Indemnification by Parent. (a) Parent shall indemnify and hold the Small World Shareholders and Small World's directors, officers and employees (collectively, the "Small World Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World Indemnified Parties from and reimburse each of the Small World Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively a "Small World Loss") that any of the Small World Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with: (i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreement, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof; (ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and materials delivered by Parent pursuant to this Agreement; and (iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.1. (b) Notwithstanding any other provision to the contrary Parent shall not have any liability under Section 8.1(a) above (i) unless the aggregate of all Small World Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 in the aggregate, and (iii) unless the Small World Shareholders have asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World Pequot Shareholders and Small WorldPequot's directors, officers and employees (collectively, the "Small World Pequot Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World Pequot Indemnified Parties from and reimburse each of the Small World Pequot Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, including reasonable attorney fees and other legal costs and expenses) (collectively collectively, a "Small World Pequot Loss") that any of the Small World Pequot Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreementhereto, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement hereunder or under any of the documents and materials delivered by Parent pursuant to this Agreementhereto; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.18.1(a).
(b) Notwithstanding any other provision hereof to the contrary contrary, Parent shall not have any liability under Section 8.1(a8.1(a)(i) above (i) unless the aggregate of all Small World Pequot Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000100,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 4,500,000 in the aggregate, and (iii) unless the Small World Pequot Shareholders have asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months the longer of (A) the applicable statute of limitations or (B) two years of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World Pequot Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World Shareholders stockholders of ICC, including the ICC Stockholders, and Small World's their respective stockholders, directors, officers and employees (collectively, the "Small World ICC Indemnified Parties") ), harmless from and against, and agree agrees promptly to defend each of the Small World ICC Indemnified Parties from and reimburse each of the Small World ICC Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, including reasonable attorney attorneys' fees and other legal costs and expenses) (collectively a collectively, an "Small World ICC Loss") that any of the Small World ICC Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant hereto or in or pursuant to this the Merger Agreement, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereofhereof or of the Merger Agreement;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement hereunder or under any of the documents and materials delivered by Parent pursuant hereto or to this the Merger Agreement; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.14.1(a).
(b) Notwithstanding any other provision hereof to the contrary contrary, Parent shall not have any liability under Section 8.1(a4.1(a)(i) above (or Section 4.1(a)(iii), to the extent arising from or based upon matters subject to Section 4.1(a)(i)) (i) unless the aggregate of all Small World ICC Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000100,000 ("Basket"), and then only to the extent of such excess, (ii) absent fraud, for amounts ICC Losses in excess of $2,250,000 10 million ("Cap") in the aggregate, and (iii) unless the Small World Shareholders ICC Indemnified Parties have asserted a claim with respect to the matters set forth in Section 8.1(a)(i4.1(a)(i), or 8.1(a)(iii4.1(a)(iii) to the extent applicable to Section 8.1(a)(i4.1(a)(i), within 18 25 months of the Effective TimeTime (as defined in the Merger Agreement), except with respect to the matters arising under Section 5.14, 5.15 or 5.16 of the Merger Agreement, in which event the ICC Indemnified Parties must have asserted a claim within the applicable statute of limitations. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World an ICC Loss, unless and then only to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i4.1(a)(i), (ii) or (iii) above).
Appears in 1 contract
Sources: Voting and Indemnity Agreement (Ixl Enterprises Inc)
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World Shareholders Exchange Place Shareholder and Small WorldExchange Place's directors, officers and employees (collectively, the "Small World Exchange Place Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World Exchange Place Indemnified Parties from and reimburse each of the Small World Exchange Place Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, including reasonable attorney fees and other legal costs and expenses) (collectively collectively, a "Small World Exchange Place Loss") that any of the Small World Exchange Place Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreementhereto, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement hereunder or under any of the documents and materials delivered by Parent pursuant to this Agreementhereto; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.18.1(a).
(b) Notwithstanding any other provision hereof to the contrary contrary, Parent shall not have any liability under Section 8.1(a8.1(a)(i) above (i) unless the aggregate of all Small World Exchange Place Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 2,750,000 in the aggregate, and (iii) unless the Small World Shareholders have Exchange Place Shareholder has asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months two years of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World Exchange Place Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World Digital Shareholders and Small WorldDigital's directors, officers and employees (collectively, the "Small World Digital Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World Digital Indemnified Parties from and reimburse each of the Small World Digital Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively a "Small World Digital Loss") that any of the Small World Digital Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreement, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and materials delivered by Parent pursuant to this Agreement; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.18.1(a).
(b) Notwithstanding any other provision to the contrary Parent shall not have any liability under Section 8.1(a8.1(a)(i) above (i) unless the aggregate of all Small World Digital Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000100,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 4,000,000 in the aggregate, and (iii) unless the Small World Digital Shareholders have asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months two years of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World Digital Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World Shareholders LMP Principals and Small WorldLMP's directors, officers and employees (collectively, the "Small World LMP Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World LMP Indemnified Parties from and reimburse each of the Small World LMP Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, including reasonable attorney fees and other legal costs and expenses) (collectively collectively, a "Small World LMP Loss") that any of the Small World LMP Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreementhereto, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement hereunder or under any of the documents and materials delivered by Parent pursuant to this Agreementhereto; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.18.1(a).
(b) Notwithstanding any other provision hereof to the contrary contrary, Parent shall not have any liability under Section 8.1(a8.1(a)(i) above (i) unless the aggregate of all Small World LMP Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000100,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 5,500,000 in the aggregate, and (iii) unless the Small World Shareholders LMP Principals have asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World LMP Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World Shareholders Ionix Shareholder and Small WorldIonix's directors, officers and employees (collectively, the "Small World Ionix Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World Ionix Indemnified Parties from and reimburse each of the Small World Ionix Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, including reasonable attorney fees and other legal costs and expenses) (collectively collectively, a "Small World Ionix Loss") that any of the Small World Ionix Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreementhereto, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement hereunder or under any of the documents and materials delivered by Parent pursuant to this Agreementhereto; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.18.1(a).
