respect of any and all Expenses, judgments, fines, penalties Damages reasonably and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and proximately incurred by any federal, state, local or foreign taxes imposed on the Seller Indemnitee as a result of the actual (i) any inaccuracy or deemed receipt misrepresentation in or breach of or failure to perform any payments under representation, warranty, covenant, agreement or obligation of Buyer or ATC in this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation conduct of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to Business after the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee Closing or (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsediii). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Sources: Asset Purchase Agreement (Aftermarket Technology Corp)
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the The Company shall indemnify the Indemnitee for reasonable legal fees (“Defense Expenses”), in the single aggregate amount up to, but no more than, ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) (“Maximum Aggregate Indemnification Limit”), incurred by the Indemnitee after January 1, 2011 (including the balances of any retainers for legal services paid prior to the fullest extent permitted by lawdate of this Agreement but unexhausted as of January 1, as soon as practicable but 2011), in any event no later than thirty (30) days after written demand is presented to the Company, against defense of any and all Expensesproceedings based on, judgmentsarising out of, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect any way relating to the Other Service that he has rendered prior to the date of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on this Agreement. Indemnitee agrees that he will be entitled to receive only up to the Indemnitee Maximum Aggregate Indemnification Limit as a result of all his Other Service rendered prior to January 1, 2011, whether under the actual Articles of Incorporation or deemed receipt Bylaws of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director the Bank, the Employment Agreement or officer applicable law and regardless of the Company unless number of claims, claimants or proceedings, the Company has joined number of entities to which Indemnitee rendered Other Service, the positions in or consented to which he served, the initiation duration of such Proceeding. If so Other Service or whether requested by Indemnitee, the Company shall advance, within ten (10) business days of or authorized to render such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified Other Service by the Company; provided further, that the Company shall make such advances only to Bank or both, and regardless of whether the extent permitted by lawproceedings are pending, threatened, brought in the future or completed.
(b) Notwithstanding The Indemnitee shall be entitled to seek advancement of Defense Expenses he incurs in advance of the foregoingtermination of a proceeding, and the Company and the Bank agree to advance Defense Expenses, upon his compliance with the requirements of the Company’s Bylaws and applicable law.
(c) The Indemnitee hereby waives any other rights to indemnification and advancement by the Company or the Bank based upon or arising out of Other Service rendered prior to the date of this Agreement, whether pursuant to provisions of (i) the obligations Articles of Incorporation of the Company under Section 2(a) shall be subject to or the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and Bank; (ii) the obligation Bylaws of the Company to make an Expense Advance pursuant to Section 2(aor the Bank; (iii) shall be subject to the condition thatEmployment Agreement; (iv) any other resolution, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court agreement or understanding of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, ; (v) any other than a Change in Control which has been approved by a majority of agreement with the Company's Board of Directors who were directors immediately prior to such Change in Control, Company or the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party Bank or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under (vi) applicable law, . The Indemnitee shall have agrees that all his rights to indemnification under the right to commence litigation in any court in the States Articles of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service Incorporation of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteethe Bank, the Bylaws of the Company and the Bank, the Employment Agreement and applicable law are limited to Defense Expenses and that he waives any and all rights of indemnification for any judgments, settlements, fines, penalties, excise taxes or other liabilities (other than liability for Defense Expenses) that he may incur as a result of such Other Service rendered prior to January 1, 2011.
(d) No provision in this Agreement shall require the Company or the Bank to provide the Indemnitee with any indemnification, advancement, reimbursement or payment (i) that constitutes a “prohibited indemnification payment” within the meaning of 12 C.F.R. § 359.1(l)(1) or 12 C.F.R. § 359.5; (ii) that violates the requirements of other applicable law; or (iii) that is otherwise prohibited under the Articles of Incorporation of either the Company or the Bank, the Bylaws of either the Company or the Bank, or the Employment Agreement, as each such document is in effect as of the date of this Agreement.
(e) The Indemnitee shall continue to retain all rights to indemnification he may have, arising under (i) the Articles of Incorporation of the Company and the Bank; (ii) the Bylaws of the Company or the Bank; (iii) the Employment Agreement, (iv) any other resolution, agreement or understanding of the Board of Directors; (v) any other agreement with the Company or the Bank; (vi) applicable law; or (vii) otherwise, with respect to proceedings based upon or arising out of his service as an officer or director of the Company or the Bank, or any subsidiary of the Company or the Bank, or Other Service, provided such Other Service is rendered after the date of this Agreement.
Appears in 1 contract
Sources: Indemnification Agreement (Crescent Financial Corp)
Agreement to Indemnify. (ai) In Subject to the limitations set forth in this Agreement, Wolverine, on the one hand, and Purchaser, on the other hand, (separately, the “Indemnifying Party”) shall indemnify, defend and hold the other (and the other’s respective officers, directors, managers, employees, representatives, and agents) (collectively, the “Indemnified Parties”) harmless from and against, and shall pay to such persons and reimburse such persons for, any and all Damages arising, directly or indirectly, from or in connection with:
(A) any breach of any representation and warranty of the Indemnifying Party contained in this Agreement or in any certificate delivered at or in connection with the Accelerated Purchase Closing; or
(B) any inaccuracy in any representation and warranty of an Indemnifying Party contained in this Agreement as of the Accelerated Closing Date, giving any effect to any written information delivered to the Indemnified Party at or before the Accelerated Purchase Closing; or
(C) any breach or alleged breach of any covenant or agreement of the Indemnifying Party (or with respect to Wolverine, by W/Investments) contained in this Agreement or in a certificate delivered at the Accelerated Purchase Closing; or
(D) any and all indebtedness, obligations, and other liabilities of W/Investments, whether known or unknown, absolute, contingent, fixed or otherwise (collectively, the “Retained Liabilities”), whether existing, accrued, due or payable or are claimed to exist or to accrue or be due or payable for any period prior to September 15, 2008 (the “Retained Liabilities Effective Date”), even though such Retained Liabilities are discovered or asserted after the Retained Liabilities Effective Date. Solely for the purposes of this Section 8(a)(i)(D), the Indemnifying Party shall be Wolverine and the Indemnified Parties shall be Purchaser.
(ii) The representations and warranties of Wolverine contained in Section 4, on the one hand, and of Purchaser contained in Section 6, on the other hand, of this Agreement shall survive for a period of twelve (12) months following the Accelerated Purchase Closing Date; provided however, that the representations and warranties concerning taxes contained in Section 4(l) shall survive until the expiration of the statute of limitations under Applicable Law. The representations and warranties of Wolverine contained in Section 5 of this Agreement shall survive for a period of twelve (12) months following March 13, 2008; provided, however, in the event Indemnitee wasWolverine Shanghai does not deliver its audited financial statements for the fiscal year ending December 31, 2008 (the “2008 Financial Statements”) to Purchaser on or before February 14, 2009, this Agreement shall survive until the thirtieth (30th) day immediately following the date on which the 2008 Financial Statement is actually delivered to Purchaser; and provided further, however, that the representations and warranties concerning taxes contained in Section 5(k) shall survive until the expiration of the statute of limitations under Applicable Law. No representation or becomes warranty shall be deemed to be waived or otherwise diminished unless waived or otherwise diminished by express written consent. A party’s consummation of the transactions contemplated hereby after waiving any of the conditions to its obligation to close (including the condition that the other party’s representations and warranties be true in all material respects) shall limit or otherwise affect its rights to recover under this Agreement; provided, however, that in no event shall a party party’s decision to consummate the transactions contemplated hereby (“Closing Party”) be deemed to waive, limit or witness otherwise affect the other party’s indemnity obligations hereunder or the Closing Party’s rights to recover for a breach of the representations and warranties contained in Sections 4(c), 5(b), and 6(b) of this Agreement. Further, the parties expressly agree that, notwithstanding the provisions of Section 8(a)(i), the terms and conditions of Section 8(a)(i) shall be separate from and independent of the terms and conditions of this Section 8(a)(iv), such that no claim for indemnification which arises from the indemnification described in Section 8(a)(iv) shall be included in any claim for indemnification pursuant to Section 8(a)(i) and that no claim for indemnification which arises from the indemnification described in Section 8(a)(i) shall be included in any claim for indemnification pursuant to Section 8(a)(iv).
(iii) Notwithstanding the foregoing, any indemnification relating to any goods manufactured, sold, marketed, or distributed or services provided by Wolverine Shanghai, Wolverine or its other Affiliates, or Purchaser or its Affiliates before the Closing shall not be governed by the terms and conditions of this Agreement, but shall be subject to those of the Voting Rights Agreement.
(iv) Subject to the limitations set forth in Section 8(b) of this Agreement, Wolverine (the “Chinese Payment Indemnifying Party”) shall indemnify, defend and hold each of W/Investments, Wolverine Shanghai, and Purchaser (and the officers, directors, or owners, as the case may be, of W/Investments, Wolverine Shanghai, and Purchaser) (collectively, the “Chinese Payment Indemnified Parties”) harmless from and against, and shall pay to such persons and reimburse such persons for, any and all amounts actually paid by such Chinese Payment Indemnified Party which arises directly from or in connection with a claim by the People’s Republic of China that amounts are due from Wolverine Shanghai (or from W/Investments or Purchaser strictly and directly as a result of the direct or indirect, respectively, ownership of an interest in Wolverine Shanghai) under the local, regional, national or other participant inlaws of the People’s Republic of China with respect to the “capital gain” on the sale of the Optioned 20% Interest by Wolverine (that is, a tax on the difference between the purchase price and the tax basis in the twenty-percent (20%) ownership interest by Wolverine on March 14, 2008) (the “Claimed Chinese Payment”). Purchaser, for itself, or is threatened to be made a party to on behalf of W/Investments or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by lawWolverine Shanghai, as soon the case may be and as practicable but in any event no later than it shall specifically give notice of to Wolverine, shall claim indemnification under this Section 8(a)(iv) by giving Wolverine written notice of the Claimed Chinese Payment within thirty (30) days after Purchaser receives written demand is presented notice of such Claimed Chinese Payment, which notice by Purchaser shall, if and to the Companyextent known by Purchaser after reasonable investigation, set forth the nature and amount of the Claimed Chinese Payment, the person against any which such Claimed Chinese Payment is made by the People’s Republic of China and copies of all Expensesrelevant documents related to such Claimed Chinese Payment (if such documents are available to Purchaser), judgmentsand the date when assessed, finesclaimed or incurred. Wolverine shall either pay such claim by Purchaser or give written notice to Purchaser of Wolverine’s disagreement with such claim, penalties specifying in reasonable detail the nature and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect extent of such Expenses, judgments, fines, penalties disagreement on or amounts paid in settlementbefore: (A) ten (10) days before the Claimed Chinese Payment is due or (B) thirty (30) days following Purchaser’s notice of such Proceeding claim, whichever shall first occur. If Purchaser and Wolverine are unable to resolve any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except disagreement as provided in Section 59(a), Indemnitee shall not be entitled then Purchaser and Wolverine agree to arbitrate such claim for indemnification pursuant to this Agreement Section 8(a)(iv) as otherwise provided in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such ProceedingSection 9. If so requested by IndemniteeThe rights, the Company shall advance, within ten (10) business days of such request, any duties and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under parties contained in this Section 2(a8(a)(iv) hereof shall be subject to survive the condition that Closing until the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation later of expiration of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court statute of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a limitations or final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority resolution of the Company's Board Claimed Chinese Payment, if a claim is pending as of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be expiration of the special, independent counsel referred to in Section 3 hereof. If there has been no determination by statute of limitations of the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeClaimed Chinese Payment.
Appears in 1 contract
Sources: Optioned 20% Interest Purchase Agreement (Wolverine Tube Inc)
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee Subject to the fullest extent permitted by lawlimitations set forth in this Article 12, from and after the Effective Time, each Effective Time Holder shall severally (based on each such holder’s Pro Rata Share), and not jointly, indemnify and hold harmless Acquiror and its officers, directors, agents, representatives, stockholders and employees, and each person, if any, who controls or may control Acquiror within the meaning of the Securities Act or the Exchange Act (each hereinafter referred to individually as soon an “Acquiror Indemnified Person” and collectively as practicable but in any event no later than thirty (30“Acquiror Indemnified Persons”) days after written demand is presented to the Company, from and against any and all Expenseslosses, judgmentscosts, finesdamages, penalties Liabilities and amounts paid in settlement expenses (including all interestreasonable attorneys’ fees, assessments other professionals’ and other charges experts’ fees, costs of investigation and court costs), calculated net of actual recoveries under existing insurance policies (hereinafter collectively referred to as “Damages”), paid or payable in connection with incurred by the Acquiror Indemnified Parties, directly or in respect of such Expensesindirectly arising out of, judgments, fines, penalties or amounts paid in settlementresulting from: (i) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt failure of any payments under representation or warranty made by the Company in this Agreement, including the creation of the Trust pursuant Company Disclosure Letter, any Company Ancillary Agreement or any exhibit or schedule to Section 4 hereof. Notwithstanding anything in this Agreement to be true and correct as of the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to date of this Agreement (as though such representation or warranty were made as of the date of this Agreement, except in the case of representations and warranties which by their terms speak only as of a specific date or dates); (ii) any failure of any certification, representation or warranty made by the Company in any Company Certificate to be true and correct as of the date such certificate is delivered to Acquiror; (iii) any breach of or default in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in covenants or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination agreements made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse Company in this Agreement the Company for Disclosure Letter, any Expense Advance until a final judicial determination is made with respect thereto Company Ancillary Agreement or any exhibit or schedule to this Agreement; (iv) any inaccuracies in the Spreadsheets as of the Closing Date; (v) any Indemnifiable Deal Fees and Excess Payroll Service Charges; (vi) any Dissenting Shares Excess Payments; (vii) any AR Shortfall; (viii) any amounts payable under the Retention Plan that were not deducted as part of the Retention Plan Net Initial Merger Consideration Exclusion Amount or the Retention Plan Net Contingent Merger Consideration Exclusion Amount; (ix) any Qualifying Customer Transition Expenses; or (x) any claim by any Person related to which all ownership of Company Common Stock, Company Options, Company Warrants or other rights to acquire ownership of appeal therefrom have been exhausted any shares of Company Capital Stock, including, without limitation, any claim by any Company Securityholder or have lapsed)Retention Plan Participant related to the cancellation or termination of Company Capital Stock, Company Options or Company Warrants in the Merger, the terms of the Merger or the treatment of such Person in the Merger. Indemnitee's obligation to reimburse In determining the Company for Expense Advances amount of any Damages, any materiality standard contained in such representation or warranty shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteedisregarded.
Appears in 1 contract
Agreement to Indemnify. Following the Closing and subject to the limitations set forth herein,
(a) In the event Indemnitee wasStockholders shall severally, on a pro rata basis in accordance with their ownership of Company Common Stock, indemnify and agree to defend and hold harmless Parent, the Merger Sub, for periods prior to Closing, and the Surviving Entity, for periods after Closing (and their respective Affiliates, officers, directors, employees, representatives and agents) (“Parent Indemnified Persons” and, singularly, a “Parent Indemnified Person”) against and in respect of any and all Damages, by reason of or otherwise arising out of:
(i) Parent Indemnified Taxes;
(ii) any amount Parent is entitled to claim as Damages calculated in accordance with Section 2.07(c);
(iii) any claim by an employee, former employee, independent contractor or becomes a party former independent contractor of the Company, or any other person or entity, based upon (A) such employee’s or former employee’s employment or such independent contractor’s or former independent contractor’s contract with the Company prior to the Effective Time, (B) the termination of employment of current or witness former employees or current or former independent contractors of the Company prior to the Effective Time, or (C) any severance arrangements or payments or any benefit, salary, bonus, commission or other participant in, compensation payments made or is threatened required to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee connection with such terminations prior to the fullest extent permitted Effective Time;
(iv) any claim by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to a Stockholder or former stockholder of the Company, or any other person or entity, against the Company or any and all Expensesof its Affiliates, judgmentsofficers, finesdirectors, penalties and amounts paid in settlement employees or agents, based upon any rights of a stockholder (other than the right of the Stockholders to receive Merger Consideration pursuant to this Agreement), including all interestappraisal rights under the applicable provisions of the DGCL, assessments and other charges paid any option, preemptive rights or payable rights to notice or to vote;
(v) any expenses incurred by the Company in connection with or in respect of such Expenses, judgments, fines, penalties or amounts this Agreement and the transactions contemplated hereby which are not paid in settlement) of such Proceeding by the Company prior to the Closing and any federal, state, local or foreign taxes imposed which are not reflected on the Indemnitee as Closing Date Statement;
(vi) a result breach of the actual a representation, warranty or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything covenant contained in this Agreement to made by the contrary and except as provided Company; or
(vii) a breach of a representation, warranty or covenant contained in Section 5this Agreement made by such Principal. provided, Indemnitee shall that, the Parent Indemnified Persons will not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company Section 10.01(a) unless the Company has joined aggregate amount of all Damages for which indemnification is sought by the Parent Indemnified Persons exceeds $100,000 (the “Parent Indemnification Basket”), in or consented which case the Parent Indemnified Persons will be entitled to indemnification for the initiation full amount of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance")Damages; provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company Parent Indemnification Basket shall make such advances only not apply to any claim for indemnification based on items (i), (ii), (iii), (iv), (v) and (vii) above or any claim for indemnification under item (vi) above to the extent permitted such claim relates to a breach of representation, warranty or covenant under Section 4.01, Section 4.02, Section 4.06, Section 4.08, Section 4.09, Section 4.11, Section 4.13 or Section 4.17. It is understood and agreed by lawthe Parent Indemnified Persons that indemnification hereunder is provided only severally by the Stockholders, and, except as provided to the extent they are Stockholders, is not provided, directly or indirectly, jointly or severally, by the Principals based upon their making representations, warranties or covenants hereunder or their execution of this Agreement or otherwise. The alleged breach or breach of a Stock Restriction and Non-Compete Agreement by a Stockholder shall not be an indemnifiable claim hereunder.
(b) Notwithstanding Parent shall indemnify, defend and hold harmless the foregoingStockholders and their respective affiliates, representatives and agents (ithe “Stockholder Indemnitees”) the obligations against and in respect of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (any and all Damages by reason of or otherwise arising out of a breach by Parent or Merger Sub of any representation, warranty or covenant contained in a written opinionthis Agreement; provided, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would Stockholder Indemnitees will not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees indemnification pursuant to reimburse this Section 10.01(b) unless the Company) aggregate amount of all Damages for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made which indemnification is sought by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereonStockholder Indemnitees exceeds $100,000, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by case the court or challenging any Stockholder Indemnitees will be entitled to indemnification for the full amount of such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeDamages.
Appears in 1 contract
Sources: Merger Agreement (Perficient Inc)
Agreement to Indemnify. Following the Closing, Sellers (athe “Indemnifying Parties”) In shall jointly and severally indemnify and hold harmless Buyer and its subsidiaries (including, after Closing, Targets), their respective officers, directors, employees, agents, representatives and equityholders, and each person, if any, who controls or may control Buyer or any of its subsidiaries within the event Indemnitee was, is meaning of the Securities Act or becomes the Exchange Act (each hereinafter referred to individually as a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of“Buyer Indemnified Person” and collectively as “Buyer Indemnified Persons”) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, from and against any and all Expensesdamages, judgmentslosses, finescosts, penalties penalties, Liabilities and amounts paid expenses (including, in settlement each case to the extent it is finally determined that a Buyer Indemnified Person is entitled to indemnification hereunder for the underlying claim, reasonable attorneys’ fees, other professionals’ and experts’ fees, costs of investigation and court costs) (including all interesthereinafter collectively referred to as “Damages”), assessments and other charges paid arising out of, resulting from or payable in connection with the following: (a) any breach of any representation or warranty made by any Seller Group Party in Article 3 or Article 4 or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlementany Seller Ancillary Agreement; (b) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt failure of any payments under this Agreementcertification, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company representation or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking warranty made by or on behalf of the Indemnitee any Seller Group Party in any certificate delivered to repay such amount if it is ultimately determined that Indemnitee is not entitled Buyer pursuant to any provision of this Agreement to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations true and correct as of the Company under Section 2(adate such certificate is delivered to Buyer; (c) shall be subject to any breach of or default in connection with any of the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted covenants or agreements to be indemnified under applicable law, and performed or complied with made by any Seller in this Agreement or any Seller Ancillary Agreement; (iid) any Indemnified Taxes; (e) any Target Debt not reflected in the obligation calculation of the Company to make an Expense Advance pursuant to Section 2(aFinal Purchase Price; (f) shall be subject to any Target Transaction Expenses not reflected in the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority calculation of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party Final Purchase Price; or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in (g) any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeExcluded Liabilities.
Appears in 1 contract
Agreement to Indemnify. Subject always to the provisions of this Agreement, the Articles, the Companies Law and all other applicable laws, the Company hereby agrees to hold harmless and indemnify the Indemnitee against all Expenses and Liabilities properly incurred or paid by the Indemnitee by reason of the Indemnitee’s Position to the fullest extent permitted by law. In furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a) In Subject to the event exceptions contained in Section 4, Section 6 and Section 8 below, if the Indemnitee was, was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness participant in any Proceeding (other than an action by or other participant in, a Proceeding in the right of the Company) by reason of (or arising in part out of) an Indemnifiable Eventthe Indemnitee’s Position, the Indemnitee shall be indemnified and held harmless by the Company shall indemnify against all Expenses and Liabilities properly incurred or paid by the Indemnitee to or on the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable Indemnitee’s behalf in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding (referred to herein as “Indemnifiable Expenses” and any federal“Indemnifiable Liabilities,” respectively, state, local or foreign taxes imposed on the Indemnitee and collectively as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"“Indemnifiable Amounts”); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject Subject to the condition that exceptions contained in Section 4, Section 6 and Section 8 below, if the Reviewing Party shall not have determined (in Indemnitee was or is, or is threatened to be made, a written opinion, party to or participant in any case Proceeding by or in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation right of the Company to make an Expense Advance pursuant to Section 2(a) procure a judgment in its favor by reason of the Indemnitee’s Position, the Indemnitee shall be indemnified and held harmless by the Company against all Indemnifiable Expenses.