(b) Notwithstanding any other provision hereof to the contrary contrary, Parent shall not have any liability under Section 8.1(a)(i) above (or Section 8.1(a) above (iii) above, to the extent arising from or based upon matters subject to Section 8.1 (a) (i)) (i) unless the aggregate of all Small World Ionix Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000150,000, and then only to the extent of such excess, (ii) for amounts Ionix Losses in excess of the total Merger consideration payable (in any form, with shares of Parent Stock valued at $2,250,000 10 each) pursuant to Section 3.1 hereof ("Cap") in the aggregate, and (iii) unless the Small World Shareholders have Ionix Shareholder has asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months 30 days after the final completion, including Parent's receipt, of the Effective Timeaudit of Parent's financial statements for the year ending December 31, 1999. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World Ionix Loss, unless and then only to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) If the Closing occurs and subject to the terms and conditions of this Article 8, Parent shall indemnify indemnify, defend and hold the Small World Shareholders harmless Buyer, and Small World's its directors, officers officers, employees, affiliates and employees (collectivelycontrolling persons, the "Small World Indemnified Parties") harmless from and against all Losses asserted against, and agree promptly to defend each of the Small World Indemnified Parties from and reimburse each of the Small World Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively a "Small World Loss") that any of the Small World Indemnified Parties may at any time suffer or incur, or become subject resulting to, as a result imposed upon or incurred by any such person, directly or indirectly, by reason of or in connection with:
resulting from (i) any breach or inaccuracy of any of the representations and warranties made by of Parent; (ii) any breach of any covenant of Parent contained in this Agreement or Sub (iii) any Indemnified Liability. For the avoidance of doubt, Buyer and its directors, officers, employees, affiliates and controlling persons, shall not be entitled to recover Losses under any of clauses (i) or (ii) of this Section 8.1(a) to the extent Parent has an indemnification obligation under clause (iii) of this Section 8.1(a).
(b) Parent’s obligations under Section 8.1(a) shall be subject to the following limitations:
(i) Except as provided in or pursuant clause (ii) and clause (x) of this Section 8.1(b), Parent’s obligations under Section 8.1(a)(iii) with respect to Specified Liabilities shall not be subject to the limitations provided in this Agreement, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereofSection 8.1(b);
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any Parent’s liability for Losses arising out of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under clause (v) of the definition of Specified Liabilities in Section 11.17 at any of the documents Subsidiary Facilities other than the Delta Tupelo Facility (“On-Site Contamination”) shall be limited to 75% of the first $8,000,000 of Losses sustained by the Indemnified Parties as a result thereof, provided that once such Losses exceed $8,000,000 Parent shall be liable for 100% of all further Losses and materials delivered provided, further, that Parent shall be liable for 100% of all Losses arising out of any contamination of the soil or ground water at the Delta Tupelo Facility by Parent pursuant to this Agreement; andHazardous Substances;
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.1.
(b) Notwithstanding any other provision to the contrary Parent shall not have any liability under Section 8.1(afor Losses for any breach of the representations and warranties of Parent or for any Indemnified Liabilities unless the Loss arising therefrom exceeds $50,000, provided that for purposes of determining whether the Losses arising out of a breach of a representation or warranty of Parent or for any Indemnified Liability exceed $50,000 breaches arising out of a series of related events shall be aggregated;
(iv) above (i) Parent shall not have any liability for Losses for any breach of the representations and warranties of Parent or for any Indemnified Liabilities unless and until the aggregate of all Small World Losses relating thereto for which Parent would, but for this clause (iv), be required to indemnify Buyer (excluding Losses for which Parent has no liability as a result of clause (iii) of this Section 8.1(b)) exceeds on a cumulative basis an amount equal to $5,000,000, at which point Parent, subject to clause (v) of this Section 8.1(b), shall indemnify Buyer for such Losses, but only to the extent such Losses exceed $5,000,000;
(v) Parent shall not have any liability for Losses for any breach of the representations and warranties of Parent or for Indemnified Liabilities to the extent the aggregate amount of Losses for which Parent would otherwise be liable but exceeds $100,000,000;
(vi) Parent shall not have any liability for this sentence exceeds, on a cumulative basis, an amount equal to $50,000, Losses for any breach of the representations and then only to the extent warranties if Buyer had knowledge of such excess, breach at the time of the Closing and failed to notify Parent of such breach in accordance with Section 4.5(b);
(iivii) for amounts in excess of $2,250,000 Buyer shall have no right to indemnification under Section 8.1(a)(i) with respect to any Loss or alleged Loss if Buyer requested a reduction in the aggregateNet Asset Value reflected on the Closing Statement on account of any matter forming the basis for such Loss or alleged Loss;
(viii) If a liability or reserve was reflected on the Final Closing Statement relating to any matter for which Buyer would otherwise be entitled to indemnification under Section 8.1(a)(i) or Section 8.1(a)(iii), then the calculation of Buyer’s Losses in respect of such matter shall be reduced by the full amount of such liability or reserve as reflected in the calculation of Net Asset Value on the Final Closing Statement and (iii) unless the Small World Shareholders Buyer shall have asserted a claim no right to indemnification with respect to the matters amount of such Loss reflected as a liability or reserve on the Final Closing Statement;
(ix) The obligations to indemnify and hold Buyer harmless pursuant to Section 8.1(a)(i) shall terminate as set forth in Section 8.1(a)(i), or 3.3 and the obligations to indemnify and hold Buyer harmless pursuant to Section 8.1(a)(iii) shall terminate ten (10) years after the Closing Date, except that Parent’s obligations with respect to Specified Liabilities (other than as provided in clause (x) of this Section 8.1(b)) shall not be subject to the extent applicable foregoing limitation; provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which Buyer shall have, prior to the expiration of such ten (10) year period, previously made a claim by delivering a notice that constitutes an Indemnification Notice and complies with the requirements therefor; and
(x) The obligations to indemnify and hold Buyer harmless pursuant to Section 8.1(a)(i)8.1(a)(iii) with respect to Losses arising out of On-Site Contamination shall terminate ten (10) years after the Closing Date; provided, within 18 months however, that such obligations to indemnify and hold harmless shall not terminate with respect to any Remedial Action with respect to any On-Site Contamination if a plan of the Effective Time. Notwithstanding any implication remediation was adopted with respect to such On-Site Contamination prior to the contrary contained herein, expiration of such ten (10) year period and Buyer has complied with the parties acknowledge requirements of Section 8.3 and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) aboveSection 8.4.