(c) In addition to, and without regard to any limitations on, the indemnification provided for in Sections 3(a) and (b) but subject to the condition thatexceptions contained in Section 4, Section 6 and Section 8 below, the Indemnitee shall be indemnified and held harmless by the Company against all Indemnifiable Amounts if, when and to by reason of the extent that Indemnitee’s Position, the Reviewing Party determines that Indemnitee would not be permitted is, or is threatened to be so indemnified under applicable lawmade, a party to or participant in any Proceeding (including a Proceeding by or in the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse right of the Company) for all such amounts theretofore paid; provided, however, provided that if in no circumstances shall the Company be obligated to make any payment to the Indemnitee has commenced that it is advised by its legal proceedings in a court advisers would be unlawful under the laws of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made Jersey or is prohibited by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeArticles.
Appears in 1 contract
Agreement to Indemnify. (a) In Subject to the event Indemnitee waslimitations provided herein, is or becomes a party to or witness or other participant inBuyer, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of RBC and their Affiliates (or arising in part out of) an Indemnifiable Eventcollectively, the Company "Buyer Indemnitees") shall indemnify Indemnitee each be indemnified and held harmless to the fullest extent permitted set forth in this Article VIII by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or Seller in respect of such Expenses, judgments, fines, penalties or amounts paid in settlementany Damages reasonably and proximately incurred by any Buyer Indemnitee (i) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual any inaccuracy or deemed receipt misrepresentation in or breach of or failure to perform any payments under this Agreementrepresentation, including the creation warranty, covenant, agreement or obligation of the Trust pursuant to Section 4 hereof. Notwithstanding anything Seller in this Agreement to the contrary and except as provided in Section 5or any agreement, Indemnitee shall not be entitled to indemnification pursuant to this Agreement document or certificate delivered hereunder, (ii) in connection with any Proceeding initiated by Indemnitee against Excluded Liability, or (iii) in connection with any Liability arising during, or directly or indirectly associated with, the Company or any director or officer Interim Period and not constituting an ordinary course Liability of the Company unless type contained in the Company has joined June 30 Balance Sheet. Notwithstanding the foregoing, Seller shall not be liable as an Indemnifying Party with respect to any claim relating to an inaccuracy or misrepresentation in or consented breach of any representation or warranty under subsection (a)(i) above if Buyer had Knowledge of such inaccuracy, misrepresentation or breach on or before the Closing Date. Further, Seller shall not be liable as an Indemnifying Party until all claims by the Buyer Indemnitees for indemnification exceed $100,000 in the aggregate, and thereafter Seller shall be liable, subject to the initiation of such Proceeding. If so requested by Indemniteeother limitations provided for elsewhere in this Agreement, the Company shall advance, within ten (10) business days of such request, any and for all Expenses to Indemnitee (an "Expense Advance")indemnification claims; provided, however, that such Expenses Seller shall be advanced only upon delivery liable, subject to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified other limitations provided for elsewhere in this Agreement, for all claims by the Company; provided furtherBuyer Indemnitees, regardless of amount, arising out of (i) the fraud or willful misconduct of Seller, (ii) any Lien that does not constitute a Permitted Lien, (iii) any Third Party Claim or (iv) any Excluded Liability. The aggregate liability of Seller collectively under this Section 8.1(a) of this Agreement shall not exceed $3,000,000, provided, however, that there shall be no limit on the Company shall make such advances only to the extent permitted aggregate liability of Seller for Damages incurred by lawBuyer in connection with: (1) Seller's fraud or willful misconduct; (2) any Excluded Liability; or (3) a Third Party Claim arising from an Excluded Liability.
(b) Notwithstanding Seller and its Affiliates (collectively the foregoing, "Seller Indemnitees") shall each be indemnified and held harmless to the extent set forth in this Article VIII by Buyer and RBC in respect of any and all Damages reasonably and proximately incurred by any Seller Indemnitee as a result of (i) the obligations any inaccuracy or misrepresentation in or breach of the Company under Section 2(a) shall be subject or failure to the condition that the Reviewing Party shall not have determined (perform any representation, warranty, covenant, agreement or obligation of Buyer or RBC in a written opinionthis Agreement, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) failure of Buyer or RBC to pay and discharge the obligation Assumed Liabilities or (iii) the conduct of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to Business after the condition thatEffective Time, if, when and but only to the extent that (A) such Damages are directly attributable to periods following the Reviewing Party determines Effective Time, (B) such Damages are not proximately caused by actions of Seller prior to the Effective Time, (C) such Damages do not arise fr om an Excluded Liability, (D) if the underlying act or omission giving rise to such Damages began or occurred prior to the Effective Time and continued after the Effective Time, such Damages increased following such time that Indemnitee would not be permitted Buyer obtained Knowledge thereof and failed to be so indemnified under applicable lawtake reasonable actions after the Closing Date in response thereto, and (E) if such Damages arose by reason of Liabilities incurred during, or with respect to, the Company shall be entitled Interim Period, they are not subject to be reimbursed by Indemnitee Seller's indemnification responsibilities set forth in subsection (who hereby agrees to reimburse the Companya)(iii) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteeabove.
Appears in 1 contract
Agreement to Indemnify. Subject to Section 3 hereof, the Corporation shall indemnify the Indemnitee to the full extent permitted by law against expenses (aincluding attorneys' and other professionals' fees and other out-of- pocket expenses), judgments, fines and amounts paid in settlement actually and reasonably incurred by the Indemnitee in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative in nature ("Proceeding") In in which the event Indemnitee was, was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding in which the Indemnitee testifies by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations fact that the Indemnitee is or was a director, officer, employee or agent at any time after the Commencement Time of the Company under Section 2(a) shall be subject to Corporation or is or was at any time after the condition that Commencement Time serving at the Reviewing Party shall not have determined (in request of the Corporation as a written opiniondirector, in any case in which the specialofficer, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable lawemployee, trustee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise and (ii) any acts or omissions by the obligation Indemnitee in such capacity that occurred after the Commencement Time, so long as the Indemnitee acted or omitted to act in good faith and in a manner that the Indemnitee (x) reasonably believed to be in or not opposed to the best interests of the Company Corporation and (y) with respect to make an Expense Advance pursuant any criminal action or proceeding, had reasonable cause to Section 2(a) shall be subject to the condition thatbelieve was lawful; PROVIDED, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, howeverHOWEVER, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that jurisdiction, after exhaustion of all appeals therefrom, adjudges the Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required liable to reimburse the Company Corporation for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party amount or if the Reviewing Party determines that Indemnitee substantively would not be permitted pays an amount in settlement to be indemnified in whole or in part under applicable lawthe Corporation, the Corporation may indemnify the Indemnitee shall have for such amount only with the right to commence litigation in any court in the States approval of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteecourt.
Appears in 1 contract
Agreement to Indemnify. (a) In the event the Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to or has a reasonable belief that it may be made a party to or witness or other participant in, a Proceeding Claim by reason of (or arising in part out of) of an Indemnifiable Event, the Company shall indemnify the Indemnitee to the fullest extent permitted by law, as soon as practicable practicable, but in any event no not later than thirty (30) 60 days after written demand is presented to the Company, against for any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges Expenses paid or payable incurred by the Indemnitee in connection therewith. If the Indemnitee is entitled to indemnification by the Company for some or a portion of the Expenses in connection with a Claim, issue or in respect matter relating thereto, but not all of such Expensesthe amount thereof, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Company shall indemnify the Indemnitee as a result of for the actual or deemed receipt of any payments under this Agreement, including portion to which the creation of the Trust pursuant to Section 4 hereofIndemnitee is entitled. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5contrary, the Indemnitee shall not be entitled to indemnification pursuant to this Agreement if a final judgment of a court of competent jurisdiction adverse to the Indemnitee establishes that the Indemnitee’s acts were committed in bad faith, were the result of active and deliberate dishonesty or that the Indemnitee personally gained a financial profit to which the Indemnitee was not legally entitled. The Indemnitee shall provide prompt written notice to the Company of any Claim in connection with any Proceeding initiated by which the Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented may assert a right to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance")be Indemnified hereunder; provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf failure of the Indemnitee to repay provide such amount if it is ultimately determined that Indemnitee is notice shall not entitled affect the Indemnitee’s rights hereunder except to be indemnified by the Company; provided further, that extent the Company shall make such advances only to the extent permitted by lawhave been materially prejudiced as a direct result thereof.
(b) Notwithstanding the foregoing, (i) the The obligations of the Company under Section 2(aparagraph (a) of this Article shall be subject to the condition that the Reviewing Party shall not have authorized such indemnification in the specific case by having determined (in a written opinion, in any case in which that the special, independent counsel referred to in Section 3 hereof Indemnitee is involved) that Indemnitee would not be permitted to be indemnified under the applicable law, and provisions set forth in such paragraph (ii) the obligation of the a). The Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in use its best efforts to facilitate a court of competent jurisdiction to secure a prompt determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted with respect to be indemnified under applicable law shall not be binding and the Claim. In connection therewith, the Indemnitee shall not be required afforded the opportunity to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as make submissions to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by with respect to the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereofClaim. If there has been no determination by the Reviewing Party within the time period specified in paragraph (a) of this Article, or if the Reviewing Party determines that the Indemnitee substantively would is not be permitted to be indemnified in whole or in part under applicable lawhereunder, the Indemnitee shall have the right to commence litigation in any court in the States Northern District of California or Delaware Texas having subject matter jurisdiction thereof and in which venue is proper seeking an initial a determination by the court of the Indemnitee’s right to indemnification or challenging any such determination by the Reviewing Party or any aspect thereof, Party; and the Company hereby consents to service of process and to appear in any such proceeding, and agrees that a final determination in any such proceeding shall be conclusive and binding on it. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and the Indemnitee. All costs and expenses (including, without limitation, attorneys fees and disbursements) in connection with the Reviewing Party’s review and any litigation relating thereto shall be borne by the Company, unless it is determined in any such litigation with respect to litigation costs that the Indemnitee’s suit was frivolous. Pending a final determination hereunder, the Company, upon the written request of the Indemnitee, shall take all such action as may be necessary or appropriate (including, without limitation, the posting of any surety, appeal or other bonds) to stay or prevent any execution, enforcement or collection of any judgments, penalties, fines or other amounts for which the Indemnitee may be liable and for which the Indemnitee has requested indemnification hereunder or under the Company’s Articles of Incorporation, Bylaws or the applicable laws of the State of Texas.
Appears in 1 contract
Agreement to Indemnify. (a) In From and after the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable EventClosing, the Company shall and the Shareholder, jointly and severally, agree to protect, defend, indemnify Indemnitee and hold Nations harmless from and will pay to Nations the fullest extent permitted aggregate of any loss, liability, claim, action, damage, expense (including costs of investigation and defense and reasonable attorneys fees), penalty, or fine, whether or not involving a third-party claim (collectively, "Damages"), arising, directly or indirectly, from or in connection with:
(i) any breach of any representation or warranty made by lawthe Company, as soon as practicable and the Shareholder in this Agreement (but in any event no later than thirty (30) days after written demand is presented giving effect to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement's Disclosure Schedules) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director other certificate or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking document delivered by or on behalf of the Indemnitee Company or the Shareholder pursuant to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified this Agreement;
(ii) any breach by the Company; provided further, that Company or the Shareholder of any covenant or obligation of the Company shall make such advances only or Shareholder in this Agreement;
(iii) any claims (regardless of whether made before or after Closing) that arise from any facts or circumstances, acts or omissions occurring prior to the extent permitted by lawClosing Date or relate to the Excluded Assets and the Excluded Liabilities; and
(iv) any claims related to any obligation, liability, operations or the business of A-MOP.
(b) Notwithstanding Nations, agrees to protect, defend, indemnify and hold the foregoingCompany and the Shareholder harmless from and will pay to the Company and Shareholder the aggregate of any Damages arising, directly or indirectly, from or in connection with:
(i) any breach of any representation or warranty made by Nations in this Asset Purchase Agreement or any other certificate or document delivered by or on behalf of Nations pursuant to this Agreement;
(ii) any breach by Nations of any covenant or obligation of Nations in this Agreement; or
(iii) the obligations Assumed Liabilities, except for any liability or obligation relating to any default under any of the Company under Section 2(a) shall be Assumed Liabilities to the extent such default existed prior to the Closing (subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Threshold provided at Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed10.2). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Agreement to Indemnify. (ai) RSVP and RAP, jointly and severally (each, an "Indemnifying Party" and, collectively, the "Indemnifying Parties"), agree to indemnify and hold harmless Asset Manager and its affiliates, successors and assigns, and all of their respective officers, directors, partners, shareholders, employees (including "contract" employees), members, partners and managers ("Asset Manager Indemnitees"), against any and all Damages (as defined in the Amended LLC Agreement) suffered or incurred by any of them resulting from, arising out of, based on or relating to (i) any breach of any representation or warranty made by the Companies in this Agreement; or (ii) any failure to perform any covenant, agreement or undertaking on the part of the Companies contained in this Agreement; or (iii) any third party claims asserted against any Asset Manager Indemnitee which result from or are based upon Asset Manager's performance (or lack of performance) under this Agreement during the term of this Agreement, unless in the case of clauses (ii) (solely to the extent directly caused by Asset Manager) and (iii) related claims, the Damages are caused directly by an act or omission of Asset Manager constituting gross negligence, fraud or intentional misconduct of Asset Manager, in which event neither Asset Manager nor any other Asset Manager Indemnitee will be indemnified for such Damages under this Agreement. The right of indemnification pursuant to this Section 8(o) in connection with a third-party action shall include the right to be paid, in advance or within 15 business days of presentation of reasonable supporting documentation, to the Companies for the reasonable expenses incurred by an Asset Manager Indemnitee who was, is, or is threatened in writing to be made a named defendant or respondent in any third-party action, suit, arbitration, administrative hearing or other proceeding provided that such Asset Manager Indemnitee shall have given a written undertaking to reimburse the Companies in the event it is subsequently determined by a court of competent jurisdiction from which no further appeal may be taken or as to which the time for appeal has lapsed, that he, she or it is not entitled to such indemnification.
(ii) In order for an Asset Manager Indemnitee to be entitled to indemnification pursuant to this Agreement, the Asset Manager Indemnitee shall notify the Indemnifying Parties in writing of any claim to which it is entitled to indemnification within thirty (30) days of the date such party receives written notice or otherwise becomes aware of the claim, describing in reasonable detail such claim; provided, however, that the failure of an Asset Manager Indemnitee to so notify the Indemnifying Parties of the claim shall not relieve the Indemnifying Parties of their obligations under this Agreement except to the extent the Indemnifying Parties shall have been actually prejudiced as a result of such failure; and provided further, that the Indemnifying Parties shall not be liable for any expenses incurred during the period in which the Asset Manager Indemnitee failed to give such notice. The Asset Manager Indemnitee shall deliver to the Indemnifying Parties copies of all notices and documents (including court papers) received by the Asset Manager Indemnitee relating the claim along with the notice referred to above. If the Indemnifying Parties do not object in writing to the availability of the indemnity under this Agreement within thirty (30) days after receiving such notice, then the claim set forth in the notice by such party shall be considered a valid claim under this Agreement (a "Valid Claim"), and such Valid Claim shall be payable in accordance with this Agreement. In the event Indemnitee the Indemnifying Party objects to the availability of the indemnity under this Agreement, then the Indemnified Party shall be entitled to be paid for the reasonable expenses incurred by the Indemnified Party in defense of such claim in the manner and to the extent provided in the immediately following sentence. The right of indemnification under this Agreement shall include the right to be paid by the Indemnifying Party, in advance or within 15 Business Days (as defined in the Amended LLC Agreement) of presentation of reasonable supporting documentation, for the reasonable expenses incurred by the Indemnified Party, who was, is or becomes a party to or witness or other participant inis, or is threatened to be made a party to named defendant or witness respondent in an action, suit, arbitration, administrative hearing or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as proceeding provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Indemnified Party shall not have determined (in given a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees undertaking to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings Indemnifying Party in the event it is subsequently determined by a court of competent jurisdiction from which no further appeal may be taken or as to secure which the time for appeal has lapsed, that he, she or it is not entitled to such indemnification.
(iii) If any Valid Claim arises out of or involves a determination that Indemnitee should be indemnified under applicable law, any determination claim or demand made by any person that is not a party to this Agreement or an Asset Manager Indemnitee seeking indemnification (a "Third Party Claim"), then the Reviewing Indemnifying Parties shall be entitled to participate in, and direct and/or assume the defense of such action on behalf of the Asset Manager Indemnitee, with counsel selected by the Indemnifying Parties; provided, that such counsel is not reasonably objected to by the Asset Manager Indemnitee. Should the Indemnifying Parties so elect to assume the defense of a Third Party that Indemnitee would not be permitted to be indemnified under applicable law Claim, the Indemnifying Parties shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, liable to the extent permitted Asset Manager Indemnitee for legal expenses subsequently incurred by lawthe Asset Manager Indemnitee in connection with the defense thereof. If there has not been a Change in Controlany of the Indemnifying Parties assumes such defense, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Asset Manager Indemnitee shall have the right to commence litigation in any court participate in the States of California or Delaware having subject matter jurisdiction defense thereof and in which venue is proper seeking an initial determination to employ counsel, at its own expense, separate from the counsel employed by the court or challenging any Indemnifying Parties, it being understood that the Indemnifying Parties shall control such determination defense. Notwithstanding the foregoing, the Indemnifying Parties shall be liable for the fees and expenses of counsel employed by the Reviewing Asset Manager Indemnitee for any period during which any of the Indemnifying Parties have failed to assume the defense thereof (other than during the period prior to the time the Asset Manager Indemnitee shall have given notice of the Third Party Claim as provided above) or if a conflict of interest would exist if one counsel represented both the Indemnifying Parties and the Asset Manager Indemnitee, in connection with such Third Party Claim, then the Asset Manager Indemnitee may employ separate counsel at the expense of the Indemnifying Parties provided that such counsel is not reasonably objected to by the Indemnifying Parties; provided, however, it being understood that the Indemnifying Party shall not object to the use of Paul, Hastings, Janofsky & Walker LLP, unless Paul, Hastings, Janofsky & Walker LLP xxx x xxnflxxx-xx-interest.
(xx) Xf txx Xxxemnifying Parties so elect to assume the defense of any aspect Third Party Claim, each Asset Manager Indemnitee shall cooperate with the Indemnifying Parties in the defense or prosecution thereof. Such cooperation shall include the retention and (upon any Indemnifying Parties request) the provision to any of the Indemnifying Parties of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Company hereby consents Indemnifying Parties shall have assumed the defense of a Third Party Claim, no Asset Manager Indemnitee shall admit any liability or make any other admission or stipulation with respect to, or settle, compromise or discharge, such Third Party Claim without each Indemnifying Party's prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned). If the Indemnifying Parties shall have assumed the defense of a Third Party Claim, each Asset Manager Indemnitee shall agree to service any settlement, compromise or discharge of process a Third Party Claim which the Indemnifying Parties may recommend and to appear which by its terms fully releases the Asset Manager Indemnitee (without cost or obligation) in any connection with such proceeding. Any determination by the Reviewing Third Party otherwise shall be conclusive and binding on the Company and IndemniteeClaim.
Appears in 1 contract
Agreement to Indemnify. (a) In Except as provided in subsection 1(b) and Section 10 below, the event Corporation shall indemnify the Indemnitee wasagainst any and all loss, judgments, fines, bonds, and expenses (including attorney's fees) and amounts paid in settlement actually and reasonably incurred by the Indemnitee in connection with any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and whether formal or informal ("Proceeding"), including any appeal therefrom, in which the Indemnitee was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to because he or witness she is or was an officer and/or a director of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, agent, member or trustee of another corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other participant inenterprise, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company and such indemnification shall indemnify Indemnitee be made to the fullest extent permitted by law, as soon as practicable it may be amended to increase, but in any event no later than thirty not reduce the measure of indemnification permitted.
(30b) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary set forth in subsection l(a) above and except as provided in Section 53 below, Indemnitee unless hereafter permitted by law, indemnification or advancement of expenses shall not be entitled made to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee if a judgment or other final adjudication establishes that his or her actions or omissions to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only act were material to the extent permitted by law.cause of action so adjudicated and constitute:
(b) Notwithstanding the foregoing, (i) the obligations A violation of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable criminal law, and unless the director or officer had reasonable cause to believe that his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful;
(ii) A transaction from which the obligation director or officer derived an improper personal benefit;
(iii) In the case of a director, a circumstance under which the liability provisions of Section 607.0834 of the Company Florida Business Corporation Act are applicable; or
(iv) Willful misconduct or a conscious disregard for the best interests of the corporation in a proceeding by or in the right of the corporation to make an Expense Advance pursuant to Section 2(aprocure a judgment in its favor or in a proceeding by or in the right of a shareholder. For purposes of this subsection 1(b), the determination of whether such a judgment or other final adjudication has been rendered shall be made after exhaustion of any and all appeals or other review from the Proceeding in which it was rendered. Adjudications within the meaning of this subsection 1(b) shall be subject to the condition that, if, when include arbitration awards and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal decisions rendered in formal administrative proceedings in before a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable state or federal administrative law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteejudge.
Appears in 1 contract
Agreement to Indemnify. (a) In Subject to SECTION 2(C), in the event Indemnitee was, is is, or becomes a party to to, or witness or other participant in, or is threatened to be made a party to to, or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall will indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties penalties, and amounts paid in settlement (including all interest, assessments assessments, and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties penalties, or amounts paid in settlement) of such Proceeding and any federal, state, local local, or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement. Without limiting the foregoing, including subject to SECTION 2(C), the creation of Company will indemnify and hold harmless Indemnitee to the Trust pursuant to Section 4 hereoffullest extent authorized or permitted under the Nevada Corporation Law in effect at any time. Notwithstanding anything in this Agreement to the contrary contrary, and except as provided in Section SECTION 5, prior to a Change in Control Indemnitee shall will not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, will advance (within ten (10) business days of such request, ) any and all Expenses to Indemnitee (an as "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(aSECTION 2(A) shall will be subject to the condition that the Reviewing Party shall has not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section SECTION 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(aSECTION 2(A) shall will be subject to the condition that, if, when when, and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall will be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; providedPROVIDED, howeverHOWEVER, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall will not be binding and Indemnitee shall will not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed)) is made with respect to such matter. Indemnitee's obligation to reimburse the Company for Expense Advances shall will be unsecured and no interest shall will be charged thereon, to the extent permitted by law. If there has not been a Change in Control, Control the Reviewing Party shall will be selected by the Board of Directors, and if there has been such a Change in Control, Control (other than a Change in Control which that has been approved by a majority of the Company's Board of Directors of the Company who were directors immediately prior to such Change in Control), the Reviewing Party shall will be the special, independent counsel referred to in Section 3 hereofSECTION 3. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall will have the right to commence litigation in any court in the States State of California or Delaware Nevada having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereofof such determination, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party will otherwise shall be conclusive and binding on the Company and Indemnitee.
(c) Indemnitee will not be entitled to any payment by the Company (i) in connection with any fine or similar governmental imposition that the Company is prohibited by applicable law from paying and that results from a final, nonappealable order; (ii) the extent it is based upon or attributable to Indemnitee in fact gaining a personal profit to which Indemnitee was not legally entitled, including, without limitation, profits made from the purchase and sale of equity securities of the Company that are recoverable by the Company pursuant to Section 16(b) of the Exchange Act, and profits arising from transactions in securities that were effected in violation of Section 10(b) or Section 14(a) of the Exchange Act, including Rule 10b-5 and rule 14c-3 under the Exchange Act (iii) on account of remuneration paid to the Indemnitee in violation of applicable law; or (iv) if it is finally adjudged by a court of competent jurisdiction that such payment is unlawful or that the Indemnitee acted in a manner that was knowingly fraudulent, deliberately dishonest, or than constituted willful misconduct.
Appears in 1 contract
Agreement to Indemnify. From and after the Closing Date, subject to the provisions of this Article VIII, each Selling Interest Holder shall indemnify the Buyer Indemnitees as follows:
(a) In Each Selling Interest Holder shall, severally (but not jointly), indemnify the event Indemnitee wasBuyer Indemnitees from, is against, for and in respect of Losses paid, suffered or becomes a party to incurred by such Buyer Indemnitee(s), and resulting from, based upon, arising out of or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with (i) a breach of any representation or in respect warranty of such ExpensesSelling Interest Holder (and not any other Selling Interest Holder) contained in Article III, judgments, fines, penalties and (ii) a breach of any covenant or amounts paid in settlement) agreement of such Proceeding Selling Interest Holder (and not any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of other Selling Interest Holder) contained in any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by lawTransaction Document.
(b) Notwithstanding Each Selling Interest Holder shall jointly and severally indemnify the foregoingBuyer Indemnitees from, against, for and in respect of Losses paid, suffered or incurred by such Buyer Indemnitee(s), and resulting from, based upon, arising out of or in connection with (i) the obligations a breach of any representation or warranty of the Company under Section 2(acontained in Article IV; (ii) shall be subject a breach of any covenant or agreement of the Member Representative contained in any Transaction Document to which the Member Representative is a party as of and after the Closing; (iii) any other claims or Proceedings made or brought against the Buyer, the Company or any other Buyer Indemnitee by a Selling Interest Holder or a UAR Holder as a result of this Agreement, any other Transaction Document (except for any Management Retention Agreements, Restricted Stock Unit Award Agreements or Executive Agreements entered into with the Buyer) or the Transaction (other than claims relating to a breach by the Buyer of its obligations hereunder); (iv) any indemnification obligation to reimburse or advance payment for expenses to the condition Indemnified DOM’s for actions taken by them prior to the Closing Date (to the extent not covered by insurance); (v) Transaction Fees (to the extent not reflected in the calculation of the Adjusted Closing Consideration); (vi) Indebtedness of the Company that existed prior to or at the Reviewing Party shall Closing Date (to the extent not have determined (reflected in a written opinion, in the calculation of the Adjusted Closing Consideration) and any case in which other components of the special, independent counsel referred to in Section 3 hereof is involved) Closing Adjustment that Indemnitee would not be permitted to be indemnified under applicable laware inaccurate or inappropriately calculated as of the Closing Date, and (iivii) those matters described in Section 9.4 with respect to the obligation allocation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject Purchase Price by the Member Representative to the condition that, if, when Selling Interest Holder and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeUAR Interest Holders.
Appears in 1 contract
Agreement to Indemnify. (a) In Buyer and its Affiliates (collectively, the event "BUYER INDEMNITEES") shall each be indemnified and held harmless to the extent set forth in this Article IX by the Shareholder in respect of any and all Damages incurred by any Buyer Indemnitee wasas a result of:
(1) any inaccuracy or misrepresentation in or breach of any representation, is warranty, covenant or becomes agreement made in this Agreement by the Company or the Shareholder at any time;
(2) any Environmental Liability (regardless of whether such Environmental Liability constitutes a party to breach of any representation or witness warranty contained in this Agreement): (A) of the Company or other participant inthe Shareholder, or is threatened to be made a party to or witness or other participant inin its capacity as such, a Proceeding by reason of (whether presently in existence or arising in part out ofhereafter; or (B) an Indemnifiable Eventrelating to the Business, the Company shall indemnify Indemnitee or the Real Property, which arises from acts, events, conditions or circumstances existing or occurring on or before the Closing Date; and
(3) all Taxes for which the Company is or could be held liable with respect to (i) any taxable period ending on or prior to the fullest extent permitted by lawClosing Date, as soon as practicable but and (ii) any taxable period that includes and ends after the Closing Date (an "OVERLAP PERIOD") in any event no later than thirty (30) days after written demand is presented an amount equal to the Companyliability for Taxes that would have resulted had the Overlap Period ended at the close of business on the Closing Date (utilizing, against if applicable, the actual tax rate imposed on a particular category of income by the applicable taxing jurisdiction), in each case except to the extent such Taxes are included and specifically identified as a liability for such Taxes in the Final Equity Calculation; PROVIDED, that Buyer shall be entitled to recover such Damages from the escrow fund created pursuant to the Escrow Agreement, subject to the terms and conditions thereof.
(b) The Shareholder and their respective Affiliates (collectively, the "SHAREHOLDER INDEMNITEES") shall each be indemnified and held harmless to the extent set forth in this Article IX by Buyer in respect of any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and Damages incurred by any federal, state, local or foreign taxes imposed on the Shareholder Indemnitee as a result of the actual any inaccuracy or deemed receipt misrepresentation in or breach of any payments under representation, warranty, covenant or agreement made by the Buyer in this Agreement.
(c) Except to the extent of confidentiality provisions in this Agreement, including the creation no Person shall have any claim or cause of the Trust pursuant action as a result of any inaccuracy or misrepresentation in or breach of or failure to Section 4 hereof. Notwithstanding anything perform any representation, warranty, covenant, agreement or obligation of any Indemnifying Party referred to in this Agreement to the contrary and except as provided in Section 59.01 against any Affiliate, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company member, stockholder, director, officer, employee, consultant or any director or officer of the Company unless the Company has joined in or consented to the initiation agent of such ProceedingIndemnifying Party. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses Nothing set forth in this Article IX shall be advanced only upon delivery deemed to prohibit or limit any Buyer Indemnitee's or Shareholder Indemnitee's right at any time before, on or after the Company Closing Date, to seek injunctive or other equitable relief for the failure of an undertaking by any Indemnifying Party to perform any covenant or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by lawagreement contained herein.
(bd) Notwithstanding the foregoing, (i) the obligations The maximum aggregate liability of the Company Shareholder to indemnify the Buyer Indemnitees under this Article IX shall not exceed Six Million Dollars ($6,000,000).
(e) The Shareholder shall have no obligation to pay any amount of indemnity under Section 2(a9.01(a) unless and until the aggregate amount of Damages incurred in respect of all claims for which indemnity would be payable by the Shareholder under Section 9.01(a) but for this Section 9.01(e) exceeds One Hundred Thousand Dollars ($100,000) (the "DEDUCTIBLE"), whereupon the Shareholder shall be liable under Section 9.01(a) (subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation other limitations of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Companythis Article IX) for all amounts of such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by Damages over the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeDeductible.
Appears in 1 contract
Agreement to Indemnify. Quevedo agrees to indemnify and hold AVS harmless from and against xxx xxxxxxate of all expenses, losses, costs, deficiencies, liabilities and damages (aincluding, without limitation, related reasonable counsel and paralegal fees and expenses) In incurred or suffered by AVS arising out of or resulting from (i) any breach of a representation or warranty made by the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising Shareholders in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation (ii) any breach of the Trust pursuant to Section 4 hereof. Notwithstanding anything covenants or agreements made by any of the Companies or the Shareholders in this Agreement to Agreement, (iii) any inaccuracy in any certificate delivered by either of the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification Companies or the Shareholders pursuant to this Agreement in connection with Agreement, (iv) any Proceeding initiated by Indemnitee against the Company tax liability relating to any period occurring on or any director or officer of the Company unless the Company has joined in or consented prior to the initiation Effective Time, (v) any regulating and licensing obligations arising on or prior to the Effective Time, or (vi) any claims of such Proceeding. If so requested by Indemniteeany third parties arising from or relating to any facts, circumstances or events occurring on or prior to the Company shall advanceEffective Time (collectively, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense AdvanceIndemnifiable Damages"); provided, however, that such Expenses shall be advanced only upon delivery to . Without limiting the Company generality of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) with respect to the obligations measurement of the Company under Section 2(a) shall be Indemnifiable Damages, subject to the condition that the Reviewing Party shall not have determined (in a written opinionprovisions set forth herein, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee AVS shall have the right to commence litigation in any court be put in the States same after tax consolidated financial position as it would have been in had each of California or Delaware having the representations and warranties of the Shareholders hereunder been true and correct and had the covenants and agreements of each of the Companies and the Shareholders hereunder been performed in full. Notwithstanding the foregoing, no claim for Indemnifiable Damages (except for claims arising under clauses (ii) and (iv) of this Section and claims pursuant to the Stock Consideration Adjustment which shall not be subject matter jurisdiction thereof and to the Indemnification Threshold (defined below)) shall be asserted by AVS until the aggregate of all such Indemnifiable Damages exceeds $50,000 (the "Indemnification Threshold"), in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise case AVS shall be conclusive and binding on entitled to collect all Indemnifiable Damages from the Company and Indemniteefirst dollar of Indemnifiable Damages. Notwithstanding anything to the contrary contained herein, D. Quevedo shall have no liability for Indemnifiable Damages.
Appears in 1 contract
Sources: Merger Agreement (Aviation Sales Co)
Agreement to Indemnify. The Corporation hereby agrees to ---------------------- indemnify, keep indemnified and hold harmless, Indemnitee (awhich shall include any legal representatives of such person) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted authorized by lawthe Delaware Law, including, without limitation, Section 145(f) thereof, and other applicable law as soon as practicable but in any event no later than thirty (30) days after written demand is presented effect from time to the Companytime, from and against any expenses (including expenses of investigation and all Expensespreparation and reasonable fees and disbursements of counsel, accountants and other experts), judgments, fines, penalties liability, losses and amounts paid in settlement (including all interestsettlement, assessments actually and other charges paid or payable reasonably incurred by Indemnitee in connection with any threatened, pending or in respect completed action, suit, claim or proceeding (hereinafter, a "proceeding"), whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise, and whether or not the cause of such Expenses, judgments, fines, penalties proceeding occurred before or amounts paid in settlement) after the date of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and foregoing, but except as provided in Section 58 hereof, the Corporation shall indemnify the Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding a proceeding (or part thereof) initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay only if such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
proceeding (bor part thereof) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected was authorized by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority Directors of the Company's Board Corporation. For purposes of Directors who were directors immediately prior to such Change in Controlthis Agreement, the Reviewing Party shall be terms "corporation," "other enterprise," "fines" and "serving at the special, independent counsel referred to in Section 3 hereof. If there has been no determination by request of the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee Corporation" shall have the right to commence litigation meanings provided in any court in Section 145 of the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeLaw.
Appears in 1 contract
Agreement to Indemnify. Subject always to the provisions of this Agreement, the Articles and the Companies Law, the Company hereby agrees to hold harmless and indemnify the Indemnitee against all Expenses and Liabilities properly incurred or paid by the Indemnitee by reason of the Indemnitee’s Corporate Status to the fullest extent permitted by Article 77 of the Companies Law, as amended, and any other applicable law. In furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a) In Subject to the event exceptions contained in Section 4, Section 6 and Section 8 below, if the Indemnitee was, was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness participant in any Proceeding (other than an action by or other participant in, a Proceeding in the right of the Company) by reason of (or arising in part out of) an Indemnifiable Eventthe Indemnitee’s Corporate Status, the Indemnitee shall be indemnified and held harmless by the Company shall indemnify against all Expenses and Liabilities properly incurred or paid by the Indemnitee to or on the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable Indemnitee’s behalf in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding (referred to herein as “Indemnifiable Expenses” and any federal“Indemnifiable Liabilities,” respectively, state, local or foreign taxes imposed on the Indemnitee and collectively as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"“Indemnifiable Amounts”); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject Subject to the condition that exceptions contained in Section 4, Section 6 and Section 8 below, if the Reviewing Party shall not have determined (in Indemnitee was or is, or is threatened to be made, a written opinion, party to or participant in any case Proceeding by or in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation right of the Company to make an Expense Advance pursuant to Section 2(a) procure a judgment in its favor by reason of the Indemnitee’s Corporate Status, the Indemnitee shall be indemnified and held harmless by the Company against all Indemnifiable Expenses.
(c) In addition to, and without regard to any limitations on, the indemnification provided for in Sections 3(a) and (b) but subject to the condition thatexceptions contained in Section 4, Section 6 and Section 8 below, the Indemnitee shall be indemnified and held harmless by the Company against all Indemnifiable Amounts if, when and to by reason of the extent that Indemnitee’s Corporate Status, the Reviewing Party determines that Indemnitee would not be permitted is, or is threatened to be so indemnified under applicable lawmade, a party to or participant in any Proceeding (including a Proceeding by or in the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse right of the Company) for all such amounts theretofore paid; provided, however, provided that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law no circumstances shall not be binding and Indemnitee shall not be required to reimburse the Company for be obligated to make any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, payment to the extent Indemnitee that it is advised by its legal advisers would be unlawful under the laws of Jersey or is otherwise not permitted by law. If there has not been a Change in Control, pursuant to the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeArticles.
Appears in 1 contract
Agreement to Indemnify. (a) In 7.2.1 Subject to the event Indemnitee wasterms, is or becomes a party to or witness or other participant inconditions and limitations of this Article 7, or is threatened the Parent Indemnified Parties shall be entitled to be made indemnified, from and after the Effective Time, solely from the Escrow Fund (except as set forth in Section 7.3.5), against, and shall be compensated, reimbursed and paid for, any Damages which are suffered or incurred by a party to Parent Indemnified Party from any of the following: (i) any breach of any representation or witness or other participant in, a Proceeding by reason warranty of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee in Article 3 hereof, in the Company Compliance Certificate or in the Closing Certificate (without giving effect, solely for the purposes of computing the amount of any Damages, to the fullest extent permitted by lawany materiality qualification contained or incorporated in such representation or warranty), as soon as practicable but in (ii) any event no later than thirty (30) days after written demand is presented to breach of any covenant or agreement of the Company, against prior to the Effective Time, in this Agreement, (iii) the amount of any Transaction Costs not deducted from the Total Merger Consideration, (iv) any assertion or recovery by any holder of Company Capital Stock of the fair value, interest and all Expensesexpenses or other amounts pursuant to dissenters’ rights exercised or purportedly exercised pursuant to California Law (it being understood that any such Damages will not include the pro rata share of the Total Merger Consideration such asserting or recovering stockholder would have received pursuant to this Agreement), judgments(v) the amount of any Company Debt on the Closing Date in excess of the amount of Company Debt on the date of this Agreement, finesto the extent such amount is not deducted from the Total Merger Consideration and is determined by Parent within 60 days of the Effective Time, (vi) any Liability, including any penalties and amounts paid in settlement (including all interestremediation costs and expenses, assessments and other charges paid related to, arising out of or payable incurred in connection with the Company’s failure to ensure that the Company Options and Company Common Stock set forth on Annex 3.13.8 to the Company Disclosure Schedule at all times satisfied all applicable requirements of Section 409A of the Code and related guidance, (vii) the loss of a tax deduction (such loss computed as the total amount of Compensatory Arrangements that constitute “parachute payments” under Section 280G of the Code, multiplied by Parent’s combined federal and state income tax rate) with respect to compensation payable to or in respect for the benefit of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee Xxxxx Xxxxxxxx as a result of the actual application of Section 280G of the Code and related guidance in connection with the transactions contemplated by this Agreement and (viii) any Actions, demands or deemed receipt assessments incidental to any of the matters set forth in clauses (i) through (vii) above (including any payments proceeding commenced by any Parent Indemnified Party for the purpose of enforcing its rights under this Article 7). For purposes of this Agreement, the term “Parent Indemnified Parties” shall mean Parent, the Surviving Corporation, and their affiliates and each of their respective directors, officers, employees, and agents, and the term “Damages” shall mean any loss, injury, claim, demand, settlement, judgment, award, fine, penalty, Liability, damage, Tax, Encumbrance, charge, cost or expense of any nature (including costs and reasonable attorneys’ fees and disbursements and other litigation expenses), whether or not involving the creation claim of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary another Person, but excluding any special, indirect, consequential, exemplary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection punitive damages and also excluding any damages associated with any Proceeding initiated by Indemnitee against the Company lost profits or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance")lost opportunities; provided, however, that such Expenses shall be advanced only Damages may include any special, indirect, consequential, exemplary and punitive damages awarded to any third party in any Third-Party Claim or agreed upon delivery to the Company in settlement of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Companyany Third-Party Claim; provided provided, further, that for purposes of computing the amount of any Damages incurred by a Parent Indemnified Party there shall be deducted an amount equal to the amount of any insurance proceeds actually received or receivable by a Parent Indemnified Party in connection with such Damages or any of the circumstances giving rise thereto arising under an insurance policy purchased by the Company shall make such advances only prior to the extent permitted by lawEffective Time.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Sources: Merger Agreement (Applera Corp)
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable practicable, but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid actually and reasonably incurred by him or payable her in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, Agreement (including the creation of the Trust pursuant Trust) if he or she acted in good faith and in a manner which he or she reasonably believed to Section 4 hereofbe in or not opposed to the best interests of the Company, and with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful; provided, however, that the Company shall not indemnify Indemnitee for any Expenses incurred in a Proceeding instituted by an appropriate bank regulatory agency if that Proceeding results in a final order assessing civil monetary penalties or requiring affirmative action by Indemnitee in the form of payments to the Company. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, prior to a Change in Control, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, advance (within ten (10) business days of such request, ) any and all Expenses to Indemnitee (an "“Expense Advance"”); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be so indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a2(b) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Notwithstanding any other provision in this Agreement, Expenses incurred in defending a Proceeding that is an administrative or civil action initiated by a federal bank regulatory agency shall be advanced only if Indemnitee agrees in writing to reimburse the Company for that portion of the advanced Expenses as to which it is ultimately determined that Indemnitee was not entitled to indemnification and the Reviewing Party has first made a determination in writing that Indemnitee acted in good faith and in a manner he or she believed to be in the best interests of the Company and that the advancing of such Expenses will not adversely affect the safety and soundness of the Company. Expenses shall be advanced, however, only upon delivery to the Company of a written binding agreement by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company. Indemnitee's ’s obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States State of California or Delaware Colorado having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Agreement to Indemnify. Following the Closing and subject to the limitations set forth herein,
(a) In the event Indemnitee wasSole Stockholder and the Principals shall severally indemnify and agree to defend and hold harmless Parent and the Surviving Entity (and their respective Affiliates, officers, directors, employees, representatives and agents) (“Parent Indemnified Persons” and, singularly, a “Parent Indemnified Person”) against and in respect of any and all Damages, by reason of or otherwise arising out of:
(i) Parent Indemnified Taxes;
(ii) any amount Parent is entitled to claim as Damages calculated in accordance with Section 2.07(c);
(iii) any claim by an employee or becomes a party former employee of the Company, or any other person or entity, based upon (A) such employee’s or former employee’s employment with the Company prior to the Effective Time, (B) the termination of employment of current or witness former employees of the Company pursuant to this Agreement or otherwise prior to the Effective Time, or (C) any severance arrangements or payments or any benefit, salary, bonus, commission or other participant in, compensation payments made or is threatened required to be made a party in connection with such terminations prior to or witness or other participant inthe Effective Time;
(iv) any claim by the Sole Stockholder, a Proceeding by reason Principal or former stockholder of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, or any other person or entity, against the Company or any and all Expensesof its Affiliates, judgmentsofficers, finesdirectors, penalties and amounts paid in settlement employees or agents, based upon any rights of a stockholder (other than the right of Principals to receive Merger Consideration pursuant to this Agreement), including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on appraisal rights under the Indemnitee as a result applicable provisions of the actual MBCA, any option, preemptive rights or deemed receipt rights to notice or to vote;
(v) a breach of any payments under this Agreementa representation, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything warranty or covenant contained in this Agreement to made by the contrary and except as provided Company; or
(vi) a breach of a representation, warranty or covenant contained in Section 5this Agreement made by such Principal. provided, Indemnitee shall that, the Parent Indemnified Persons will not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company Section 11.01(a) unless the Company has joined aggregate amount of all Damages for which indemnification is sought by the Parent Indemnified Persons exceeds $125,000 (the “Parent Indemnification Basket”), in or consented which case the Parent Indemnified Persons will be entitled to indemnification for the initiation full amount of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance")Damages; provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company Parent Indemnification Basket shall make such advances only not apply to any claim for indemnification based on items (i), (ii), (iii), (iv) and (vi) above or any claim for indemnification under item (v) above to the extent permitted by lawsuch claim relates to a breach of representation, warranty or covenant under Section 4.06, Section 4.08, Section 4.09, Section 4.11 or Section 4.17.