Appears in 1 contract
Sources: Purchase Agreement (Pentair Inc)
Indemnification by Parent. (a) Subject to the limitations set forth in this Section 10.3, from and after the Effective Time, Parent shall indemnify and hold harmless the Small World Shareholders Certificate Holders, the Stockholder, their respective affiliates, and Small World's their respective trustees, donors, beneficiaries, directors, officers officers, managers, stockholders, employees and employees their respective heirs, successors and permitted assigns, each in their capacity as such (collectivelythe “Stockholder Indemnified Parties”, together with the Parent Indemnified Parties, the "Small World “Indemnified Parties"”) harmless from from, against and against, in respect of and agree promptly to defend each of the Small World pay such Stockholder Indemnified Parties from and reimburse each of the Small World Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims amount of any kind (includingLosses imposed on, without limitationsustained, reasonable attorney fees and other legal costs and expenses) (collectively a "Small World Loss") that incurred or suffered by, any of the Small World Stockholder Indemnified Parties may at Parties, whether in respect of Third Party Claims, claims between any time suffer or incurof the parties hereto, or become subject tootherwise, as a result directly or indirectly resulting from or arising out of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties representation or warranty made by Parent or Merger Sub contained in or pursuant to this Agreement, in each case as of the date of this Agreement or in any instrument, certificate or affidavit delivered by Parent or Sub at as of the Closing in accordance with Date as though made on and as of the provisions hereof;
Closing Date or (ii) any failure by breach of any covenant or agreement of Parent or Merger Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and materials delivered by Parent pursuant to contained in this Agreement; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.1.
(b) Notwithstanding any other provision to the contrary Parent shall not have any liability under Section 8.1(a) above 10.3(a)(i), except with respect to any breach or inaccuracy of any Fundamental Representation, (i) unless the Stockholder Indemnified Parties have suffered Losses under Section 10.3(a)(i) that in the aggregate are in excess of the Deductible in which event Parent shall only pay or be liable for Losses under Section 10.3(a)(i) in excess of the Deductible or (ii) with respect to any claim under Section 10.3(a)(i) unless such claim (taken together with all Small World other claims, if any, resulting from the same facts and circumstances) involves Losses in excess of the De Minimis Amount (nor shall such item be applied to or considered for purposes of calculating the aggregate amount of the Stockholder Indemnified Parties’ Losses for purposes of Section 10.3(b)(i) or 10.3(c)).
(c) The maximum amount for which Parent would shall be liable but for this sentence exceeds, on a cumulative basis, under Section 10.3(a)(i) in the aggregate shall be an amount equal to $50,000the product of (A) 0.026 and (B) the Brokerage Firm Consideration, and then only except with respect to the extent any breach or inaccuracy of such excess, (ii) any Fundamental Representation. The maximum amount for amounts in excess of $2,250,000 which Parent shall be liable under this Section 10.3 in the aggregate, and (iii) unless the Small World Shareholders have asserted a claim including with respect to any breach or inaccuracy of any Fundamental Representation, shall not exceed the matters set forth Brokerage Firm Consideration.
(d) Parent shall not have any liability in Section 8.1(a)(i), or 8.1(a)(iii) respect of any Loss to the extent applicable to Section 8.1(a)(i)the fact, within 18 months of the Effective Time. Notwithstanding any implication matter, event or circumstance giving rise to the contrary contained herein, the parties acknowledge and agree that claim on which it is based is addressed by a decrease specific reserve reflected in the value Parent Financial Statements.
(e) Any indemnification of a Stockholder Indemnified Party pursuant to this Section 10.3 shall be effected within fifteen (15) days after the Final Determination thereof by wire transfer or transfers of immediately available funds from Parent Stock would not, to an account designated by itself, constitute a Small World Loss, unless and the applicable Stockholder Indemnified Party to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) aboveParent.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World Shareholders and Small World's directors, officers and employees Tessera Stockholders (collectively, the "Small World Tessera Indemnified Parties") harmless from and against, and agree agrees promptly to defend each of the Small World Tessera Indemnified Parties from and reimburse each of the Small World Tessera Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, including reasonable attorney attorneys' fees and other legal costs and expenses) (collectively collectively, a "Small World Tessera Loss") that any of the Small World Tessera Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant hereto or in or pursuant to this the Merger Agreement, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereofhereof or of the Merger Agreement;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement hereunder or under any of the documents and materials delivered by Parent pursuant hereto or to this the Merger Agreement; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.14.1(a).