(b) Notwithstanding Parent shall indemnify and agrees to defend and hold harmless the foregoingPrincipals (and their respective affiliates, representatives and agents) against and in respect of any and all Damages by reason of or otherwise arising out of:
(i) the obligations a breach by Parent or Merger Sub of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (any representation, warranty or covenant contained in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and this Agreement; or
(ii) the obligation any claim of the Company false or misleading information relating to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition Parent included in Parent SEC Filings provided, that, if, when and to the extent that the Reviewing Party determines that Indemnitee would Principals will not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees indemnification pursuant to reimburse this Section 11.01(b) unless the Company) aggregate amount of all Damages for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made which indemnification is sought by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereonPrincipals exceeds $125,000, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by case the court or challenging any Principals will be entitled to indemnification for the full amount of such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeDamages.
Appears in 1 contract
Sources: Merger Agreement (Perficient Inc)
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, law as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid or incurred in connection with settlement (including all interest, interest assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding Claim and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, Agreement (including the creation of the Trust pursuant trust referred to in Section 4 hereof). If so requested by Indemnitee, the Company shall pay in advance of the final disposition of any Claim any and all Expenses incurred or paid by Indemnitee (an "Expense Advance"). An Expense Advance shall be made by the Company within five business days of any such request by Indemnitee, Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5Sections 5 and 15(c), prior to a Change in Control Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding Claim initiated by Indemnitee against the Company or any director or officer of the Company unless such proceeding (or part thereof) was authorized by the Company has joined in or consented to the initiation Board of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf Directors of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, and subject to the provisions of Section 6 hereof (i) the obligations of the Company under Section 2(a) for indemnification shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel Independent Legal Counsel referred to in Section 3 hereof is involved) that Indemnitee would not be is permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, ; when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable lawlaw for the amount advanced by the Company, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, Control (other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, ) the Reviewing Party shall be the special, independent counsel Independent Legal Counsel referred to in Section 3 hereof. hereof If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation commence, in any accordance with Section 15 hereof, an action in a court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper an arbitration proceeding seeking an initial determination by the court or arbitration panel or challenging any such determination by the Reviewing Party or any aspect thereof, ; or the legal or factual bases therefor and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Sources: Indemnification Agreement (Napro Biotherapeutics Inc)
Agreement to Indemnify. (a) Seller (the “Seller Indemnitor”) shall indemnify, defend and hold harmless Buyer and its affiliates, and their respective officers, directors, employees, representatives and agents (collectively, the “Buyer Indemnitees”) from, against and in respect of any and all Damages incurred by any Buyer Indemnitee arising out of or as a result of: (i) any inaccuracy or misrepresentation in or breach of any representation or warranty made by Seller in any Transaction Agreement or any Exhibit or Schedule thereto; (ii) any breach of any covenant or agreement made by Seller in any Transaction Agreement; (iii) any Excluded Liability; and (iv) all fees and expenses incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnification.
(b) Buyer (the “Buyer Indemnitor”) shall indemnify, defend and hold harmless Seller and its affiliates, and their respective officers, directors, employees, representatives and agents (collectively, the “Seller Indemnitees”) from, against and in respect of any and all Damages incurred by any Seller Indemnitee arising out of or as a result of (i) any inaccuracy or misrepresentation in or breach of any representation or warranty made by Buyer in any Transaction Agreement or any Exhibit or Schedule thereto; (ii) any breach of any covenant or agreement made by either Buyer in any Transaction Agreement; and (iii) all fees and expenses incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnification.
(c) In the event that a Buyer Indemnitee wasor Seller Indemnitee (each an “Indemnitee”) notifies the Seller Indemnitors or Buyer Indemnitor (each an “Indemnitor”) of any claim for which indemnification is available pursuant to Section 9.02(a) or Section 9.02(b), is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Eventas the case may be, the Company shall indemnify Indemnitee to the fullest extent permitted by lawIndemnitor shall, as soon as practicable but in any event no later than within thirty (30) days after written demand is presented the date of such notice, pay to the CompanyIndemnitee the amount of Damages payable pursuant to Section 9.02(a) or Section 9.02(b), against as applicable, and shall thereafter pay any other damages payable pursuant to Section 9.02(a) or Section 9.02(b), as applicable, and all Expensesarising out of the same matter on demand unless the Indemnitor disputes in writing its liability for, judgmentsor the amount of, finesany such Damages within such 30-day period, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or which case such payment shall be made as provided above in respect of such Expenses, judgments, fines, penalties any matters or amounts paid in settlement) of such Proceeding not so disputed and any federal, state, local or foreign taxes imposed on the Indemnitee as a result Damages in respect of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If matters so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses disputed shall be advanced only upon delivery to paid within five (5) Business Days after any determination (by agreement of Buyer and the Company of an undertaking Seller or by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction in a final, non-appealable decision) that the Indemnitor is liable therefor pursuant to secure Section 9.02(a) or Section 9.02(b), as applicable. For avoidance of doubt, an Indemnitor’s dispute of liability shall not relieve it of any obligation that arises hereunder.
(d) Notwithstanding Section 9.02(c), if a determination that Buyer Indemnitee should has a claim for which indemnification is available pursuant to Section 9.02(a), unless Seller, in its sole discretion, chooses to satisfy such claim in cash pursuant to Section 9.02(c), such indemnification claim may only be indemnified under applicable law, any determination made satisfied by the Reviewing Party that delivery of the Claim Shares from the Escrow Stock and, if such claim is a Special Claim, the Supplemental Escrow Stock (if necessary to satisfy such claim in full), and claims so satisfied shall be administered in accordance with the procedures set forth in Sections 4 and 5 of the Escrow Agreement.
(e) Promptly after receipt by an Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and of notice of the assertion of a third-party claim against it, such Indemnitee shall give notice to the Indemnitor of the assertion of such third-party claim, provided that the failure to notify the Indemnitor will not be required relieve the Indemnitor of any liability that it may have to reimburse the Company any Indemnitee, except for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured fees and no interest shall be charged thereon, costs incurred before notification and to the extent permitted by law. If there has not been a Change in Control, thereafter that the Reviewing Party shall be selected Indemnitor is materially prejudiced by the Board of Directors, and if there has been Indemnitee failure to give such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteenotice.
Appears in 1 contract
Agreement to Indemnify. (a) General Agreement Regarding Indemnification. In the event Indemnitee was, is or becomes a party to or witness or other participant inis, or is threatened to be made a party to or witness or other participant in, is otherwise involved in a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee from and against Indemnifiable Costs, to the fullest extent permitted by applicable law, as soon as practicable but the same exists or may hereafter be amended; provided, however, that the Company’s commitment set forth in any event no later than thirty (30) days after written demand is presented this Section to indemnify Indemnitee shall be subject to the Company, against any limitations and all Expenses, judgments, fines, penalties and amounts paid procedural requirements set forth in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation .
(b) Partial Indemnification. If Indemnitee is entitled under any provision of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company for some or any director or officer a portion of Indemnifiable Costs, but not, however, for the total amount thereof, the Company unless shall nevertheless indemnify Indemnitee for the Company has joined in or consented portion thereof to the initiation of such Proceedingwhich Indemnitee is entitled.
(c) Advancement Expenses. If so requested by Indemnitee, the Company shall advanceadvance to Indemnitee, within ten (10) business days of such requestto the fullest extent not prohibited by applicable law, as the same exists or may hereafter be amended or interpreted, any and all Expenses to incurred by Indemnitee (an "“Expense Advance")” or an “Advance”) in defending any Proceeding in advance of its final disposition within 30 calendar days after the receipt by the Company of a request from Indemnitee for an Advance, whether prior to or after final disposition of any Proceeding; provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only not advance any expenses to Indemnitee unless and until it shall have received a request and undertaking substantially in the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make form attached hereto as Exhibit A. Any request for an Expense Advance pursuant to Section 2(a) shall be subject to accompanied by an itemization, in reasonable detail, of the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) Expenses for all such amounts theretofore paidwhich advancement is sought; provided, however, that if Indemnitee need not submit to the Company any information that counsel for Indemnitee deems is privileged and exempt from compulsory disclosure in any proceeding. Subject to applicable law, Advances shall be made without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement. If Indemnitee has commenced legal proceedings in a court of competent jurisdiction in the State of Delaware to secure a determination that Indemnitee should be indemnified under applicable law, as provided in Section , any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.have
Appears in 1 contract
Agreement to Indemnify. (ai) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee Subject to the fullest extent permitted by lawlimitations provided herein, as soon as practicable but in any event no later than thirty (30) days after written demand is presented Sellers and Seller Parent shall, jointly and severally, indemnify and hold harmless Buyers to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid extent set forth in settlement (including all interest, assessments and other charges paid or payable in connection with or this Section Error! Reference source not found. in respect of such Expensesany Losses reasonably and proximately incurred by any Buyer or any of its Affiliates (collectively, judgments, fines, penalties or amounts paid in settlementthe "Buyer Indemnitees") of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee (A) as a result of any ----------------- inaccuracy or misrepresentation in or breach of or failure to perform any representation, warranty, or post-closing covenant, agreement or obligation of Sellers or Seller Parent in this Agreement or any agreement, document or certificate delivered hereunder, (B) in connection with any Excluded Operations Liability or (C) in connection with any Other Excluded Liability. In the actual case of clauses (B) and (C) in the foregoing sentence: (1) the Sellers' and Seller Parent's obligations to indemnify the Buyers are absolute notwithstanding any disclosures set forth in the Schedules hereto, and (2) Sellers or deemed receipt Seller Parent shall pay to Buyers any amounts paid by any Purchased Entity between the date hereof and the Closing Date in final settlement of any payments under this Agreementitem described therein.
(ii) Notwithstanding the foregoing, including (A) the creation sole recourse of the Trust Buyer Indemnitees for any Losses resulting from, relating to or arising in connection with any Fox River Liability shall be pursuant to the Fox River Indemnification Agreements and (B) the sole recourse of the Buyer Indemnitees for any Losses resulting from, relating to or arising in connection with Taxes shall be pursuant to Section 4 hereof. 5.9.
(iii) Notwithstanding anything in this Agreement to the contrary contrary, Sellers and Seller Parent shall be liable only for fifty percent (50%) of the Environmental Losses until such time as all Environmental Losses for which indemnification is sought hereunder exceeds $5,000,000 in the aggregate and Sellers and Seller Parent shall thereafter be liable for 100% of all Environmental Losses above such $5,000,000 in the aggregate of Losses.
(iv) Sellers and Seller Parent shall make payments of amounts under this Section 8.1(a) in increments of $100,000 or greater (except as provided set forth in Clause (B) of the following sentence). Accordingly, payments of obligations under this Section 58.1(a) shall be aggregated and then paid upon the earlier to occur of (A) such time that the unpaid indemnification amounts exceed $100,000 in the aggregate, Indemnitee or (B) six (6) months shall have elapsed since the most recent indemnification payment to the Buyers under this Section 8.1(a)
(A) Except as set forth in subsection (B) below, the aggregate collective liability of Sellers and Seller Parent for Losses under this Agreement (including under Sections 5.9 and 8.1 hereof) shall not be entitled exceed $100,000,000 (the "Maximum Amount").
(B) The Maximum Amount shall not apply to indemnification pursuant to this Agreement the obligations of Sellers and Seller Parent under or in connection with (x) Excluded Operations Liabilities, (y) Excluded Operations Taxes, or (z) the Fox River Indemnification Agreements, as to all of which there shall be no limit on the obligations of Seller and Seller Parent. For the purposes hereof, "Excluded Operations ------------------- Taxes" shall mean any Proceeding initiated Net Income Taxes arising by Indemnitee against reason of (aa) ----- the Company or any director or officer transfer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf AWSA Note as part of the Indemnitee Reorganization, and (bb) the sale and transfer of Appleton's ownership interests in Appleton Coated LLC and Appleton Leasing LLC to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.Appleton Coated Papers Holdings Inc.
(b) Notwithstanding Buyers shall indemnify and hold harmless Seller Parent, each Seller and their respective Affiliates (collectively, the foregoing"Seller Indemnitees" ------------------ and, together with the Buyer Indemnitees, the "Indemnitees") to the extent set ----------- forth in this Section 8, in respect of any and all Losses reasonably and proximately incurred by any Seller Indemnitee as a result of (i) the obligations any inaccuracy or misrepresentation in or breach of or failure to perform any representation, warranty, covenant, agreement or obligation of any Buyer in this Agreement or any agreement, document or certificate delivered hereunder. Buyers shall indemnify and hold harmless each Seller Indemnitee in respect of all Losses reasonably and proximately incurred by any Seller Indemnitee (i) as a result of the Company under Section 2(a) shall be subject to conduct of the condition that Business after the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and Closing; (ii) the obligation in respect of the Company any Stand-Alone Benefit Plan; (iii) in respect of any Business Guarantee or (iv) resulting from any allegation or claim by any investor in Buyer 1 or its shareholder or a lender to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition thateither Buyer, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, their shareholders or any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior Purchased Entity relating to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party investment or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteeloan.
Appears in 1 contract
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Xxxxx Xxxx - Indemnification Agreement_v2 Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Agreement to Indemnify. Following the Closing and subject to the limitations set forth herein,
(a) In the event Indemnitee wasSeller and, is or becomes a party pursuant to or witness or the Stockholder Representation Letters, the Seller Interest Holders and other participant inContinuing Employee Stockholders listed on Schedule 9.01(a) (together with the Seller, or is threatened the “Seller Indemnitors”) shall severally indemnify and agree to be made a party to or witness or other participant indefend and hold harmless Parent and Buyer (and their respective affiliates, officers, directors, employees, representatives and agents) (“Purchaser Indemnitees” and, singularly, a Proceeding “Purchaser Indemnitee”) against and in respect of any and all Damages, by reason of (or otherwise arising in part out of:
(i) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty Excluded Liability;
(30ii) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust Net Working Capital shortfall determined pursuant to Section 4 hereof. Notwithstanding anything 2.06(c);
(iii) any Seller Warranty Liabilities; or
(iv) any breach by the Seller of a representation, warranty or covenant contained in this Agreement to Agreement; provided, that, the contrary and except as provided in Section 5, Indemnitee shall Purchaser Indemnities will not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company Section 9.01(a) unless the Company has joined aggregate amount of all Damages for which indemnification is sought by the Purchaser Indemnities exceeds $80,000 (the “Purchaser Indemnification Basket”), in or consented which case the Purchaser Indemnities will be entitled to indemnification for the initiation full amount of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance")Damages; provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company Purchaser Indemnification Basket shall make such advances only not apply to the extent permitted by law.
(b) Notwithstanding the foregoing, any claim for indemnification based on items (i) the obligations of the Company under Section 2(a-(iii) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party above or any aspect thereof, and the Company hereby consents breach of Section 3.10 due to service uncollectability of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeAccounts Receivable.
Appears in 1 contract
Agreement to Indemnify. (a) In Subject to the event Indemnitee waslimitations set forth in this Article 12, is or becomes a party to or witness or other participant ineach Effective Time Securityholder shall severally, and not jointly, indemnify and hold harmless each OmniVision Indemnified Person from and against Damages arising from assessments, claims, demands, assertions of liability, or is actual or threatened to be made a party to or witness or other participant inactions, a Proceeding by reason of (or arising in part out of) an Indemnifiable Eventfines, the Company shall indemnify Indemnitee to the fullest extent permitted by lawpenalties, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expensesdefenses, judgments, finessettlements, penalties suits or proceedings (whether civil, criminal, administrative or investigative) directly or indirectly arising out of, resulting from or in connection with: (i) any failure of any representation or warranty made by CDM or any of the CDM Officers in this Agreement, the CDM Disclosure Letter, any CDM Ancillary Agreement or any exhibit or schedule to this Agreement to be true and amounts paid correct as of the date of this Agreement and as of the Closing Date (as though such representation or warranty were made as of the Closing Date, except in settlement the case of representations and warranties which by their terms speak only as of a specific date or dates) or any breach thereof; (including all interestii) any failure of any certification, assessments representation or warranty made by CDM or any of the CDM Officers in any certificate delivered to OmniVision pursuant to any provision of this Agreement to be true and other charges paid correct as of the date such certificate is delivered to OmniVision; (iii) any breach of or payable default in connection with any of the covenants or agreements made by CDM or any of the CDM Officers in respect of such this Agreement, the CDM Disclosure Letter, any CDM Ancillary Agreement or any exhibit or schedule to this Agreement; (iv) any inaccuracies in the Spreadsheet; (v) any Indemnifiable Merger Expenses, judgments, fines, penalties or amounts paid in settlement; (vi) of such Proceeding any Dissenting Shares Excess Payments; and (vii) any federal, state, local or foreign taxes imposed on the Indemnitee Damages as a result of the actual or deemed receipt arising under or from, directly or indirectly, (a) any government audit of any payments under this Agreement, including the creation CDM invoices pursuant to Contracts (for audits relating to all fiscal years of CDM from incorporation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary predecessor entity through September 30, 2004 and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer fifty percent of the Company unless the Company has joined in or consented to the initiation amount of such Proceeding. If so requested by IndemniteeDamages for audit adjustments relating to fiscal year 2005 (beginning October 1, the Company shall advance2004 and ending September 30, within ten (102005)) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed4.13(r). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Agreement to Indemnify. Following the Closing and subject to the limitations set forth herein,
(a) In The Indemnifying Sellers shall severally, on a pro rata basis in accordance with their percentage interests set forth on Schedule 6.02(b) indemnify, defend and hold harmless Buyer and its respective Affiliates, officers, directors, employees, representatives and agents (“Purchaser Indemnitees” and, singularly, a “Purchaser Indemnitee”) against and in respect of any and all Damages, by reason of or otherwise arising out of:
(i) any Excluded Liability;
(ii) any Net Working Capital shortfall determined pursuant to Section 2.06;
(iii) any claim by an employee, former employee, independent contractor or former independent contractor of Seller, or any other person or entity, based upon (A) such employee’s or former employee’s employment or such independent contractor’s or former independent contractor’s contract with Seller prior to the event Indemnitee wasClosing Date, is (B) the termination of employment of current or becomes a party former employees or current or former independent contractors of Seller prior to the Closing Date, or witness (C) any severance arrangements or payments or any benefit, salary, bonus, commission or other participant in, compensation payments made or is threatened required to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with such terminations prior to the Closing Date;
(iv) any Seller Warranty Liabilities; or
(v) any breach by Seller of a representation, warranty or covenant contained in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement; provided, including that, the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall Purchaser Indemnitees will not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company Section 9.01(a) unless the Company has joined aggregate amount of all Damages for which indemnification is sought by the Purchaser Indemnitees exceeds $140,000 (the “Purchaser Indemnification Basket”), in or consented which case the Purchaser Indemnitees will be entitled to indemnification for the initiation full amount of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance")Damages; provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company Purchaser Indemnification Basket shall make such advances only not apply to any claim for indemnification based on (A) items (i) through (iv) above or (B) item (v) above to the extent permitted such claim relates to a breach by lawSeller under Section 3.01, 3.02, 3.05, 3.09, 3.12, 3.22 or 3.25 (such claims collectively, the “Seller Carved-Out Liabilities”).
(b) Notwithstanding Buyer shall indemnify, defend and hold harmless Seller and its Affiliates, officers, directors, employees, representatives and agents (the foregoing, “Seller Indemnitees”) against and in respect of any and all Damages by reason of or otherwise arising out of:
(i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and Assumed Liability; or
(ii) the obligation any breach by Buyer of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition any representation, warranty or covenant contained in this Agreement; provided, that, if, when and to the extent that the Reviewing Party determines that Indemnitee would Seller Indemnitees will not be permitted to be so indemnified under applicable law, the Company shall be entitled to indemnification pursuant to this Section 9.01(b) unless the aggregate amount of all Damages for which indemnification is sought by the Seller Indemnities exceeds $140,000 (the “Seller Indemnification Basket”), in which case the Seller Indemnitees will be reimbursed by Indemnitee (who hereby agrees entitled to reimburse indemnification for the Company) for all full amount of such amounts theretofore paidDamages; provided, howeverfurther, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction the Seller Indemnification Basket will not apply to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by claim for indemnification based on item (i) above (the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed“Buyer Carved-Out Liabilities”). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or Xxxx Xxxx Indemnification any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Agreement to Indemnify. (a) In Subject to the event Indemnitee waslimitations provided herein, is or becomes a party to or witness or other participant inBuyer, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of RBC and their respective Affiliates (or arising in part out of) an Indemnifiable Eventcollectively, the Company "Buyer Indemnitees") shall indemnify Indemnitee each be indemnified and held harmless to the fullest extent permitted set forth in this Article IX on a joint and several basis by lawSeller and LJB in respect of any Damages reasonably and proximately incurred by any Buyer Indemnitee (i) as a result of any inaccuracy or misrepresentation in or breach of or failure to perform any representation, as soon as practicable but warranty, covenant, agreement or obligation of Seller or LJB in this Agreement or (ii) in connection with any event no later than thirty Excluded Liability, including, without limitation, all liability relating to Seller's pension plan for hourly employees and all Environmental Liabilities. The aggregate liability of Seller and LJB collectively under this Section 9.01(a) shall not exceed the Indemnification Limit, except in the case of Damages due to Seller's or LJB's fraud or willful misconduct.