(b) Notwithstanding any other provision hereof to the contrary contrary, Parent shall not have any liability under Section 8.1(a4.1(a)(i) above (or Section 4.1(a) (iii), to the extent arising from or based upon matters subject to Section 4.1 (a) (i)) (i) unless the aggregate of all Small World Tessera Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000500,000 ("Basket"), and then only to the extent of such excess, (ii) absent fraud, for amounts Tessera Losses in excess of $2,250,000 12.5 million ("Cap") in the aggregate, and (iii) unless the Small World Shareholders have Tessera Stockholders has asserted a claim with respect to the matters set forth in Section 8.1(a)(i4.1(a)(i), or 8.1(a)(iii4.1(a)(iii) to the extent applicable to Section 8.1(a)(i4.1(a)(i), within 18 months of the Effective TimeTime (as defined in the Merger Agreement). Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World Tessera Loss, unless and then only to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i4.1(a)(i), (ii) or (iii) above).
Appears in 1 contract
Indemnification by Parent. (a) Subject to the limitations set forth in this Article X, subsequent to the Closing, Parent shall indemnify indemnify, defend and hold the Small World Shareholders harmless Clorox and Small World's directorsits Representatives, officers against and employees (collectively, the "Small World Indemnified Parties") harmless from and against, and agree promptly to defend each in respect of the Small World Indemnified Parties from and reimburse each of the Small World Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively a "Small World Loss") that any of Damages to the Small World Indemnified Parties may at any time suffer or incur, or become subject to, as a result extent arising out of or in connection withresulting from:
(i) any breach of a representation or inaccuracy of any of the representations and warranties warranty made by Parent or Sub HCI in this Agreement or pursuant to any Schedule hereto (other than representations and warranties set forth in Section 5.9 of this Agreement, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof);
(ii) any failure by breach of any agreement or covenant of Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and materials delivered by Parent pursuant to HCI contained in this Agreement; and;
(iii) any suitBusiness Liability (other than any Business Liability relating to Taxes) and any legal, action administrative or other proceeding arising out ofarbitration proceeding, suit or in Action of any way related tonature with respect thereto; or
(iv) Parent's or HCI's operation of the Transferred Businesses or Business Assets after Closing, but not to the extent resulting from Clorox's or any of its Affiliates' (including Splitco's) actions or operations prior to Closing unless expressly assumed by Parent or HCI under the matters referred to in terms of this Section 8.1Agreement.
(b) Notwithstanding any other provision the foregoing and subject to the contrary following sentence, in the case of Damages incurred as a result of a breach set forth in clause (i) of Section 10.3(a) above, (i) Parent shall not have any liability under Section 8.1(a) above (i) be liable for indemnification hereunder unless and until the aggregate of all Small World Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000, and then only to the extent of such excessDamages exceeds $12 million (the "Parent Basket"), in which event Clorox shall be entitled to indemnification for all Damages in excess of the Parent Basket; (ii) no claim for amounts in excess of Damages shall be counted toward the Parent Basket unless such claim individually exceeds $2,250,000 in 75,000 (the aggregate, "Parent De Minimis"); and (iii) unless Parent's aggregate liability under clause (i) of Section 10.3(a) above shall in no event exceed $250 million (the Small World Shareholders have asserted a claim with respect to the matters set forth in Section 8.1(a)(i"Parent Cap"), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months . None of the Effective Time. Notwithstanding any implication to the contrary contained hereinParent Basket, the parties acknowledge and agree that a decrease in Parent De Minimis or the value of Parent Stock would not, by itself, constitute a Small World Loss, unless and Cap shall apply to the extent a decrease in the value of Parent Stock has been demonstrated to be Damages incurred as a result of a breach of any event described in Sections 8.1(a)(i), (ii) or (iii) aboveof the Title Reps.
Appears in 1 contract
Indemnification by Parent. (a) From and after the Closing, Parent and the Surviving Corporation shall indemnify indemnify, defend and hold the Small World Shareholders and Small World's directors, officers and employees (collectively, the "Small World Indemnified Parties") Securityholders harmless from and against, and agree promptly to defend each of the Small World Indemnified Parties from and reimburse each of the Small World Indemnified Parties for, against any and all actual losses, judgments, liabilities, damages, costsobligations, expensessettlements, liabilitiesawards, obligations offsets, costs and claims of any kind expenses (including, without limitation, reasonable attorney fees attorneys' fees, accounting fees, and other legal costs defense and expensesinvestigation costs) (collectively a collectively, "Small World LossLosses") that may be incurred by any of the Small World Indemnified Parties may at any time suffer or incur, or become subject to, as a result Securityholders arising out of or in connection with:
relating to (i) any breach inaccuracy in any representation or inaccuracy warranty of any of the representations and warranties made by Parent or Sub (disregarding for such purpose any materiality, Material Adverse Effect or similar qualifiers) contained in Section 3.2 or pursuant to this Agreement, any breach of or in noncompliance with any instrument, certificate covenant or affidavit delivered by agreement of Parent or Sub at the Closing contained in accordance with the provisions hereof;
this Agreement or (ii) any failure by Parent the operation or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any control of the documents and materials delivered by Parent pursuant to this Agreement; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any business of the matters referred to in this Section 8.1Company and its Subsidiaries after the Closing Date.
(b) Notwithstanding any other provision anything to the contrary Parent shall not have any liability under Section 8.1(a) above in this Agreement:
(i) unless the Securityholders are not entitled to indemnification under Section 10.1(a) for any Losses based upon any inaccuracy in any representation or warranty of Parent or Sub contained in this Agreement until such time as the Losses incurred by the Securityholders in the aggregate exceed $1,250,000 (the "Minimum"), at which time Parent and the Surviving Corporation shall be liable for all Losses in excess of all Small World Losses the Minimum incurred by the Securityholders, except for the representations and warranties contained in Sections 3.2(a) (Organization), 3.2(b) (Authority) and 3.2(f) (Brokers and Finders) for which the Minimum shall not be applicable.
(ii) Notwithstanding the foregoing, in no event will Securityholders be entitled to indemnification under Section 10.1(a) with respect to a particular matter unless and until the aggregate amount of Losses incurred with respect to such matter for which indemnification is sought (or the reasonable estimate of such Losses likely to be incurred with respect to such matter) exceeds $10,000.
(iii) Securityholders' sole and exclusive remedy against Parent would be liable but or the Surviving Corporation for this sentence exceeds, on a cumulative basis, an amount equal any Losses described in Section 10.1(a) is the right to $50,000proceed for indemnification in the manner, and then only to the extent of such excessextent, (ii) for amounts in excess of $2,250,000 in the aggregateprovided by this Section 10, and (iii) unless the Small World Shareholders have asserted a claim other than with respect to fraud.
(c) The representations and warranties of Parent and Sub contained in this Agreement or in any certificate or instrument delivered under this Agreement will survive for eighteen months after the matters set forth in Section 8.1(a)(iClosing Date (the "Expiration Date"), or 8.1(a)(iiiother than with respect to Sections 3.2(b) to the extent applicable to Section 8.1(a)(i), within 18 months of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (iiAuthority) or (iii) abovewhich shall survive indefinitely.
Appears in 1 contract
Sources: Merger Agreement (Golfsmith International Holdings Inc)
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World CommerceWAVE Shareholders and Small WorldCommerceWAVE's directors, officers and employees (collectively, the "Small World CommerceWAVE Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World CommerceWAVE Indemnified Parties from and reimburse each of the Small World CommerceWAVE Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, including reasonable attorney fees and other legal costs and expenses) (collectively collectively, a "Small World CommerceWAVE Loss") that any of the Small World CommerceWAVE Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreementhereto, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement hereunder or under any of the documents and materials delivered by Parent pursuant to this Agreementhereto; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.18.1(a).
(b) Notwithstanding any other provision hereof to the contrary contrary, Parent shall not have any liability under Section 8.1(a8.1(a)(i) above (i) unless the aggregate of all Small World CommerceWAVE Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000100,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 10,000,000 in the aggregate, and (iii) unless the Small World CommerceWAVE Shareholders have asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months one year of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World CommerceWAVE Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World InTouch Shareholders and Small WorldInTouch's directors, officers and employees (collectively, the "Small World InTouch Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World InTouch Indemnified Parties from and reimburse each of the Small World InTouch Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively a collectively, an "Small World InTouch Loss") that any of the Small World InTouch Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreementhereto, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement hereunder or under any of the documents and materials delivered by Parent pursuant to this Agreementhereto; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.18.1(a).
(b) Notwithstanding any other provision hereof to the contrary contrary, Parent shall not have any liability under Section 8.1(a8.1(a)(i) above (i) unless the aggregate of all Small World InTouch Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 1,200,000 in the aggregate, and (iii) unless the Small World InTouch Shareholders have asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months two years of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World InTouch Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) Subject to the limitations set forth in this Article 9, from and after the Closing, Parent shall agrees to indemnify Purchaser, its Affiliates (in their capacity as such and hold the Small World Shareholders not as lendors) and Small World's directorsany of its respective agents, employees, officers and employees directors (each, a "Purchaser Indemnified Party" and collectively, the "Small World Purchaser Indemnified Parties") harmless from and ), against, and agree promptly agrees to defend each of the Small World hold Purchaser Indemnified Parties from and reimburse each of the Small World Indemnified Parties forharmless from, any and all losses, costs, damages, penalties, fines, liabilities and expenses (including reasonable legal fees and expenses and costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expensesexpenses incurred in pursuing indemnification under this Agreement) (collectively a collectively, "Small World LossDamages") that incurred or sustained by any of Purchaser Indemnified Party to the Small World Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection withextent arising out of:
(i) any breach or inaccuracy of any of the representations and warranties made representation or warranty by Parent or Sub Sellers contained in or pursuant to this Agreement, Agreement or in any instrument, the certificate or affidavit delivered by Parent or Sub at the Closing set forth in accordance with the provisions hereof;Section 6.7; and
(ii) a breach by Sellers of any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and materials delivered by Parent pursuant to this Agreement; and
(iii) any suit, action covenants or other proceeding arising out ofagreements contained herein that are to be performed following the Closing Date. Following the Closing, solely for purposes of determining whether a representation or in any way related towarranty that is qualified by reference to matters "that would not, any of the matters referred to in this Section 8.1.
(b) Notwithstanding any other provision to the contrary Parent shall not have any liability under Section 8.1(a) above (i) unless the aggregate of all Small World Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 individually or in the aggregate, have a Material Adverse Effect" or language of similar import has been breached for purposes of Section 9.2(a)(i) only, such Material Adverse Effect qualifier shall be disregarded and (iii) unless in lieu thereof such representation or warranty shall be deemed to be qualified by reference to matters "that would not, individually or in the Small World Shareholders have asserted a claim with respect aggregate, give rise to the matters set forth in Section 8.1(a)(i)Damages of $1,000,000 or more"; provided, or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i)however, within 18 months of the Effective Time. Notwithstanding any implication to the contrary contained herein, that the parties acknowledge and agree that such $1,000,000 Damage threshold shall not be applied for purposes of determining whether a decrease Material Adverse Effect exists or has occurred.