(30b) days after written demand is presented Seller, LJB and their Affiliates (collectively the "Seller Indemnitees") shall each be indemnified and held harmless to the Company, against extent set forth in this Article IX on a joint and several basis by Buyer and RBC in respect of any and all Expenses, judgments, fines, penalties Damages reasonably and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and proximately incurred by any federal, state, local or foreign taxes imposed on the Seller Indemnitee as a result of (i) any inaccuracy or misrepresentation in or breach of or failure to perform any representation, warranty, covenant, agreement or obligation of Buyer or RBC in this Agreement; (ii) the actual Assumed Liabilities; or deemed receipt (iii) Buyer's conduct of any payments under the Business after the Closing.
(c) Notwithstanding Section 9.01(a), Seller and LJB shall not be liable as Indemnifying Parties until all claims by the Buyer Indemnitees for indemnification, other than claims referred to in the proviso to this sentence, exceed $25,000 in the aggregate, and thereafter Seller and LJB shall be liable, subject to the other limitations provided for elsewhere in this Agreement, including for all indemnification claims except the creation first $25,000 of claims arising after the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance")Closing Date; provided, however, that such Expenses Seller and LJB shall be advanced only upon delivery liable, subject to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified other limitations provided for elsewhere in this Agreement, for all claims by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, Buyer Indemnitees arising out of (i) the obligations fraud or willful misconduct of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and Seller or LJB or (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent any Lien that the Reviewing Party determines that Indemnitee would does not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in constitute a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteePermitted Lien.
Appears in 1 contract
Agreement to Indemnify. Each Company Securityholder (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Eventcollectively, the Company shall indemnify Indemnitee to “Indemnifying Parties”), severally and not jointly, will as of and after the fullest extent permitted by lawClosing, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to indemnify, save, defend, and hold harmless each of the Company, Indemnified Parties from and against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable Damages incurred in connection with, arising out of, resulting from, or incident to, in each case with respect to itself and, unless otherwise specifically specified below, limited to such Company Securityholder’s Pro Rata Percentage of the Indemnity Escrow Amount:
(i) any inaccuracies in or breach of any representations made by the Company or such Company Securityholder in this Agreement;
(ii) any breach of any covenant or agreement made by the Company or such Company Securityholder in or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under accordance with this Agreement, including ;
(iii) any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement Company or such Company Securityholder (or any Person acting on their behalf) in connection with any Proceeding initiated of the Transactions;
(iv) any breach of any covenant or agreement made by Indemnitee against any Indemnifying Party in any Ancillary Agreement delivered by such Indemnifying Party;
(v) any Indebtedness of the Company or any director or officer Company Transaction Expenses that are unpaid as of the Closing and not taken into account in the final calculation of Closing Indebtedness or Closing Transaction Expenses;
(vi) any claim or allegation that any Company unless Securityholder or any other Person is entitled to any amount in connection with the Transactions (other than, with respect to any Company has joined in or consented to the initiation of such Proceeding. If so requested by IndemniteeSecurityholder, the consideration allocable to such Company shall advanceSecurityholder in accordance with Article I, within ten as set forth in the Closing Consideration Schedule);
(10vii) business days of such requestany Pre-Closing Tax, any and all Expenses to Indemnitee except (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only i) to the extent permitted by law.
(b) Notwithstanding such Taxes are included in the foregoingClosing Statement or are expressly taken into account in Indebtedness, (i) Closing Transaction Expenses or the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, Adjustment Amount and (ii) any Excluded Tax Liability.
(viii) the obligation matters set forth on Section 8.2 of the Company Disclosure Schedule. For purposes of clarifying the meaning of “several” indemnification by each Indemnifying Party under this Section 8.2(a): (x) any portion of the Indemnity Escrow Amount that is recovered by Parent, the Purchaser or any Indemnified Party in accordance with this Article VIII will be deemed to make an Expense Advance pursuant have been “severally” recovered from the Indemnifying Parties in accordance with the terms of this Agreement; (y) with respect to claims for indemnification under this Section 2(a8.2(a) shall that are not recovered from the Indemnity Escrow Amount (which, for the avoidance of doubt, will be the secondary means of recourse and will only be available in the event in which the R&W Insurance Policy has been depleted and paid out in full to the Parent or Purchaser or otherwise does not cover the indemnifiable event, as set forth in Section 8.2(f)(A)), (1) if any indemnification payment is owed, each Indemnifying Party’s indemnification obligation in accordance with this Article VIII will be equal to such Indemnifying Party’s Pro Rata Percentage of the applicable Damages subject to the limitations set forth in Section 8.2(f) below, with respect to which the indemnification payment is made and (2) such claim for indemnification will be subject to Section 11.17; and (z) in the condition thatcase of a claim for indemnification against one or more (but not all) Indemnifying Parties (any such claims, if“Indemnifying Party Specific Claims”), when and the Indemnified Party will have the right, subject to the extent applicable limitations set forth herein, including in Section 8.2(f) below, to (1) offset the applicable Damages from the portion of the Indemnity Escrow Amount that would otherwise be allocable to the Reviewing Indemnifying Party determines responsible for the breach that Indemnitee would not gave rise to such claim for indemnification (each, a “Responsible Indemnifying Party”), in which case each Responsible Indemnifying Party will be permitted obligated to be so indemnified under applicable lawpromptly pay to Purchaser the amount of Damages arising from the breach that are allocable to such Responsible Indemnifying Party to replenish such portion of the Indemnity Escrow Amount, and (2) pursue the Company shall be entitled to be reimbursed by Indemnitee indemnification claim directly against each Responsible Indemnifying Party responsible for such breach in accordance with the terms of this Agreement (who hereby agrees to reimburse the Company) for all and each such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Responsible Indemnifying Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not will be required to reimburse indemnify the Company Indemnified Parties for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company Damages arising from such claim for Expense Advances shall be unsecured and no interest shall be charged thereon, indemnification subject to the extent permitted by law. If there has not been a Change in Controlapplicable limitations set forth herein, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to including in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee8.2(f) below).
Appears in 1 contract
Agreement to Indemnify. (a) In From and after the event Indemnitee wasClosing Date and subject to the terms and conditions of this Article IX, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable EventBuyer, the Company and its Subsidiaries and their respective officers, directors, employees, partners, members, agents, representatives, successors and permitted assigns (collectively, the “Buyer Indemnitees”) each shall indemnify Indemnitee be indemnified, held harmless, compensated and reimbursed by the Sellers, jointly and severally, as the Buyer Indemnitees’ sole and exclusive remedy (other than pursuant to the fullest extent permitted by law, as soon as practicable but in Seller Guarantee) for any event no later than thirty (30) days after written demand is presented breach of this Agreement to the Company, against extent set forth in this Article IX in respect of any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid Damages directly incurred or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and suffered by any federal, state, local or foreign taxes imposed on the Buyer Indemnitee as a result of (i) any breach of, or inaccuracy in, any representation or warranty made by the actual Company or deemed receipt the Sellers in Article III or Article V of this Agreement as of the date of this Agreement or as of the Closing as if such representation or warranty had been made on and as of the Closing (in each case after giving effect to any payments under updated Material Contracts Schedule pursuant to a permitted Schedule Supplement), (ii) any breach of, or any failure to perform any covenant or agreement of the Company or the Sellers contained in this Agreement, including the creation of the Trust pursuant (iii) any Transaction Expenses not paid prior to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement or in connection with the Closing, (iv) any Proceeding initiated by Indemnitee against inaccuracy in Section 3.07(b), (v) Taxes imposed on the Company or any director or officer of its Subsidiaries with respect to any Pre-Signing Tax Period (excluding any Taxes attributable to a breach of Section 10.02(a)(iii)), (vi) the Company unless matters set forth on the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten Specified Matters Schedule (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only except to the extent permitted by lawany such Damages constitute Settlement Payments and are taken into account in determining Sale Consideration pursuant to Section 1.02), and (vii) any 280G Indemnifiable Matter.
(b) Notwithstanding the foregoing, foregoing (i) the obligations of the Company no Buyer Indemnitee shall be indemnified under Section 2(a9.01(a) for any claim (or series of related claims) for breach of a representation and warranty set forth in the Disclosure Schedules (and not, for the avoidance of doubt, a representation and warranty set forth in Article III or Article V of this Agreement) unless the aggregate amount of Damages incurred or suffered by the Buyer Indemnitees as a result of such breach exceeds $25,000 (the “Small Claims Threshold”), whereupon the Buyer Indemnitees shall be entitled (subject to the condition same limitations applicable to the applicable section of this Agreement to which such disclosure relates) to indemnification for all Damages so incurred or suffered, including the Small Claims Threshold; (ii) no Buyer Indemnitee shall be indemnified under Section 9.01(a) unless and until the aggregate amount of all Damages incurred or suffered by any or all of the Buyer Indemnitees hereunder exceeds $2,750,000 (the “Deductible Amount”), whereupon the Buyer Indemnitees shall be entitled (subject to the other limitations herein) to indemnification for all Damages incurred or suffered by them only in excess of the Deductible Amount; provided that the Reviewing Party such limitation shall not have determined apply (A) to Damages relating to (1) the breach of a Specified Representation in a written opinion, in any case in which Article III or Article V or (2) to the special, independent counsel matters referred to in Section 3 hereof is involved9.01(a)(ii), (iii), (iv), (v), (vi), or (vii) or (B) in the event of fraud or willful misconduct; and (iii) the maximum aggregate amount of indemnification that the Buyer Indemnitees may recover under Section 9.01(a) shall not exceed $19,250,000 (the “Cap”); provided further that the Cap shall not apply (A) to Damages relating to (1) the breach of a Specified Representation in Article III or Article V or (2) to the matters referred to in Section 9.01(a)(iii), (iv), (v), (vi), or (vii) or (B) in the event of fraud or willful misconduct.
(c) From and after the Closing Date and subject to the terms of this Article IX, the Seller, their Affiliates and their respective officers, directors, employees, partners, members, agents, representatives, successors and permitted assigns (collectively, the “Seller Indemnitees”) shall each be indemnified, held harmless, compensated and reimbursed to the extent set forth in this Article IX, by Buyer and the Company (jointly and severally) in respect of any and all Damages directly incurred or suffered by any Seller Indemnitee would not as a result of any breach of, or inaccuracy in, any representation or warranty made by Buyer in this Agreement as of the date of this Agreement or as of the Closing as if such representation or warranty had been made on and as of the Closing, or any failure to perform any covenant or agreement made by Buyer or, with respect to breaches of covenants to be permitted to performed following the closing, by the Company in this Agreement. Notwithstanding the foregoing (x) no Seller Indemnitee shall be indemnified under applicable lawthis Section 9.01(c) unless and until the aggregate amount of all Damages incurred or suffered by any or all of the Seller Indemnitees hereunder exceeds the Deductible Amount, whereupon the Seller Indemnitees shall be entitled to indemnification for all Damages incurred or suffered by them only in excess of the Deductible Amount; provided that such limitation shall not apply to damages relating to the breach of a Specified Representation in Article IV or to Buyer’s failure to make any of the payments required to be made pursuant to Sections 1.04(b), (c) and (d); (y) the maximum aggregate amount of indemnification that the Seller Indemnitees may recover under Section 9.01(c) shall not exceed the Cap; provided that the Cap shall not apply to damages relating to the breach of a Specified Representation in Article IV or to Buyer’s failure to make any of the payments required to be made pursuant to Sections 1.04(b), (c) and (d); and (z) no Seller Indemnitee shall be entitled to indemnification under Section 9.01(c) to the extent the Damages relate to any action taken or omitted to be taken by any Seller Indemnitee or any of its Affiliates. Furthermore, no Seller Indemnitee shall have any right to assert any claims pursuant to this Article IX with respect to any Damage or other claim to the extent it is (A) primarily a possible or potential Damage or claim that such Seller Indemnitee believes may be asserted rather than a Damage or claim that has, in fact, been filed of record against such Seller Indemnitee or paid or incurred by such Seller Indemnitee or (B) a Damage or claim with respect to which such Seller Indemnitee has taken action (or caused action to be taken) to accelerate the time period in which such matter is asserted or payable.
(d) This Article IX constitutes the Buyer Indemnitees’ sole and exclusive remedy for any and all Damages or other claims (excluding actions for specific performance or similar injunctive relief or claims of, or causes of action arising from, actual common law fraud, which may be brought without limitation under this Agreement against the fraudulent party) relating to or arising from this Agreement, any of the agreements, documents and instruments executed and delivered in connection herewith and the transactions contemplated by any of the foregoing. The Buyer Indemnitees may not avoid such limitation on liability by seeking damages for breach of contract, tort or pursuant to any other theory of liability. Except as expressly contemplated by Section 9.01(a), no claim (excluding any actions for specific performance or similar injunctive relief or claims of, or causes of action arising from, actual common law fraud, which may be brought without limitation under this Agreement against the fraudulent party) shall be brought or maintained by Buyer, its Subsidiaries (including, after the Closing, the Company and its Subsidiaries) or its or their respective Affiliates, successors or permitted assigns or any other Buyer Indemnitee, and no recourse shall be brought or granted against any of them, by virtue of or based upon any alleged misrepresentation or inaccuracy in or breach of any of the representations, warranties or covenants of the Company or any other Person set forth or contained in this Agreement, or any of the agreements, documents and instruments executed and delivered in connection herewith, the subject matter of this Agreement, any information, document or material furnished or made available to Buyer in “data rooms,” management presentations or in any other form in anticipation of or in connection with the transactions contemplated by this Agreement, the ownership, operation, management, use, control of, and other actions or omissions with respect to, the business of the Company and the Subsidiaries, any of their assets, any of the transactions contemplated hereby or any other actions or omissions at or prior to the Closing. Buyer, its Subsidiaries (including, after the Closing, the Company and its Subsidiaries), and its and their respective Affiliates, successors and permitted assigns and any other Buyer Indemnitee hereby irrevocably waive all such claims of any type or description and hereby agree to indemnify and hold harmless each of the Seller Indemnitees from and against and in respect of any and all Damages and other losses incurred by any Seller Indemnitee as a result of any such claim brought or maintained by any such party against any Seller Indemnitee in contravention of this Section 9.01(d). EACH BUYER INDEMNITEE (EACH, A “RELEASING PARTY”) EXPRESSLY WAIVES ALL RIGHTS AFFORDED BY ANY STATUTE WHICH LIMITS THE EFFECT OF A RELEASE WITH RESPECT TO UNKNOWN CLAIMS. EACH RELEASING PARTY UNDERSTANDS THE SIGNIFICANCE OF THIS RELEASE OF UNKNOWN CLAIMS AND WAIVER OF STATUTORY PROTECTION AGAINST A RELEASE OF UNKNOWN CLAIMS. EACH RELEASING PARTY ACKNOWLEDGES AND AGREES THAT THIS WAIVER IS AN ESSENTIAL AND MATERIAL TERM OF THIS AGREEMENT.
(e) For the sole purpose of appropriately apportioning any Taxes relating to any Straddle Period, the portion of such Tax that is attributable to the Tax period that ends on and includes the date hereof shall be (i) in the case of a Tax that is not transaction-based, the total amount of such Tax for the full Tax period that includes the date hereof multiplied by a fraction, the numerator of which is the number of days from the beginning of such Tax period to and including the date hereof and the denominator of which is the total number of days in such full Tax period, and (ii) in the obligation case of a transaction-based Tax, including a Tax based on net income, the Tax that would be due with respect to such partial period, if such partial period that includes the date hereof were a full Tax period, apportioning income, gain, expenses, loss, depreciation, deductions and credits equitably based on an interim closing of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteebooks.
Appears in 1 contract
Agreement to Indemnify. Subject to the limitations set forth in Sections 9.1 (ad) In the event Indemnitee wasand 10.3-10.8, is or becomes a party to or witness or other participant ineach Seller (each, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event"INDEMNIFYING PERSON" and collectively, the Company shall "INDEMNIFYING PERSONS") will severally, and not jointly, based on each such Seller's Pro Rata Share, indemnify Indemnitee to and hold harmless Buyer, the fullest extent permitted by lawGroup Companies and their respective directors, as soon as practicable but in any event no later than thirty officers, agents, representatives, shareholders and employees, and each Person, if any, who controls or may Control Buyer or the Group Companies (30each, an "INDEMNIFIED PERSON" and collectively, the "INDEMNIFIED PERSONS") days after written demand is presented to the Company, from and against any and all Expenseslosses, judgmentscosts, finesdamages, penalties Liabilities and amounts paid in settlement expenses, including reasonable attorneys' fees, other professionals' and experts' reasonable fees, and court or arbitration costs (including all interestcollectively, assessments and other charges "DAMAGES"), directly incurred, paid or payable accrued in connection with with, resulting from or in respect arising out of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result breach of the actual or deemed receipt of any payments Sellers' obligations under this Agreement, including the creation (a) any failure of any Warranty of the Trust pursuant to Section 4 hereof. Notwithstanding anything Sellers in this Agreement to be true and correct as of the contrary and Agreement Date and, as regards the Repeating Warranties, as of Closing as though such Warranty were made as of Closing (except for any such Warranties that, by their terms, speak only as provided in Section 5of a specific date or dates), Indemnitee shall not be entitled to indemnification pursuant to this Agreement (b) any breach of or default in connection with any Proceeding initiated of the covenants or agreements made by Indemnitee against any Seller in this Agreement, the Disclosure Letter or any certificate or document delivered pursuant to this Agreement; and (c) any Transaction Expenses paid or to be paid by the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
not already deducted from the Purchase Price pursuant to the definition thereof. Damages shall be calculated as the Indemnified Person's direct loss (bDKK for DKK or that other currency which may apply to the Damages) Notwithstanding without regard to any method of calculation (P/E, cash flow multiple or similar method) used for the foregoing, (i) the obligations determination of the Company under Section 2(a) Purchase Price. The Damages shall be subject the net loss effectively sustained by the Indemnified Person less any benefits available to the condition that Indemnified Person directly connected to the Reviewing Party Damages, including but not limited to loss covered by insurance and the Tax benefit of a Tax deductible loss. Damages shall not have determined be calculated exclusive of any indirect or consequential loss. In addition, as stated in subsection 2.2(b)(iii), if the Net Amount calculated pursuant to such section is less than zero (in a written opinion0), such difference shall constitute indemnifiable Damages hereunder. Materiality, Material Adverse Effect, knowledge and similar standards or qualifications in any case representation, warranty or covenant shall only be taken into account in which the specialdetermining whether a breach of or default in connection with such representation, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted warranty or covenant (or failure of any representation or warranty to be indemnified under applicable lawtrue and correct) exists, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse reapplied in determining the Company for amount of any Expense Advance until a final judicial determination is made indemnifiable Damages with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Controlbreach, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party default or if the Reviewing Party determines that Indemnitee substantively would not be permitted failure to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof true and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteecorrect.
Appears in 1 contract
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "“Expense Advance"”); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's ’s obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's ’s Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Sources: Securities Purchase Agreement (Mti Technology Corp)
Agreement to Indemnify. Following the Closing and subject to the limitations set forth herein,
(a) In the event Indemnitee wasCompany Stockholders shall severally (in an amount equal to 1/7th of any such Damages per Company Stockholder) indemnify and agree to defend and hold harmless Parent and the Surviving Entity (and their respective Affiliates, officers, directors, employees, representatives and agents) (“Parent Indemnified Persons” and, singularly, a “Parent Indemnified Person”) against and in respect of any and all Damages, by reason of or otherwise arising out of:
(i) Parent Indemnified Taxes;
(ii) any amount Parent is entitled to claim as Damages calculated in accordance with Section 2.07(c);
(iii) any claim by an employee or becomes a party former employee of the Company, or any other person or entity, based upon (A) such employee’s or former employee’s employment with the Company prior to the Effective Time, (B) the termination of employment of current or witness former employees of the Company pursuant to this Agreement or otherwise prior to the Effective Time, or (C) any severance arrangements or payments or any benefit, salary, bonus, commission or other participant in, compensation payments made or is threatened required to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee connection with such terminations prior to the fullest extent permitted Effective Time;
(iv) any claim by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to a Company Stockholder or former stockholder of the Company, or any other person or entity, against the Company or any and all Expensesof its Affiliates, judgmentsofficers, finesdirectors, penalties and amounts paid in settlement employees or agents, based upon any rights of a stockholder (other than the right of Company Stockholders to receive Merger Consideration pursuant to this Agreement), including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on dissenter rights under the Indemnitee as a result applicable provisions of the actual California Code, any option, preemptive rights or deemed receipt rights to notice or to vote;
(v) a breach of any payments under this Agreementa representation, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything warranty or covenant contained in this Agreement to made by the contrary and except as provided Company; or
(vi) a breach of a representation, warranty or covenant contained in Section 5this Agreement made by such Company Stockholder. provided, Indemnitee shall that, the Parent Indemnified Persons will not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company Section 11.01(a) unless the Company has joined aggregate amount of all Damages for which indemnification is sought by the Parent Indemnified Persons exceeds $85,000 (the “Parent Indemnification Basket”), in or consented which case the Parent Indemnified Persons will be entitled to indemnification for the initiation full amount of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance")Damages; provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company Parent Indemnification Basket shall make such advances only not apply to any claim for indemnification based on items (i), (ii), (iii), (iv) and (vi) above or any claim for indemnification under item (v) above to the extent permitted by lawsuch claim relates to a breach of representation, warranty or covenant under Section 4.06, Section 4.08, Section 4.09, Section 4.11 or Section 4.18 due to uncollectability of accounts receivable.
(b) Notwithstanding Parent shall indemnify and agrees to defend and hold harmless the foregoingCompany Stockholders (and their respective affiliates, representatives and agents) against and in respect of any and all Damages by reason of or otherwise arising out of:
(i) the obligations a breach by Parent or Merger Sub of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (any representation, warranty or covenant contained in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and this Agreement; or
(ii) the obligation any claim of the Company false or misleading information relating to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition Parent included in Parent SEC Filings provided, that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall Stockholders will not be entitled to be reimbursed by Indemnitee (who hereby agrees indemnification pursuant to reimburse this Section 11.01(b) unless the Company) aggregate amount of all Damages for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made which indemnification is sought by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse Company Stockholders exceeds $85,000, in which case the Company Stockholders will be entitled to indemnification for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights the full amount of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeDamages.
Appears in 1 contract
Sources: Merger Agreement (Perficient Inc)
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee Subject to the fullest extent permitted by lawlimitations set forth in this Section 11, Seven will indemnify and hold harmless Portable and its officers, directors, agents and employees, and each person, if any, who controls or may control Portable within the meaning of the Securities Act (hereinafter referred to individually as soon an "INDEMNIFIED PERSON" and collectively as practicable but in any event no later than thirty (30"INDEMNIFIED PERSONS") days after written demand is presented to the Company, from and against any and all Expensesclaims, judgmentsdemands, finesactions, penalties causes of actions, losses, costs, damages, liabilities and amounts paid in settlement expenses including, without limitation, reasonable legal fees actually incurred by Portable (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlementhereinafter referred to as "DAMAGES"):
(a) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt Arising out of any payments under this Agreement, including the creation misrepresentation or breach of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement or default in connection with any Proceeding initiated of the representations, warranties and covenants given or made by Indemnitee against the Company Seven in this Agreement or any director certificate, document or officer instrument delivered by or on behalf of Seven pursuant hereto (other than with respect to changes in the truth or accuracy of the Company unless representations and warranties of Seven under this Agreement after the Company date hereof if Seven has joined advised Portable of such changes in or consented an update to Exhibit 3.0 delivered prior to the initiation Closing and Portable has nonetheless proceeded with the Closing); or
(b) Resulting from any failure of any Seven Shareholders to have good, valid and marketable title to the issued and outstanding Seven Common Stock held by such Proceedingshareholders, free and clear of all liens, claims, pledges, options, adverse claims, assessments or charges of any nature whatsoever, or to have full right, capacity and authority to vote such Seven Common Stock in favor of the Merger and the other transactions contemplated by the Agreement of Merger. If so requested by IndemniteeIn seeking indemnification for Damages under this Section, the Company Indemnified Persons shall advance, within ten (10) business days of such request, exercise their remedies solely with respect to the Escrow Shares and any and all Expenses other assets deposited in escrow pursuant to Indemnitee (an "Expense Advance")the Escrow Agreement; provided, however, that no such Expenses shall claim for Damages will be advanced only upon delivery to asserted after the Company of an undertaking by or on behalf expiration of the Indemnitee Escrow Period. Except for intentional fraud: (i) no Seven Shareholder shall have any liability to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only an Indemnified Person under this Agreement except to the extent permitted by law.
(b) Notwithstanding of such Seven Shareholder's Escrow Shares and any other assets deposited under the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, Escrow Agreement and (ii) the obligation of the Company to make an Expense Advance pursuant to remedies set forth in this Section 2(a) 11.2 shall be subject the exclusive remedies of Portable and the other Indemnified Persons hereunder against any Seven Shareholder. The indemnification provided for in this Section 11.2 shall not apply unless the aggregate Damages for which one or more Indemnified Persons is entitled to indemnification exceeds Twenty-Five Thousand Dollars ($25,000) (the condition that"BASKET"), if, when and in which case the indemnification provided for in this Section 11.2 shall apply to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be aggregate Damages for which one or more Indemnified Persons is entitled to be reimbursed by Indemnitee indemnification exceeds Twelve Thousand Five Hundred Dollars (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed$12,500). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company Parent shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, law against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable Expenses incurred in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by lawClaim.
(b) Notwithstanding the foregoing, the Indemnitee shall not be entitled to indemnification for Expenses which are finally judicially determined to have resulted primarily from Indemnitee’s gross negligence or bad faith in fulfilling her duties to the applicable Company or Parent.
(ic) Further, the obligations of the Company Parent under Section 2(aArticle II(a) shall be subject to the condition that the Reviewing Party Parent’s Board of Directors shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law. However, and (ii) to the obligation extent that Indemnitee has been successful on the merits or otherwise in defense of the Company any Claim relating in whole or in part to make an Expense Advance pursuant to Section 2(a) Indemnifiable Event, including dismissal without prejudice, Indemnitee shall be subject indemnified against Expenses incurred in connection with that Claim. In connection with any determination by Parent’s Board of Directors as to whether Indemnitee is entitled to be indemnified, the burden of proof shall be on Parent to establish that Indemnitee is not so entitled.
(d) Expenses will be reimbursed or advanced (“Expense Advance”) when and as incurred promptly upon submission by Indemnitee of statements to the condition that, ifParent. If, when and to the extent that the Reviewing Party Parent’s Board of Directors determines that Indemnitee would not be permitted to be so indemnified under applicable lawlaw or under Article II(a), the Company Parent shall not be obligated to reimburse or advance Expenses to Indemnitee and shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the CompanyParent) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable lawlaw or this Agreement, any determination made by the Reviewing Party Parent’s Board of Directors that Indemnitee would not be permitted to be indemnified under applicable law or this Agreement shall not be binding and Indemnitee shall not be required to reimburse the Company Parent for any Expense Advance such amounts paid until a final judicial determination is made with respect thereto made.
(e) If any Claim is commenced as to which all rights Indemnitee proposes to demand indemnification, Indemnitee will notify the Parent with reasonable promptness; provided, however, that any failure by Indemnitee to notify the Parent will relieve the Parent from its obligations hereunder only to the extent the Parent has been prejudiced by such failure or delay.
(f) Indemnitee will have the right to retain counsel of appeal therefrom have been exhausted or have lapsed)her own choice to represent her, and the Parent will pay the reasonable Expenses of one such counsel only. Indemnitee's obligation The Parent retains the right to reimburse participate in the Company for Expense Advances shall defense of such Claim as to which Indemnitee seeks indemnification through counsel of the Parent’s choice (the cost of which will be unsecured paid by the Parent) and no interest shall be charged thereonIndemnitee will reasonably cooperate with such counsel and the Parent (including, to the extent permitted by law. If there has not been a Change in Controlpossible and consistent with her own interests, keeping the Reviewing Party shall Parent reasonably informed of such defense).
(g) The Parent will be selected by liable for any settlement of any Claim against Imdemnitee made with the Board of DirectorsParent’s written consent, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would consent will not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.unreasonably withheld
Appears in 1 contract
Agreement to Indemnify. (a) The Seller shall indemnify, defend, and hold harmless the Purchaser and its respective officers, directors, employees, representatives, agents, successors, and assigns (collectively, the “Indemnitees”) from, against, and in respect of any and all damages incurred by any Indemnitee arising out of or as a result of: (i) any inaccuracy or misrepresentation in or breach of any representation or warranty made by the Seller in this Agreement; (ii) any breach of any covenant or agreement made by the Seller in this Agreement; and/or (iii) any and all proceedings, judgments, decrees, awards, assessments, fees, and expenses incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnification.
(b) The Seller shall not be required to provide indemnification to any Indemnitee pursuant to Section 7.1(a) unless and until the aggregate amount of all damages incurred by all Indemnitees responsive to such Section exceeds Five Thousand Dollars ($5,000) (the “Deductible”), whereupon the Indemnitees shall be entitled to indemnification under such Section only with respect to damages in excess of such Deductible. The maximum aggregate monetary liability of the Seller to indemnify the Indemnitees under Section 7.1(a) shall not exceed the Purchase Price (the “Cap”) in the aggregate. Notwithstanding the foregoing, neither the Deductible nor the Cap shall apply to claims arising out of fraud, intentional misrepresentation, or gross negligence.
(c) If any third party notifies any Indemnitee with respect to any matter which may give rise to a claim for indemnification against the Seller under this Article VII, then the Indemnitee will notify the Seller thereof within thirty (30) days thereafter, such notice to state the nature and basis of any claim made by the third party; provided that, no delay on the part of the Indemnitee in notifying the Seller will relieve the Seller from any obligation hereunder unless, and then solely to the extent that, the Seller is demonstrably prejudiced thereby. In the event the Seller notify the Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than within thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or date the Indemnitee has given notice of the matter that the Seller will indemnify the Indemnitee in respect of such Expensesmatter, judgmentsthen the Seller may, finesby notice to the Indemnitee within such 30-day period, penalties or amounts paid in settlement) assume the defense of such Proceeding and any federal, state, local or foreign taxes imposed on matter. If the Indemnitee as a result of Seller assume the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation defense of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoingmatter, (i) the obligations Seller will defend the Indemnitee against the matter with counsel of Seller’s choice reasonably satisfactory to the Indemnitee, (ii) the Indemnitee may retain separate counsel at its sole cost and expense, and (iii) the Seller will not consent to the entry of a judgment or consent order with respect to the matter, or enter into any settlement, in each case which either (A) grants the plaintiff or claimant any form of relief other than monetary damages which will be satisfied by the Seller or (B) fails to include a provision whereby the plaintiff or claimant in the matter releases the Indemnitees from all liability with respect thereto, in either such case without the written consent of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party Indemnitee (which consent shall not have determined be unreasonably withheld or delayed). If the Seller has not assumed the defense of such matter, (in a written opinion, i) the Indemnitee may defend against the matter in any case in which the special, independent manner it reasonably may deem appropriate and with counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable lawof its choice, and (ii) the obligation Seller may retain separate counsel at its sole cost and expense. Notwithstanding anything to the contrary in the foregoing, if defendants in any action include any Indemnitee and Seller, and such Indemnitee shall have been advised by its counsel that there may be material legal defenses available to such Indemnitee inconsistent with those available to Seller, or if a conflict of interest exists between an Indemnitee and Seller with respect to such claim or the defense thereof, or if an Indemnitee reasonably determines that Seller’s control of such defense would reasonably be expected to have an adverse effect on the Assets or the outcome of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition thatmatter, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable lawthen in any such case, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation reassert such defense through its own counsel, and in any court such event (or in the States event that the Seller does not timely assume or diligently pursue the defense of California such matter as provided above) the reasonable fees and expenses of the Indemnitee’s counsel shall be borne by the Seller and shall be paid by them from time to time within twenty (20) days of receipt of appropriate invoices therefore.
(d) In the event that an Indemnitee notifies the Seller of any claim for indemnification hereunder that does not involve a third party claim, the Seller shall, within thirty (30) days after the date of such notice, pay to the Indemnitee the amount of damages payable pursuant to this Section 7.1 and shall thereafter pay any other damages payable pursuant to this Section 7.1 and arising out of the same matter on demand, unless the Seller dispute in writing its liability for, or Delaware having subject matter jurisdiction thereof and the amount of, any such damages within such 30-day period, in which venue is proper seeking an initial determination by the court or challenging any case such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise payment shall be conclusive made as provided above in respect of any matters or amounts not so disputed and binding any damages in respect of the matters so disputed shall be paid within five (5) business days after any determination (by agreement of Purchaser and Seller, or pursuant to arbitration in accordance with Section 8.3) that the Seller are liable therefore pursuant to this Section 7.1.
(e) In connection with any payment of damages pursuant to this Section 7.1, the Seller shall pay to the Indemnitee(s) an amount calculated like interest on the Company and Indemniteeamount of such damages at the applicable interest rate from the date of Closing until the Indemnitee(s) shall have been indemnified in respect thereof.
Appears in 1 contract
Agreement to Indemnify. The Corporation agrees to indemnify Indemnitee as follows:
(a) In Subject to the event exceptions contained in Section 4 below, if Indemnitee was, was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to any Proceeding (other than an action by or witness or other participant in, a Proceeding in the right of the Corporation) by reason of Indemnitee’s Corporate Status, Indemnitee shall be indemnified by the Corporation against all Expenses and Liabilities incurred or paid by Indemnitee in connection with such Proceeding (referred to herein as “Indemnifiable Expenses” and “Indemnifiable Liabilities,” respectively, and collectively as “Indemnifiable Amounts”) if (i) Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, or arising in part out of) an Indemnifiable Eventnot opposed to, the Company shall indemnify best interests of the Corporation, and (ii) with respect to any criminal action or proceeding, Indemnitee had no reasonable cause to believe that Indemnitee’s conduct was unlawful.
(b) Subject to the fullest extent permitted exceptions contained in Section 4 below, if Indemnitee was or is a party or is threatened to be made a party to any Proceeding by lawor in the right of the Corporation to procure a judgment in its favor by reason of Indemnitee’s Corporate Status, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to Indemnitee shall be indemnified by the Company, Corporation against any and all Expenses, judgments, fines, penalties Indemnifiable Expenses and amounts paid in settlement (including all interestif Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, assessments and other charges paid or payable in connection with or not opposed to, the best interests of the Corporation, except that no indemnification shall be made under this subsection in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged by a court of competent jurisdiction that Indemnitee is liable to the Corporation, unless, and only to the extent that, the court in which such ExpensesProceeding was brought or another court of competent jurisdiction determines upon application that in view of all the circumstances of the case, judgments, fines, penalties or that Indemnitee is fairly and reasonably entitled to indemnity for such Indemnifiable Expenses and amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, then Indemnitee shall not be entitled to indemnification pursuant payment in such amount as such court deems proper.
(c) If Indemnitee, in connection with Indemnitee’s Corporate Status, is compelled or asked to this Agreement be a witness in connection with any Proceeding initiated by Indemnitee against the Company but is not otherwise a party or any director or officer of the Company unless the Company has joined in or consented threatened to the initiation of be made a party to such Proceeding. If so requested by Indemnitee, the Company Indemnitee shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by lawCorporation against all Indemnifiable Expenses.
(bd) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to exceptions listed in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law4 below, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that Indemnitee has been successful on the Reviewing Party determines that merits or otherwise in defense of any Proceeding referred to in subsections 3(a) or 3(b), or in defense of any claim, issue, or matter therein, Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed indemnified by the Corporation against Indemnifiable Expenses actually and reasonably incurred by Indemnitee in connection therewith.
(who hereby agrees e) If Indemnitee is entitled under any provisions of this Agreement to reimburse indemnification by the Company) Corporation for all such amounts theretofore paid; providedsome or a portion of Indemnifiable Amounts but not, however, that if for the total amount thereof, the Corporation shall nevertheless indemnify Indemnitee has commenced legal proceedings in a court for the portion of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as such Indemnifiable Amounts to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteeentitled.
Appears in 1 contract
Sources: Indemnification Agreement (Sba Communications Corp)
Agreement to Indemnify. (a) In Subject to Section 2 hereof and except as provided in subsection 1(b) below, the event Corporation shall indemnify the Indemnitee wasagainst expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the Indemnitee in connection with any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and whether formal or informal ("Proceeding"), including any appeal therefrom, in which the Indemnitee was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to because he is or witness was an officer [AND/OR A DIRECTOR] of the Corporation or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other participant inenterprise if (i) the Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, a and (ii) with respect to any criminal Proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any Proceeding by reason judgment, order, settlement, conviction or upon a plea of (nolo contendere or arising its equivalent, shall not, of itself, create a presumption that the Indemnitee did not act in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee good faith and in a manner which he reasonably believed to be in or not opposed to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result best interests of the actual or deemed receipt of Corporation, or, with respect to any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such criminal Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only Indemnitee had reasonable cause to the extent permitted by lawbelieve that his conduct was unlawful.
(b) Notwithstanding anything to the foregoingcontrary set forth in subsection 1(a) above, (i) the obligations Corporation shall not be required to indemnify the Indemnitee in connection with any Proceeding by or in the right of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case Corporation in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted shall have been adjudged to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject liable to the condition that, if, when Corporation unless and only to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable lawcourt in which the Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Company shall be Indemnitee is fairly and reasonably entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all indemnity of such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a expenses which such court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteedeem proper.
Appears in 1 contract
Agreement to Indemnify. (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee Subject to the fullest extent permitted by lawconditions and provisions set forth in this Article VIII, as soon as practicable but in any event no later than Seller, George and John agree, upon xxx xapse xx xhe thirty (30) days day period after written demand Seller is presented notified in writing of such a demand, claim, action or cause of action, to indemnify, defend and hold harmless the Buyer from and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including reasonable attorney's fees, asserted against or imposed upon or incurred by the Buyer, as the case may be, directly or indirectly, in whole or in part, resulting from (i) all debts, liabilities and obligations, actual or alleged, arising at any time from or related to the Companyownership, against control or operation of the Assets or Business by Seller prior to Closing, (ii) sales taxes imposed upon Seller and arising out of the operation of the Businesses or with respect to Seller's ownership, use, control, operation or sale of the Assets, (iii) any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid obligation of Seller pertaining to interest on the shareholder loans whether directly to the shareholder advancing funds to Seller or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and to any federal, statestate or local tax authority, (iv) a breach of any covenant, or the inaccuracy in any respect of any representation or warranty, of Seller contained in or made pursuant to this Agreement and (v) all other liabilities for which the Buyer may become liable and which are covered by this indemnity, including, without limitation, all federal, state and local taxes applicable to the ownership, control or foreign taxes imposed operation of the Assets on and prior to the Indemnitee Closing Date and liabilities arising as a result of the actual calculation of same.
(b) Subject to the conditions and provisions of this Article VIII, Buyer agrees, upon the lapse of the thirty (30) day period after Buyer is notified in writing of such a demand, claim, action or deemed receipt cause of action, to indemnify, defend and hold harmless the Seller from and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, cost and expenses, including reasonable attorney fees, asserted against or imposed upon or incurred by the Seller, as the case may be, directly or indirectly, in whole or in part, resulting from (i) the failure of Buyer to pay any of the Assumed Liabilities (except as may be set forth in Section 1.2 above), (ii) a breach of any payments under covenant, or other inaccuracy in any respect of any representation or warranty, of Buyer contained in or made pursuant to this Agreement, including (iii) all other liabilities for which Seller may become liable and which are covered by this indemnity, including, without limitation, all federal, state and local taxes applicable to the creation ownership, control or operation of the Trust pursuant Assets after the Closing Date and liabilities arising as a result of the calculation of same.
(c) All of the adjustments, demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses to Section 4 hereof. Notwithstanding anything in this Agreement which a party may be entitled to the contrary and except as provided in Section 5, Indemnitee shall not recover or for which such party may be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall hereinafter be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) as the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee"Indemnification Claims".
Appears in 1 contract
Sources: Asset Purchase Agreement (Abatix Environmental Corp)
Agreement to Indemnify. (a) The Seller shall indemnify, defend, and hold harmless the Purchaser and its respective officers, directors, employees, representatives, agents, successors, and assigns (collectively, the “Indemnitees”) from, against, and in respect of any and all damages incurred by any Indemnitee arising out of or as a result of: (i) any inaccuracy or misrepresentation in or breach of any representation or warranty made by the Seller in this Agreement; (ii) any breach of any covenant or agreement made by the Seller in this Agreement; and/or (iii) any and all proceedings, judgments, decrees, awards, assessments, fees, and expenses incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnification.
(b) The Seller shall not be required to provide indemnification to any Indemnitee pursuant to Section 7.1(a) unless and until the aggregate amount of all damages incurred by all Indemnitees responsive to such Section exceeds Twenty Five Thousand Dollars ($25,000) (the “Deductible”), whereupon the Indemnitees shall be entitled to indemnification under such Section only with respect to damages in excess of such Deductible. The maximum aggregate monetary liability of the Seller to indemnify the Indemnitees under Section 7.1(a) shall not exceed the Purchase Price (the “Cap”) in the aggregate. Notwithstanding the foregoing, neither the Deductible nor the Cap shall apply to claims arising out of fraud, intentional misrepresentation, or gross negligence.
(c) If any third party notifies any Indemnitee with respect to any matter which may give rise to a claim for indemnification against the Seller under this Section 7, then the Indemnitee will notify the Seller thereof within thirty (30) days thereafter, such notice to state the nature and basis of any claim made by the third party; provided that, no delay on the part of the Indemnitee in notifying the Seller will relieve the Seller from any obligation hereunder unless, and then solely to the extent that, the Seller is demonstrably prejudiced thereby. In the event the Seller notify the Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than within thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or date the Indemnitee has given notice of the matter that the Seller will indemnify the Indemnitee in respect of such Expensesmatter, judgmentsthen the Seller may, finesby notice to the Indemnitee within such 30-day period, penalties or amounts paid in settlement) assume the defense of such Proceeding and any federal, state, local or foreign taxes imposed on matter. If the Indemnitee as a result of Seller assume the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation defense of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoingmatter, (i) the obligations Seller will defend the Indemnitee against the matter with counsel of Seller’s choice reasonably satisfactory to the Indemnitee, (ii) the Indemnitee may retain separate counsel at its sole cost and expense, and (iii) the Seller will not consent to the entry of a judgment or consent order with respect to the matter, or enter into any settlement, in each case which either (A) grants the plaintiff or claimant any form of relief other than monetary damages which will be satisfied by the Seller or (B) fails to include a provision whereby the plaintiff or claimant in the matter releases the Indemnitees from all liability with respect thereto, in either such case without the written consent of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party Indemnitee (which consent shall not have determined be unreasonably withheld or delayed). If the Seller has not assumed the defense of such matter, (in a written opinion, i) the Indemnitee may defend against the matter in any case in which the special, independent manner it reasonably may deem appropriate and with counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable lawof its choice, and (ii) the obligation Seller may retain separate counsel at its sole cost and expense. Notwithstanding anything to the contrary in the foregoing, if defendants in any action include any Indemnitee and Seller, and such Indemnitee shall have been advised by its counsel that there may be material legal defenses available to such Indemnitee inconsistent with those available to Seller, or if a conflict of interest exists between an Indemnitee and Seller with respect to such claim or the defense thereof, or if an Indemnitee reasonably determines that Seller’s control of such defense would reasonably be expected to have an adverse effect on the Assets or the outcome of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition thatmatter, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable lawthen in any such case, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation reassert such defense through its own counsel, and in any court such event (or in the States event that the Seller does not timely assume or diligently pursue the defense of California such matter as provided above) the reasonable fees and expenses of the Indemnitee’s counsel shall be borne by the Seller and shall be paid by them from time to time within twenty (20) days of receipt of appropriate invoices therefore.