(b) The aggregate indemnification obligation for Damages under Section 9.2(a)(i) (other than in respect of Damages arising out of breaches of the value of Parent Stock would not, by itself, constitute a Small World Loss, unless representations and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described warranties contained in Sections 8.1(a)(i)3.1, (ii3.2, 3.3 and 3.9) or (iii) aboveshall not exceed $30,000,000.00.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Citizens Communications Co)
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World Shareholders ▇▇▇▇▇▇▇ Companies Sellers and Small World's the ▇▇▇▇▇▇▇ Companies' directors, officers and employees (collectively, the "Small World ▇▇▇▇▇▇▇ Companies Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World ▇▇▇▇▇▇▇ Companies Indemnified Parties from and reimburse each of the Small World ▇▇▇▇▇▇▇ Companies Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, including reasonable attorney fees and other legal costs and expenses) (collectively collectively, a "Small World ▇▇▇▇▇▇▇ Companies Loss") that any of the Small World ▇▇▇▇▇▇▇ Companies Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreementhereto, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement hereunder or under any of the documents and materials delivered by Parent pursuant to this Agreementhereto; and
(iii) any suit, action or other proceeding arising out of, ; or in any way related to, any of the matters referred to in this Section 8.16.1(a).
(b) Notwithstanding any other provision hereof to the contrary contrary, Parent shall not have any liability under Section 8.1(a6.1(a)(i) above (i) unless the aggregate of all Small World ▇▇▇▇▇▇▇ Companies Losses for fore which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,00025,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 240,000 in the aggregate, and (iii) unless the Small World ▇▇▇▇▇▇▇ Companies Shareholders have asserted a claim with respect to the matters set forth in Section 8.1(a)(i6.1(a)(i), or 8.1(a)(iii6.1(a)(iii) to the extent applicable to Section 8.1(a)(i6.1(a)(i), within 18 months two years of the Effective TimeClosing Date. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, ; constitute a Small World ▇▇▇▇▇▇▇ Companies Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i6.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World SCE Shareholders and Small WorldSCE's directors, officers and employees (collectively, the "Small World SCE Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World SCE Indemnified Parties from and reimburse each of the Small World SCE Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively collectively, a "Small World SCE Loss") that any of the Small World SCE Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreementhereto, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement hereunder or under any of the documents and materials delivered by Parent pursuant to this Agreementhereto; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.18.1(a).
(b) Notwithstanding any other provision hereof to the contrary contrary, Parent shall not have any liability under Section 8.1(a8.1(a)(i) above (i) unless the aggregate of all Small World SCE Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 2,000,000 in the aggregate, and (iii) unless the Small World SCE Shareholders have asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months two years of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World SCE Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World BII Shareholders and Small WorldBII's directors, officers and employees (collectively, the "Small World BII Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World BII Indemnified Parties from and reimburse each of the Small World BII Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively a "Small World BII Loss") that any of the Small World BII Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreement, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and materials delivered by Parent pursuant to this Agreement; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.1.
(b) Notwithstanding any other provision to the contrary Parent shall not have any liability under Section 8.1(a) above (i) unless the aggregate of all Small World BII Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000200,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 14,000,000 in the aggregate, and (iii) unless the Small World BII Shareholders have asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months two years of the Effective Time, except with respect to the matters arising under Sections 5.19, 5.20, 5.21 or 5.24 hereof, in which event Parent must have asserted a claim within the applicable statute of limitations. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World BII Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of of, or in connection with, any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall indemnify and hold After the Small World Effective Time, the Shareholders and Small World's their respective affiliates, officers, directors, officers employees, agents, successors and employees assigns (collectively, the "Small World Shareholder Indemnified Parties") shall be indemnified and held harmless from and against, and agree promptly to defend each of the Small World Indemnified Parties from and reimburse each of the Small World Indemnified Parties for, by Parent for any and all lossesLosses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively a "Small World Loss") that any of the Small World Indemnified Parties may at any time suffer or incur, or become subject to, as a result arising out of or in connection withresulting from:
(i) any the breach or inaccuracy of any representation or warranty (without giving effect to any qualification as to materiality contained therein in determining the amount of the representations and warranties any Loss) made by Parent in the Acquisition Documents as of the date of this Agreement or Sub in or pursuant to this Agreement, or in any instrument, certificate or affidavit delivered by Parent or Sub at as if such representation and warranty was made on and as of the Closing in accordance with date of the provisions hereofEffective Time;
(ii) the breach of any failure covenant or agreement made by Parent or Sub in the Acquisition Documents; or
(iii) the amount, if any, by which the Closing Cash, as determined by Parent after the Effective Time, is greater than the good faith estimate of the Closing Cash provided to carry out, perform, satisfy and discharge Parent by the Company immediately prior to the Effective Time in accordance with Section 3.01(a). To the extent that any of its respective covenantsParent's undertakings set forth in this Section 11.03(a) may be unenforceable, agreementsParent shall contribute the maximum amount that it is permitted to contribute under applicable Law to the payment and satisfaction of all Losses incurred by the Shareholder Indemnified Parties, undertakingssubject to the limitations imposed by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, liabilities except with respect to claims based on fraud:
(i) no indemnification payment by Parent with respect to any indemnifiable Loss otherwise payable under Section 11.03(a)(i) and (ii) and arising out of or obligations resulting from the causes enumerated in Section 11.03(a) (except for Parent's obligation under this Agreement or under any Section 3.02(a) to deposit cash sufficient to pay the aggregate cash consideration pursuant to Section 3.02) shall be payable until such time as all such indemnifiable Losses shall aggregate to more than $1,500,000, after which time Parent shall only be liable for such indemnifiable Losses in excess of the documents and materials delivered by Parent first $1,500,000;
(ii) the maximum aggregate amount of indemnifiable Losses arising out of or resulting from the causes enumerated in Section 11.03(a)(i) or (ii) (except for Parent's obligation under Section 3.02(a) to deposit cash sufficient to pay the aggregate cash consideration pursuant to this AgreementSection 3.02) that may be recovered from Parent shall be limited to $12,000,000; and
(iii) no Loss shall be deemed to have been sustained by any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.1.