(d) In the event that an Indemnitee notifies the Seller of any claim for indemnification hereunder that does not involve a third party claim, the Seller shall, within thirty (30) days after the date of such notice, pay to the Indemnitee the amount of damages payable pursuant to this Section 7.1 and shall thereafter pay any other damages payable pursuant to this Section 7.1 and arising out of the same matter on demand, unless the Seller dispute in writing its liability for, or Delaware having subject matter jurisdiction thereof and the amount of, any such damages within such 30-day period, in which venue is proper seeking an initial determination by the court or challenging any case such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise payment shall be conclusive made as provided above in respect of any matters or amounts not so disputed and binding any damages in respect of the matters so disputed shall be paid within five (5) business days after any determination (by agreement of Purchaser and Seller, or pursuant to arbitration in accordance with Section 8.3) that the Seller are liable therefore pursuant to this Section 7.1.
(e) In connection with any payment of damages pursuant to this Section 7.1, the Seller shall pay to the Indemnitee(s) an amount calculated like interest on the Company and Indemniteeamount of such damages at the applicable interest rate from the date of Closing until the Indemnitee(s) shall have been indemnified in respect thereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Emerging Media Holdings Inc)
Agreement to Indemnify. 11.2.1 Any one or more of the Principals (acollectively, "Indemnified Persons") In seeking indemnification hereunder shall give prompt written notification to Retek (the event Indemnitee was"Indemnification Representative") of the commencement ------------------------------ of any action, is suit or becomes proceeding relating to a third party claim for which indemnification pursuant to this Section 11 may be sought; provided, however, ---------- that no delay on the part of the Indemnified Person in providing such notice shall relieve Retek of any liability or witness obligation hereunder except to the extent of any damage or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding liability caused by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty of such failure. Within twenty (3020) days after delivery of such notification, the Indemnification Representative may, upon written demand is presented notice thereof to the CompanyIndemnified Person, against assume control of the defense of such action, suit or proceeding with counsel reasonably satisfactory to the Indemnified Person, provided that the Indemnification Representative acknowledges in writing to the Indemnified Person that any and all Expenses, judgmentsdamages, fines, penalties and amounts paid in settlement (including all interest, assessments and costs or other charges paid or payable liabilities that may be assessed against the Indemnified Person in connection with such action, suit or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on proceeding constitute Damages for which the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee Indemnified Person shall not be entitled to indemnification pursuant to this Agreement in connection Section 11. If the Indemnification ----------- Representative does not so assume control of such defense, the Indemnified Person shall control such defense. The party not controlling such defense may participate therein at its own expense; provided that if the Indemnification Representative assumes control of such defense and the Indemnified Person reasonably concludes that the indemnifying parties and the Indemnified Person have conflicting interests or different defenses available with any Proceeding initiated by Indemnitee against respect to such action, suit or proceeding, the Company or any director or officer reasonable fees and expenses of counsel to the Indemnified Person shall be considered "Damage" for purposes of this Agreement. The party controlling such defense shall keep the other party advised of the Company unless the Company has joined in or consented to the initiation status of such Proceeding. If so requested by Indemniteeaction, suit or proceeding and the Company defense thereof and shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (consider in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination good faith recommendations made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law other party with respect thereto. The Indemnified Person shall not be binding and Indemnitee shall not be required agree to reimburse any settlement of such action, suit or proceeding without the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority prior written consent of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeIndemnification Representative.
Appears in 1 contract
Agreement to Indemnify. Subject always to the provisions of this Agreement, the Articles, the Companies Law and all other applicable laws, the Company hereby agrees to hold harmless and indemnify the Indemnitee against all Expenses and Liabilities properly incurred or paid by the Indemnitee by reason of the Indemnitee’s Position to the fullest extent permitted by Article 77 of the Companies Law, as amended, and any other applicable law. In furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a) In Subject to the event exceptions contained in Section 4, Section 6 and Section 8 below, if the Indemnitee was, was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness participant in any Proceeding (other than an action by or other participant in, a Proceeding in the right of the Company) by reason of (or arising in part out of) an Indemnifiable Eventthe Indemnitee’s Position, the Indemnitee shall be indemnified and held harmless by the Company shall indemnify against all Expenses and Liabilities properly incurred or paid by the Indemnitee to or on the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable Indemnitee’s behalf in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding (referred to herein as “Indemnifiable Expenses” and any federal“Indemnifiable Liabilities,” respectively, state, local or foreign taxes imposed on the Indemnitee and collectively as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"“Indemnifiable Amounts”); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject Subject to the condition that exceptions contained in Section 4, Section 6 and Section 8 below, if the Reviewing Party shall not have determined (in Indemnitee was or is, or is threatened to be made, a written opinion, party to or participant in any case Proceeding by or in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation right of the Company to make an Expense Advance pursuant to Section 2(a) procure a judgment in its favor by reason of the Indemnitee’s Position, the Indemnitee shall be indemnified and held harmless by the Company against all Indemnifiable Expenses.
(c) In addition to, and without regard to any limitations on, the indemnification provided for in Sections 3(a) and (b) but subject to the condition thatexceptions contained in Section 4, Section 6 and Section 8 below, the Indemnitee shall be indemnified and held harmless by the Company against all Indemnifiable Amounts if, when and to by reason of the extent that Indemnitee’s Position, the Reviewing Party determines that Indemnitee would not be permitted is, or is threatened to be so indemnified under applicable lawmade, a party to or participant in any Proceeding (including a Proceeding by or in the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse right of the Company) for all such amounts theretofore paid; provided, however, provided that if in no circumstances shall the Company be obligated to make any payment to the Indemnitee has commenced that it is advised by its legal proceedings in a court advisers would be unlawful under the laws of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made Jersey or is prohibited by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeArticles.
Appears in 1 contract
Agreement to Indemnify. (a) In Subject to the event Indemnitee wasterms and conditions of Sections 5.10, is 5.11 and 5.12, Seller and Parent hereby agree to indemnify, defend and hold harmless Purchaser and any parent, subsidiary (including without limitation, the Subject Company from and after the Closing Date) or becomes a party Affiliate of any thereof and their respective officers and directors, agents and representatives and Persons claiming by and through any of them (the "PURCHASER GROUP"), for, from and against all demands, claims, actions, causes of action, assessments, losses, damages, liabilities, costs and expenses, including, without limitation, interest, penalties and reasonable attorneys' fees and expenses (collectively, "DAMAGES"), directly or indirectly asserted against, resulting to, imposed upon or incurred by the Purchaser Group or any member thereof, at any time prior to or witness or other participant inthe Expiration Date, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of or resulting from (i) any breach of or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but inaccuracy in any event no later representation or warranty of Seller contained in or made pursuant to this Agreement (other than thirty Tax Representations, which are addressed in Section 4.2(a)) or any other agreement or document executed in connection herewith, (30ii) days after written demand is presented any breach of or failure by Seller to the Companyperform any covenant of Seller contemplated in this Agreement) or any other agreement or document executed in connection herewith, against (iii) any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed Proceedings pending on the Indemnitee as a result Closing Date or (iv) the matters set forth in Section 2.8 of the actual or deemed receipt of any payments under this AgreementSeller Disclosure Schedule (collectively, including the creation of the Trust pursuant to Section 4 hereof"PURCHASER CLAIMS"). Notwithstanding anything in this Agreement subparagraph (a)(i) above or Section 4.2(a), and subject to the contrary and except as provided in Section 5Seller's performance of its covenants under subparagraph (c) below, Indemnitee Purchaser shall not be entitled to indemnification collect any payment from Seller or Parent hereunder on account of any Purchaser Claim based upon a breach or inaccuracy of a representation or warranty by Seller to the extent, and only to the extent, that (A) Seller or Parent reasonably demonstrates that Purchaser's designee to the board of Seller had actual knowledge of such breach or inaccuracy on or before the Closing Date or (B) Seller or Parent reasonably demonstrates that (w) the breach or inaccuracy in any representation or warranty of Seller contained in or made pursuant to this Agreement (including Tax Representations addressed in connection with any Proceeding initiated by Indemnitee against Section 4.2(a)) was based wholly upon events or circumstances occurring or existing on or before the Company date Seller first acquired the Subject Company, (x) Seller's Management Employees were unaware of such events or any director or officer circumstances as of the Company unless date Seller first acquired the Company has joined in or consented to the initiation Subject Company, and (y) Seller's Management Employees were unaware of such Proceeding. If so requested by Indemnitee, events or circumstances as of the Company shall advance, within ten date of this Agreement (10) business days of such request, any and all Expenses referred to Indemnitee (an herein as a "Expense AdvanceSELLER'S PASS-THROUGH CLAIM"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding Subject to the foregoingterms and conditions of Sections 5.10, 5.11 and 5.12, Purchaser hereby agrees to indemnify, defend and hold harmless Seller and any parent, subsidiary or Affiliate of any thereof and their respective officers and directors, agents and representatives and Persons claiming by and through any of them (the "SELLER GROUP"), from and against all Damages, directly or indirectly asserted against, resulting to, imposed upon or incurred by the Seller Group or any member thereof, at any time before prior to the Expiration Date, by reason of or resulting from (i) any breach of any representation or warranty of Purchaser contained in or made pursuant to this Agreement or any other agreement or document executed in connection herewith, (ii) any breach of or failure by Purchaser to perform any covenant or obligation of Purchaser contemplated in this Agreement, or (iii) the obligations conduct of the operations of the Subject Company from and after the Closing (collectively, "SELLER CLAIMS," and, together with Purchaser Claims, "CLAIMS").
(c) With respect to any Purchaser's Claim that Seller believes or asserts is a Seller's Pass-Through Claim, Seller shall promptly notify Purchaser of same and promptly deliver such notice or take such other actions in accordance with the applicable provisions of the agreement or agreements pursuant to which Seller acquired the Subject Company necessary or desirable preserve or protect any and all rights Seller may have against any Person from whom Seller might be reasonably entitled to recover on account of such claim. Purchaser shall, at its own expense, have the right to employ counsel of its own choosing to prosecute Seller's claim against such Persons and generally to control all aspects of such claim. Seller shall cooperate with all reasonable requests of Purchaser or its representatives in connection with efforts to collect on such claim, including, without limitation, making available to Purchaser and its representatives all records and other material reasonably requested by Purchaser which is under Section 2(a) the control of, or otherwise available to, Seller. Seller shall, at Seller's expense, upon reasonable request, make available to Purchaser and its representatives Seller's personnel possessing information pertinent to such claim. The proceeds, if any, of any recovery on account of such Seller's Pass-Through Claim shall be subject for the benefit of, and be paid over to, Purchaser.
(d) Any indemnification hereunder shall be calculated after deduction of (i) any amounts actually paid to the condition that Indemnified Party or, if such Indemnified Party is Purchaser, to the Reviewing Subject Company or Purchaser, under any insurance policies in respect of the Damages, net of any costs incurred by the Indemnified Party shall not have determined (in to obtain such amount or as a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, result of receiving such amount; and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject any net tax benefit to the condition thatIndemnified Party, if, when and to or in the extent that event the Reviewing Indemnified Party determines that Indemnitee would not be permitted to be so indemnified under applicable lawis the Subject Company, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Subject Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted actually realized by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteeparty.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nevada Gold & Casinos Inc)
Agreement to Indemnify. Subject to the terms and conditions of, and in accordance with the procedures set forth in, this Agreement, the Company shall hold Indemnitee harmless and indemnify Indemnitee (aand Indemnitee’s spouse as provided below), to the fullest extent permitted by the provisions of the DGCL and other applicable law, from and against all Expenses and Liabilities, including, without limitation, Expenses and Liabilities arising from any Proceeding brought by or in the right of the Company or its stockholders. The Company and Indemnitee intend that this Agreement provide for indemnification in excess of that expressly required or permitted by statute, including, without limitation, any indemnification provided by the Company’s Certificate of Incorporation or Bylaws, by vote of its stockholders or directors, or by applicable law. If, after the date hereof, the DGCL or any other applicable law is amended to permit or authorize indemnification of, or advancement of defense expenses to, Indemnitee to a greater extent than is permitted on the date hereof, references in this Agreement to the DGCL or any other applicable law shall be deemed to refer to the DGCL or such applicable law as so amended. If (i) In the event Indemnitee was, is or becomes a party to was affiliated with one or witness or other participant inmore venture capital funds that has invested in the Company (an “Appointing Stockholder”), (ii) the Appointing Stockholder is, or is threatened to be made made, a party to or witness or other a participant inin any proceeding, a Proceeding by reason of and (or arising iii) the Appointing Stockholder’s involvement in part out of) an Indemnifiable Event, the proceeding is related to Indemnitee’s service to the Company shall indemnify Indemnitee to as an officer of the fullest extent permitted by law, as soon as practicable but in Company or any event no later than thirty (30) days after written demand is presented to direct or indirect subsidiaries of the Company, against then, to the extent resulting from any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed claim based on the Indemnitee Indemnitee’s service to the Company as a result an officer or other fiduciary of the actual or deemed receipt of any payments under this AgreementCompany, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not Appointing Stockholder will be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented hereunder for Expenses to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the same extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Sources: Indemnification Agreement (Synageva Biopharma Corp)
Agreement to Indemnify. (a) In From and after the event Indemnitee wasClosing, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company Seller shall indemnify Indemnitee and hold harmless Buyer and its Affiliates (including the Group Companies), and each of their respective officers, directors, employees, members, stockholders, partners, agents and representatives (each hereinafter referred to the fullest extent permitted by law, individually as soon an “Buyer Indemnified Person” and collectively as practicable but in any event no later than thirty (30“Buyer Indemnified Persons”) days after written demand is presented to the Company, from and against any and all Expensesdamages, judgments, finessettlements, penalties losses, liabilities, fees, reductions in value, costs, taxes, payments, penalties, interest, fines and amounts paid in settlement expenses (including all interestcosts of investigation, assessments defense and settlement, reasonable attorneys’ fees and other charges paid professionals’ and experts’ fees, and court, arbitrator or payable mediator costs (including such fees and costs incurred in connection with enforcing the provisions of this Article 12)) (hereinafter collectively referred to as “Damages”) based upon, relating to, arising out of or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and resulting from any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual following (the “Buyer Indemnifiable Matters”): (i) any breach or deemed receipt inaccuracy of any payments under representation or warranty made by Seller in this Agreement, including the creation Seller Disclosure Letter or the Seller Closing Certificates (in each case, except with respect to Section 3.11(a), without giving effect to any qualifications relating to materiality, material adverse effect or Material Adverse Effect for the purposes of determining the amount of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to Damages that are the contrary and except as provided in Section 5subject matter of a claim for indemnification thereunder, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that the operation of this parenthetical shall not alter the meaning of the defined terms such Expenses shall be advanced only upon delivery as “Company Material Contract” to “Company Contract” or “Material Adverse Effect” to “Effect” for such purposes); (ii) any breach of or default in connection with any of the covenants or agreements made by Seller in this Agreement; (iii) Excluded Taxes; (iv) any Change in Control Payments or Tax Liabilities in respect of the Change in Control Agreements, to the extent unpaid as of the Closing, (v) any Liabilities relating to or arising out of any “excess parachute payments” within the meaning of Section 280G of the Code, (vi) any matter set forth on Schedule 3.7 of the Company Disclosure Letter or that is or would be an exception to the representations and warranties made in Section 3.7 (Litigation) as of an undertaking the Agreement Date or the Closing Date; (vii) Unpaid Transaction Expenses, (viii) any error or inaccuracy in the Company Closing Financial Certificate; and (ix) any fraud, intentional misrepresentation or Willful Breach by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by lawSeller.
(b) Notwithstanding From and after the foregoingClosing, Buyer shall indemnify and hold harmless Seller and its Affiliates, and each of their respective officers, directors, employees, members, stockholders, partners, agents and representatives (each hereinafter referred to individually as a “Seller Indemnified Person” and collectively as “Seller Indemnified Persons”) from and against any and all Damages based upon, relating to, arising out of or resulting from any of the following (the “Seller Indemnifiable Matters” and, together with the Buyer Indemnifiable Matters, the “Indemnifiable Matters”): (i) breach or inaccuracy of any representation or warranty made by Buyer in this Agreement or the obligations Buyer Closing Certificates (without giving effect to any qualifications relating to materiality, material adverse effect or Material Adverse Effect for the purposes of determining the amount of the Company under Section 2(a) shall be Damages that are the subject to the condition that the Reviewing Party shall not have determined (in matter of a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) claim for all such amounts theretofore paid; indemnification thereunder provided, however, that if Indemnitee has commenced legal proceedings the operation of this parenthetical shall not turn references to “Material Adverse Effect” to “Effect” for such purposes), (ii) any breach of or default in a court connection with any of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination the covenants or agreements made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding Buyer in this Agreement; and Indemnitee shall not be required to reimburse the Company for (iii) any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights fraud, intentional misrepresentation or Willful Breach by or on behalf of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeBuyer.
Appears in 1 contract
Sources: Share Purchase Agreement (Exar Corp)
Agreement to Indemnify. The Corporation agrees to indemnify Indemnitee as follows:
(a) In Subject to the event exceptions contained in Section 4 below, if Indemnitee was, was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to any Proceeding (other than an action by or witness or other participant in, a Proceeding in the right of the Corporation) by reason of Indemnitee's Corporate Status, Indemnitee shall be indemnified by the Corporation against all Expenses and Liabilities incurred or paid by Indemnitee in connection with such Proceeding (referred to herein as "Indemnifiable Expenses" and "Indemnifiable Liabilities," respectively, and collectively as "Indemnifiable Amounts") if (i) Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, or arising in part out of) an Indemnifiable Eventnot opposed to, the Company shall indemnify best interests of the Corporation, and (ii) with respect to any criminal action or proceeding, Indemnitee had no reasonable cause to believe that Indemnitee's conduct was unlawful.
(b) Subject to the fullest extent permitted exceptions contained in Section 4 below, if Indemnitee was or is a party or is threatened to be made a party to any Proceeding by lawor in the right of the Corporation to procure a judgment in its favor by reason of Indemnitee's Corporate Status, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to Indemnitee shall be indemnified by the Company, Corporation against any and all Expenses, judgments, fines, penalties Indemnifiable Expenses and amounts paid in settlement (including all interestif Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, assessments and other charges paid or payable in connection with or not opposed to, the best interests of the Corporation, except that no indemnification shall be made under this subsection in respect of such Expensesany claim, judgments, fines, penalties issue or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee matter as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, which Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated have been adjudged by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure be liable to the Corporation, unless, and only to the extent that, the court in which such Proceeding was brought or another court of competent jurisdiction determines upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Indemnifiable Expenses and amounts paid in settlement, in which case Indemnitee shall then be entitled to payment in such amount as such court deems proper.
(c) If Indemnitee, in connection with Indemnitee's Corporate Status, is compelled or asked to be a determination that witness in connection with any Proceeding but is not otherwise a party or threatened to be made a party to such Proceeding, Indemnitee should shall be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse Corporation against all Indemnifiable Expenses.
(d) Notwithstanding the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereonexceptions listed in Section 4 below, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there that Indemnitee has been such a Change successful on the merits or otherwise in Control, other than a Change in Control which has been approved by a majority defense of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel any Proceeding referred to in Section 3 hereof. If there has been no determination by the Reviewing Party subsections 3(a) or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole 3(b), or in part under applicable lawdefense of any claim, issue, or matter therein, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination be indemnified by the court or challenging Corporation against Indemnifiable Expenses actually and reasonably incurred by Indemnitee in connection therewith.
(e) If Indemnitee is entitled under any such determination provisions of this Agreement to indemnification by the Reviewing Party Corporation for some or any aspect a portion of Indemnifiable Amounts but not, however, for the total amount thereof, and the Company hereby consents Corporation shall nevertheless indemnify Indemnitee for the portion of such Indemnifiable Amounts to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteewhich Indemnitee is entitled.
Appears in 1 contract
Agreement to Indemnify. (a) In Each Selling Entity shall hold harmless, ---------------------- indemnify and defend Apple, its affiliates, successors and assigns (the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company"Apple Indemnified Parties"), against any and all Expensesobligations, judgmentsclaims, fineslosses, penalties damages, liabilities and amounts paid in settlement expenses (including all interestincluding, assessments without limitation, reasonable attorneys' fees and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlementlegal expenses and other charges) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result (all of the actual foregoing being referred to below in this Agreement as "Claims"), but specifically excluding any claims, losses, damages, liabilities and expenses related or deemed receipt connected to, in any way, the payment of any payments under this Agreement, including the creation of the Trust obligations pursuant to Section 4 hereof. Notwithstanding anything in this Agreement 5.03 of the Management Agreement, arising out of the breach by such Selling Entity (or, with respect to the contrary indemnity obligations of the General Partner, a breach by the Company or the Controlling Partnership) of its representations and except warranties under the Original Agreement, as provided in Section 5amended and affected by the First Amendment (and CCRI and Desert Springs shall be jointly and severally liable with the General Partner for breaches of representations and warranties by the General Partner with respect to the Inns, Indemnitee the Company or the Controlling Partnership); Crestline shall not be entitled to indemnification pursuant to this Agreement in connection with hold harmless and indemnify the Apple Indemnified Parties against (i) all Claims brought by Crestline or any Proceeding initiated of its affiliates, or by Indemnitee any pre-Closing managers and officers of the Company or the Controlling Partnership, against the Company or any director the Controlling Partnership, as applicable, to the extent relating to the period prior to the Closing, (ii) all Claims arising out of or officer relating to the Residence Inn located in Raleigh, North Carolina, which was formerly owned by the Controlling Partnership and (iii) all Claims relating to the matters disclosed in Section 6.5 hereof. The General Partner hereby assumes the indemnity agreements made by the Company and/or the Controlling Partnership in Section 11.3 of the Company unless Original Agreement, as amended and affected by the Company has joined First Amendment (which is unaffected by this Agreement), and Apple agrees that the indemnification agreements made by it for the benefit of the Controlling Partnership in that Section 11.3 shall instead be for the benefit of the Selling Entities. The Selling Entities' indemnity obligations hereunder shall be primary obligations of each such Selling Entity, and Apple may proceed immediately against the Selling Entities without being required to bring any proceeding or consented to take any action against the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance")Company; provided, however, that no claim may be prosecuted by any party under this 11.3 -------- ------- (meaning both subsections (a) and (b) hereof), or under Section 11.3 of the Original Agreement, as affected hereby and by the First Amendment, unless written notice of such Expenses shall be advanced only upon delivery claim is delivered by the party seeking to prosecute such claim to the Company of an undertaking by party or on behalf of the Indemnitee to repay parties against whom such amount if it claim is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only prosecuted prior to the extent permitted by lawdate that is eighteen (18) months after the Closing Date.
(b) Notwithstanding In addition, and notwithstanding any provisions of this Agreement to the foregoingcontrary, (i) each Selling Entity shall hold harmless, indemnify and defend the obligations of Apple Indemnified Parties, against any and all Claims, connected with the Company under Section 2(a) shall be subject Controlling Interests owned by such Selling Entity to the condition that extent relating to the Reviewing Party shall not have determined (in a written opinion, in any case in period during which such Selling Entity owned the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, Controlling Interests; and (ii) Apple shall hold harmless, indemnify and defend the obligation of Selling Entities and their affiliates, successors and assigns, against any and all obligations, claims, losses, damages, liabilities, debts obligations and expenses (including, without limitation, reasonable attorneys' fees and other charges) connected with the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and Controlling Interests to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, relating to the extent permitted by law. If there has not been a Change in Control, period during which Apple (or its affiliates) owns the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeControlling Interests.
Appears in 1 contract
Agreement to Indemnify. (a) In the event Indemnitee wasThe Company will, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable law, as soon as practicable but in any event no later than thirty indemnify and hold harmless each Indemnified Person against all claims, liabilities and expenses of whatever nature (30“Claims”) days after written demand is presented relating to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable activities undertaken in connection with or in respect of such Expenses, judgments, fines, penalties relation to the Company or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and attorneys’, accountants’ and other professionals’ fees and expenses and all other expenses reasonably incurred in the creation defense, prosecution or preparation for the defense or prosecution of, or preparing to testify as a witness in connection with, any such Claim (all of such amounts covered by this Section 12.2 are referred to as “Losses”) imposed upon or reasonably incurred by such Indemnified Person in connection with the defense, prosecution or other disposition of any action, suit, arbitration or other proceeding (a “Proceeding”), whether civil, criminal, administrative or investigative, before any court, administrative body or arbitrator in which such Indemnified Person may be or may have been involved, as a party or otherwise, or with which such Indemnified Person may be or may have been threatened, except with respect to any matter as to which such Indemnified Person did not act in good faith and in the reasonable belief that such Indemnified Person’s action was in or not opposed to the best interests of the Trust pursuant to Section 4 hereofCompany or constituted gross negligence, intentional misconduct or fraud. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not No indemnification will be entitled to indemnification payable pursuant to this Agreement Section 12.2 to an Indemnified Person:
(i) against any liability incurred by reason of conduct that has been finally determined (without right to further appeal) to be Disabling Conduct by such Indemnified Person;
(ii) in connection with respect of any Proceeding initiated action by Indemnitee against or in the Company or any director or officer right of the Company unless the Company has joined in or consented against such Indemnified Person if such Indemnified Person is adjudged to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery liable to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances unless and only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party court in which such Proceeding was brought determines that Indemnitee would not be permitted to be so indemnified under applicable lawupon application that, despite the Company shall be adjudication of liability but in view of all the circumstances of the case, such Indemnified Person is fairly and reasonably entitled to be reimbursed indemnity for such expenses which such court or arbitrator deems proper; and
(iii) in respect of any Proceeding brought or maintained by Indemnitee (who hereby agrees to reimburse such Indemnified Person against the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of DirectorsManagers or any Member or such Member’s Affiliates. The termination of any Proceeding by judgment, order, settlement or conviction or upon a plea of nolo contendere or its equivalent will not, of itself, create a presumption that such Indemnified Person was guilty of Disabling Conduct or that such Person did not act in good faith, and if there has been in a manner such a Change Indemnified Person reasonably believed to be in Control, other than a Change in Control which has been approved by a majority or not opposed to the best interests of the Company's Board of Directors who were directors immediately prior Company or that such Indemnified Person had reasonable cause to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines believe that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteeits conduct was unlawful.
Appears in 1 contract
Agreement to Indemnify. (a) In Subject to Section 4 hereof and except as otherwise provided in this Agreement, the event Corporation shall indemnify and hold harmless the Indemnitee was(i) against any reasonable expenses (including attorneys' fees) in advance of the final disposition of any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and whether civil, criminal, administrative or investigative ("Proceeding"), without requiring a determination of the ultimate entitlement to indemnification, or (ii) against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the Indemnitee in connection with any Proceeding in which the Indemnitee was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to because he is or witness was an officer and/or a director of the Corporation or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other participant inenterprise unless it is established that (a) the act or omission of the Indemnitee was material to the matter giving rise to the Proceeding and (x) was committed in bad faith or (y) was the result of active or deliberate dishonesty; (b) the Indemnitee actually received an improper personal benefit in money, property, or services; or (c) in the case of a Proceeding by reason of (or arising in part out of) an Indemnifiable Eventcriminal proceeding, the Company shall indemnify Indemnitee had reasonable cause to believe that the fullest extent permitted act or omission was unlawful. If the Proceeding is one by lawor in the right of the Corporation, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or indemnification may not be made in respect of such Expenses, judgments, fines, penalties or amounts paid any Proceeding in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on which the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant shall have been adjudged to Section 4 hereof. Notwithstanding anything in this Agreement be liable to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by lawCorporation.
(b) Notwithstanding The termination of any Proceeding by judgment, order, or settlement does not create a presumption that the foregoingIndemnitee did not meet the requisite standard of conduct set forth in subsection 1(a) above. The termination of any Proceeding by conviction, or by plea of nolo contendre or its equivalent, or an entry of an order of probation prior to judgment, creates a rebuttable presumption that the Indemnitee did not meet the requisite standard of conduct.
(ic) the obligations of the Company An Indemnitee may not be indemnified under Section 2(a1(a) shall be subject in respect of any Proceeding charging improper personal benefit to the condition that Indemnitee, whether or not involving action in the Reviewing Party shall not have determined (in a written opinionIndemnitee's official capacity, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted was adjudged to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding liable on the Company and Indemniteebasis that personal benefit was improperly received.
Appears in 1 contract
Sources: Indemnification Agreement (Healthcare Financial Partners Reit Inc)
Agreement to Indemnify. (a) In Each Seller and the event Indemnitee wasStockholder hereby jointly and severally agree to indemnify, is defend and hold harmless Spectrum, Buyer and their respective Affiliates, and the directors, officers, employees and agents thereof (“Buyer Indemnitees”) from and against, and to reimburse Buyer Indemnitees, from, against and in respect of any and all Losses, asserted against or becomes a party to imposed upon or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding incurred by any of them:
(i) by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt breach of any payments under this Agreement, including representation or warranty of a Seller or the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything Stockholder contained in this Agreement to (including any Schedule or the contrary and except as provided Disclosure Schedules attached hereto);
(ii) by reason of the material breach of any covenant or agreement by a Seller or the Stockholder in Section 5, Indemnitee shall not be entitled to indemnification or pursuant to this Agreement (including any required payment by a Seller and the Stockholder of the Net Working Capital Adjustment);
(iii) arising from any Retained Liabilities;
(iv) resulting from or arising out of the parties’ failure to comply with bulk sales laws notwithstanding any waiver by the parties of such compliance therewith pursuant to this Agreement; or
(v) to the extent relating exclusively to any Environmental Claims or any environmental condition existing on or before the Closing Date, any failure or alleged failure to comply with any Environmental Laws on or before the Closing Date, or in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer Sellers’ operation of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, Business at any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by Facilities before the Company; provided further, that the Company shall make such advances only to the extent permitted by lawClosing Date.
(b) Notwithstanding Each of Spectrum and Buyer hereby jointly and severally agree to indemnify, defend and hold harmless each Seller, the foregoingStockholder and their respective Affiliates, and the directors, officers, employees and agents thereof (“Seller Indemnitees”) from and against, and to reimburse Seller Indemnitees, from, against and in respect of any and all Losses, asserted against or imposed upon or incurred by any of them:
(i) the obligations by reason of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined any breach of any representation or warranty of Spectrum or Buyer contained in this Agreement (in a written opinion, in including any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and Schedule attached hereto);
(ii) the obligation by reason of the Company to make an Expense Advance material breach of any covenant or agreement by Spectrum or Buyer in or pursuant to Section 2(athis Agreement (including any required payment by Spectrum or Buyer of the Net Working Capital Adjustment);
(iii) shall be subject arising from any Assumed Liabilities; or
(iv) relating to any environmental condition other than those existing before the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable lawClosing Date, any determination made by failure or alleged failure to comply with any Environmental Laws after the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made Closing Date, or in connection with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority Buyer’s operation of the Company's Board Business at any of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be Facilities after the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeClosing Date.
Appears in 1 contract
Agreement to Indemnify. (a) In Subject to the event Indemnitee waslimitations provided herein, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of Sellers shall jointly and severally indemnify and hold harmless the Buyer and its Affiliates (or arising in part out of) an Indemnifiable Eventcollectively, the Company shall indemnify Indemnitee “Buyer Indemnitees”) to the fullest extent permitted by law, as soon as practicable but set forth in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or this Article IX in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding any Losses reasonably and any federal, state, local or foreign taxes imposed on the Indemnitee proximately incurred by Buyer Indemnitees as a result of the actual (i) any inaccuracy or deemed receipt misrepresentation in any representation or warranty of MTC or Sellers made herein or any payments under this Agreementbreach of or failure to perform any covenant, including the creation agreement or obligation of the Trust pursuant to Section 4 hereof. Notwithstanding anything MTC or Sellers in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director agreement, document or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance")certificate delivered hereunder; provided, however, that Sellers shall have no liability on account of this Section 9.1(a)(i) with respect to any claim relating to any events, facts or circumstances of which the Buyer had Knowledge on or before the Closing Date (except in the case of any claim relating to any Taxes in which case Sellers shall have liability on account of this Section 9.1(a)(i) whether or not Buyer has Knowledge of any events, facts or circumstances with respect to such Expenses shall be advanced only upon delivery to the Company of an undertaking claim); (ii) any federal or state income Taxes incurred by MTC or its Subsidiaries caused by or on behalf resulting from the sale of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided furtherShares, that the Company shall make such advances only except to the extent permitted by lawsuch Taxes are accrued as a liability for purposes of calculating either the Closing Working Capital Value or Net Income Tax Liabilities as of the Closing Date; (iii) any Taxes imposed on or relating to MTC or any of its Subsidiaries for any Pre-Closing Period, except to the extent such Taxes are accrued as a liability for purposes of calculating either the Closing Working Capital Value or Net Income Tax Liabilities as of the Closing Date, and (iv) any Liabilities of MTC unrelated to its ownership of Oxy-Dry.
(b) Notwithstanding the foregoing, foregoing paragraph (a):
(i) the obligations of the Company Sellers shall not be liable under Section 2(a9.1(a)(i) for any Losses in respect of any claim (or group of directly related claims) subject to Section 9.1(a)(i) until all Losses in respect of all claims exceed One Hundred Thousand Dollars ($100,000) in the aggregate (the “Minimum Amount”), and thereafter Sellers shall be liable, subject to the condition that other limitations provided for elsewhere in this Agreement, for all Losses in excess of the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and Minimum Amount;
(ii) the obligation The aggregate liability of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) Sellers for all such amounts theretofore paid; providedLosses under this Agreement and any agreement, document or certificate delivered herewith and the Acquisition shall not exceed Two Million Dollars ($2,000,000) (the “Maximum Amount”), provided however, that if the liability of Sellers for Taxes, and for liabilities of MTC unrelated to its ownership of Oxy-Dry and for fraud shall be unlimited; and
(iii) Sellers shall have no liability to indemnify any Buyer Indemnitee has commenced legal proceedings for any Losses (other than in a court respect of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable lawTaxes, any determination made by Liabilities of MTC unrelated to its ownership of Oxy-Dry or fraud) (A) related to any liability that is specifically set forth (i) in the Reviewing Party calculation of Closing Working Capital Value or (ii) on the Financial Statements or the Reference Purchase Price Statement, (B) under Section 9.1(a)(i), if the Buyer had Knowledge that Indemnitee would the representations and warranties of MTC or Sellers in this Agreement were not be permitted true and correct prior to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereonClosing, to the extent arising as a result of any action taken or omitted to be taken by Buyer or any of its Affiliates, (C) under Section 9.1(a)(i), in respect of a breach of any representations and warranties, to the extent disclosed in the Seller Disclosure Schedule, (D) to the extent arising from a change in Law that becomes effective after the Closing Date or (E) arising or resulting from any action taken or omitted to be taken by the Buyer or any of its Affiliates after the Closing Date other than as contemplated or permitted by law. If there has not been a Change in Controlthis Agreement.
(c) Buyer shall indemnify and hold harmless Sellers and their respective Affiliates (collectively the “Seller Indemnitees” and, together with the Buyer Indemnitees, the Reviewing Party shall be selected “Indemnitees”) to the extent set forth in this Article IX in respect of any and all Losses reasonably and proximately incurred by any Seller Indemnitee: (i) as a result of any inaccuracy or misrepresentation in any representation or warranty of the Board Buyer made herein or any breach of Directorsor failure to perform any covenant, agreement or obligation of the Buyer in this Agreement or any agreement, document or certificate delivered hereunder; or (ii) as a result of liabilities of MTC and if there has been such a Change its Subsidiaries, including liabilities arising from matters, facts and circumstances set forth in Controlthe Seller Disclosure Schedule to Article IV hereof, other than a Change (x) Tax liabilities of MTC or any of its Subsidiaries arising from any Pre-Closing Period, (y) liabilities of MTC unrelated to its ownership of Oxy-Dry or (z) liabilities in Control respect of which has been approved by a majority Sellers are obligated to indemnify and hold harmless Buyer Indemnitees pursuant to Section 9.1(a).
(d) Notwithstanding the foregoing paragraph (c):
(i) Buyer shall not be liable under Section 9.1(c)(i) for any Losses in respect of any claim (or group of directly related claims) subject to Section 9.1(c)(i) until all Losses in respect of all claims exceed One Hundred Thousand Dollars ($100,000) in the aggregate (the “Minimum Amount”), and thereafter Buyer shall be liable, subject to the other limitations provided for elsewhere in this Agreement, for all Losses in excess of the Company's Board Minimum Amount; and
(ii) The aggregate liability of Directors who were directors immediately prior to such Change in ControlBuyer for all Losses under this Agreement and any agreement, document or certificate delivered herewith and the Reviewing Party Acquisition shall not exceed Two Million Dollars ($2,000,000) (the “Maximum Amount”); provided however, that the liability of Buyer for fraud shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemniteeunlimited.
Appears in 1 contract
Sources: Stock Purchase Agreement (Baldwin Technology Co Inc)
Agreement to Indemnify. Each Effective Time Holder shall severally (abased on each such holder’s Pro Rata Share), and not jointly, indemnify and hold harmless Parent and its Subsidiaries, their respective officers, directors, employees, agents and representatives (each hereinafter referred to individually as an “Parent Indemnified Person” and collectively as “Parent Indemnified Persons”) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, from and against any and all Expensesdamages, judgmentslosses, finescosts, penalties and amounts paid in settlement expenses (including all interestreasonable attorneys’ fees, assessments other professionals’ and other charges experts’ fees, costs of investigation and court costs (including such fees and costs incurred in connection with enforcing the provisions of this Article 11)) (hereinafter collectively referred to as “Damages”), arising out of or resulting from the following (the “Indemnifiable Matters”): (a) any failure of any representation or warranty made by the Company in this Agreement, the Company Disclosure Letter or the Company Closing Certificates to be true and correct as of the date of this Agreement (in the case of any such representation or warranty contained in this Agreement or the Company Disclosure Letter only) and as of the Closing Date (as though such representation or warranty were made as of the Closing Date, except in the case of representations and warranties which by their terms speak only as of a specific date or dates, in which case such representations and warranties shall be true and correct on and as of such specified date or dates); (b) any breach of or default in connection with any of the covenants or agreements made by the Company in this Agreement to be performed prior to the Closing; (c) any Dissenting Shares Excess Payments; (d) any Fraud by the Company under this Agreement; (e) any Company Merger Expenses or Company Closing Debt, in each case, to the extent not paid at the Closing or otherwise accounted for pursuant to Section 2.4; (f) any benefit payable by the Company or the Surviving Corporation as a result of, in connection with or arising under this Agreement that constitutes a “parachute payment” (as defined in respect of such Expenses, judgments, fines, penalties or amounts paid in settlementSection 280G(b)(2) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10Code) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition imposition of an excise tax under Section 4999 of the Code or that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation deductible by reason of Section 280G of the Company to make an Expense Advance pursuant to Section 2(aCode; or (g) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court any Taxes of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights Tax period ending on or before the Closing Date, including the allocable portion of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse any Tax period of the Company for Expense Advances shall be unsecured and no interest shall be charged thereonthat contains, to the extent permitted by law. If there has but does not been a Change in Controlend on, the Reviewing Party shall be selected by the Board of Directors, Closing Date (and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court otherwise accounted for in the States calculation of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and IndemniteeNet Working Capital).
Appears in 1 contract
Agreement to Indemnify. (a) In Subject to the event Indemnitee waslimitations provided herein, is or becomes a party to or witness or other participant inATC and the direct and indirect subsidiaries of ATC (including Buyer and, or is threatened to be made a party to or witness or other participant inafter the Closing has occurred, a Proceeding by reason of Trans Mart) (or arising in part out of) an Indemnifiable Eventcollectively, the Company "Buyer Indemnitees") shall indemnify Indemnitee each be indemnified and held harmless to the fullest extent permitted set forth in this Article IX on a joint and several basis by lawShareholders in respect of any Damages reasonably and proximately incurred by any Buyer Indemnitee (i) as a result of any inaccuracy or misrepresentation in or breach of or failure to perform any representation, as soon as practicable but warranty, covenant, agreement or obligation of Trans Mart or Shareholders in this Agreement or (ii) in connection with any event no later Environmental Liability other than thirty Excluded Environmental Liabilities. The aggregate liability of Shareholders collectively under this Section 9.01(a) of this Agreement shall not exceed the purchase price paid for the Shares pursuant to Section 2.02(b), except in the case of Damages due to Shareholders' fraud or willful misconduct.
(30b) days after written demand is presented Shareholders and their Affiliates (collectively the "Shareholder Indemnitees") shall each be indemnified and held harmless to the Company, against extent set forth in this Article IX on a joint and several basis by Buyer and ATC in respect of any and all Expenses, judgments, fines, penalties Damages reasonably and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and proximately incurred by any federal, state, local or foreign taxes imposed on the Shareholder Indemnitee as a result of the actual (i) any inaccuracy or deemed receipt misrepresentation in or breach of or failure to perform any payments under this Agreementrepresentation, including the creation warranty, covenant, agreement or obligation of the Trust pursuant to Section 4 hereof. Notwithstanding anything Buyer or ATC in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer (ii) Trans Mart's conduct of the Company unless Business after the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by lawClosing.
(bc) Notwithstanding the foregoing, Buyer Indemnitees may not seek indemnification hereunder from Shareholders unless and until the claims in the aggregate exceed $25,000, provided that if such threshold is exceeded, Buyer Indemnitees may seek indemnification hereunder for any and all claims.
(id) From and after the obligations Closing Date, Trans Mart shall have no liability to Shareholders for contribution or reimbursement due to, or other Damages arising out of, liability incurred by Shareholders pursuant to Section 9.01(a) notwithstanding that such liability may have arisen out of the Company under a misrepresentation or breach by Trans Mart.
(e) Any amounts payable pursuant to Section 2(a9.01(a) shall be subject to paid from the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel escrowed funds referred to in Section 3 hereof is involved8.03(c) that Indemnitee would not be permitted prior to be indemnified under applicable law, and (ii) the obligation of the Company Shareholders being required to make an Expense Advance pursuant any payments directly (unless such escrowed funds are not then available for payment due to Section 2(a) shall be subject to the condition thatinvestment, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted interpleader or have lapsedotherwise). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
Appears in 1 contract
Sources: Stock Purchase Agreement (Aftermarket Technology Corp)