(b) Notwithstanding any other provision to the contrary Parent shall not have any liability under Section 8.1(a) above (i) unless the aggregate of all Small World Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000, and then only Shareholder Indemnified Party to the extent of any proceeds received by such excess, (ii) for amounts in excess of $2,250,000 in the aggregate, and (iii) unless the Small World Shareholders have asserted a claim party from any insurance policies with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) abovethereto.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World Shareholders TWC Members and Small WorldTWC's directorsmanager, officers and employees (collectively, the "Small World TWC Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World TWC Indemnified Parties from and reimburse each of the Small World TWC Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, including reasonable attorney fees and other legal costs and expenses) (collectively collectively, a "Small World TWC Loss") that any of the Small World TWC Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreementhereto, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement hereunder or under any of the documents and materials delivered by Parent pursuant to this Agreementhereto; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.18.1(a).
(b) Notwithstanding any other provision hereof to the contrary contrary, Parent shall not have any liability under Section 8.1(a8.1(a)(i) above (i) unless the aggregate of all Small World TWC Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to 5% of the aggregate Merger consideration payable, in any form (each share of Parent Stock valued at $50,00010), pursuant to Section 3.1 hereof ("Basket"), and then only to the extent of such excess, (ii) for amounts in excess of the aggregate Merger consideration payable, in any form (each share of Parent Stock valued at $2,250,000 10), pursuant to Section 3.1 hereof ("Cap") in the aggregate, and (iii) unless the Small World Shareholders TWC Members have asserted a claim pursuant to Section 8.3 hereof with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock owned by any of the TWC Members would not, by itself, constitute a Small World TWC Loss, unless and to the extent a decrease in the value of such Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World Tekna Shareholders and Small WorldTekna's directors, officers and employees (collectively, the "Small World Tekna Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World Tekna Indemnified Parties from and reimburse each of the Small World Tekna Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, including reasonable attorney fees and other legal costs and expenses) (collectively collectively, a "Small World Tekna Loss") that any of the Small World Tekna Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreementhereto, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement hereunder or under any of the documents and materials delivered by Parent pursuant to this Agreementhereto; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.18.1(a).
(b) Notwithstanding any other provision hereof to the contrary contrary, Parent shall not have any liability under Section 8.1(a8.1(a)(i) above (i) unless the aggregate of all Small World Tekna Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000100,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 7,000,000 in the aggregate, and (iii) unless the Small World Tekna Shareholders have asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months two years of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World Tekna Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) Subject to the express provisions of this Article XII and except as otherwise provided in Article VIII, Parent shall indemnify indemnify, defend and hold harmless Seller, its Affiliates and the Small World Shareholders and Small World's respective officers, directors, officers employees and employees agents of Seller and its Affiliates (collectively, the "Small World “Seller Indemnified Parties"”) harmless from and againstagainst all Losses incurred or suffered by a Seller Indemnified Party, and agree promptly but only to defend each of the Small World Indemnified Parties from and reimburse each of the Small World Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively a "Small World Loss") that any of the Small World Indemnified Parties may at any time suffer or incur, or become subject extent attributable to, as a result of or in connection with:
(i) any breach or inaccuracy in any material respect as of the Closing Date of any representation or warranty, made by Parent in this Agreement (it being understood that, for purposes of the this Article XII, such representations and warranties made by Parent will be interpreted without giving effect to any qualifications or Sub in limitations as to “materiality” or pursuant to this Agreement, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof“Material Adverse Effect”);
(ii) any failure breach by Parent or Sub to carry out, perform, satisfy and discharge of any of its respective covenants, agreements, undertakings, liabilities or obligations covenants under this Agreement or under any of the documents and materials delivered by Parent pursuant to this Agreement; and;
(iii) any suit, action or other proceeding arising out of, or in any way related to, any Legal Proceeding relating to the operations of the matters referred to Company or its Subsidiaries other than those specified in this Section 8.1Sections 12.1(a)(iii); or
(iv) payment or performance by Seller or its Subsidiaries after the Closing under guarantees of obligations of the Company or its Subsidiaries (other than guarantees specified in the Real Estate Indemnity Agreement as liabilities of Seller).
(b) Notwithstanding any other provision to the contrary contrary:
(i) Parent shall not have any no liability under Section 8.1(a12.2(a)(i) above (i) in connection with any claim unless and until the aggregate of all Small World Losses for which Parent would be liable liability that Seller would, but for this sentence exceedsSection 12.2(b)(i), on a cumulative basishave in connection with such claim for any inaccuracy or breach, exceeds an amount equal to $50,000, in which case Parent shall be liable from the first dollar with respect to such claim; provided, however, that if such claim is a Common Claim, then Parent shall be liable from the first dollar with respect to such claim;
(ii) Parent shall have no liability under Section 12.2(a)(i) unless and until the aggregate liability of Parent would, but for this Section 12.2(b)(ii), have exceeded on a cumulative basis an amount equal to $ 5,000,000 and then only to the extent of such excess; provided, (ii) however, that if the aggregate liability of Parent would, but for amounts in excess of this Section 12.1(b)(ii), have exceeded on a cumulative basis an amount equal to $2,250,000 in 10,000,000, Parent shall be liable for such aggregate liability from the aggregate, and first dollar;
(iii) unless the Small World Shareholders have asserted aggregate liability of Parent under Section 12.2(a)(i) shall not exceed 20% of the Adjusted Cash Consideration; and
(iv) no Seller Indemnified Party may make any claim for indemnification under this Article XII if it may make a claim for indemnification with respect to the matters set forth pertinent subject matter under another Transaction Document (whether or not such claim results in Section 8.1(a)(ia payment of indemnification to any Seller Indemnified Party), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World Shareholders Next Century, ▇▇▇ ▇▇▇▇▇ and Small WorldNetResponse's directors, officers and employees (collectively, the "Small World NetResponse Indemnified Parties") harmless from and against, and agree shall promptly to defend each of the Small World NetResponse Indemnified Parties from and reimburse each of the Small World NetResponse Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, including reasonable attorney fees and other legal costs and expenses) (collectively collectively, a "Small World NetResponse Loss") that any of the Small World NetResponse Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreementhereto, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement hereunder or under any of the documents and materials delivered by Parent pursuant to this Agreementhereto; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.18.1(a).
(b) Notwithstanding any other provision hereof to the contrary and subject to the next sentance, Parent shall not have any liability under Section 8.1(a8.1(a)(i) above (i) unless the aggregate of all Small World NetResponse Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000100,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 8,750,000 in the aggregate, and (iii) unless the Small World Shareholders Next Century or ▇▇▇ ▇▇▇▇▇ have asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months two years of the Effective Time. In the event that Parent completes an initial public offering, which results in the Parent Stock being traded on a national stock exchange or on Nasdaq, the maximum liability for indemnification under Section 8(b)(ii) shall at any time be equal to the aggregate market price of the total number of shares of Parent Stock received by Next Century pursuant to this Agreement. The market price for such shares shall be determined on any day by multiplying 701,375 times the closing price of such Parent Stock on the immediately preceding day on Nasdaq or other the national stock exchange on which such stock is traded. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World NetResponse Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall and Newco, if any, will jointly and severally indemnify in full the Selling Companies and their respective shareholders, directors, officers, employees, agents, successors and assigns and hold the Small World Shareholders and Small World's directorsthem harmless against any Damages arising from, officers and employees (collectively, the "Small World Indemnified Parties") harmless from and against, and agree promptly relating to defend each of the Small World Indemnified Parties from and reimburse each of the Small World Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively a "Small World Loss") that any of the Small World Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
constituting (i) any breach or inaccuracy of in any of the representations and warranties made contained in Article V of this Agreement or in any certificate delivered by or on behalf of Parent or Sub in or Newco pursuant to this Agreement, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any breach of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and materials delivered by agreements of Parent pursuant to contained in this Agreement; and
, (iii) any suitAssumed Liabilities or (iv) except as otherwise provided in Section 9.1, action or other proceeding arising out of, or in any way related to, any conduct of the matters referred to in this Section 8.1business and ownership and operation of Parent, Newco or the Business and the Real Property after the Closing Date ( the “STS’ Damages”).
(b) Notwithstanding any other provision Parent and Newco will indemnify Selling Companies and their respective shareholders, directors, officers, employees, agents, successors and assigns for STS’ Damages pursuant to Section 9.2(a)(i) only if the contrary STS’ Damages attributable thereto exceeds the Deductible Amount, in which case Parent shall not have any liability under Section 8.1(a) above (i) unless the aggregate of all Small World Losses for which Parent would will be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000, and then only to the extent of such excess, (ii) STS’ for any amounts in excess of $2,250,000 in the aggregateDeductible Amount; provided, and that any STS’ Damages that arise pursuant to Sections 5.1, 5.2, Section 9.2(a)(iii) or Section 11.5 shall not be subject to the Deductible Amount.
(c) With the exception of STS’ Damages resulting from fraudulent or willful misconduct by Parent, or with respect to any Assumed Liabilities, liability for STS’ Damages will not exceed the aggregate amount of the Indemnification Amount.
(d) If STS has a claim for indemnification under Section 9.2(a)(i), STS will deliver to Parent one or more written notices of STS’ Damages prior to the 18 months following the Closing Date. If STS has a claim for indemnification for a claim under clauses (ii), (iii) or (iv) of Section 9.2(a), STS will deliver to Parent one or more written notices of such claims. Parent will have no liability under Section 9.2(a)(i) unless the Small World Shareholders have asserted written notice required by the first sentence of this Section 9.2(d) is given by the date specified. Any written notice will state in reasonable detail the basis for such STS Damages to the extent then known by STS and the nature of STS Damages for which indemnification is sought, and it may state the amount of STS Damages claimed. If such written notice (or an amended notice) states the amount of STS Damages claimed and Parent notifies STS that Parent does not dispute the claim described in such notice or fails to notify STS within twenty (20) business days after delivery of such notice by STS whether Parent disputes the claim described in such notice, STS Damages in the amount specified in STS’ notice will be admitted by Parent, and Parent will pay the amount of such STS Damages to STS in accordance with Section 9.2(e). If Parent has timely disputed its liability with respect to such claim, Parent and STS will proceed in good faith to negotiate a resolution of such dispute. If a claim for indemnification has not been resolved within sixty (60) days after delivery of Parent’s notice, STS may pursue arbitration in accordance with Section 10.01 hereof. If a written notice does not state the amount of STS Damages claimed, such omission will not preclude STS from recovering from Parent the amount of STS Damages with respect to the matters claim described in such notice if any such amount is promptly provided once determined. In order to assert its right to indemnification under this Article IX, STS will not be required to provide any notice except as provided in this Section 9.2(d).
(e) Parent shall pay the amount of any STS’ Damages to STS within ten (10) days following the determination of Parent’s liability for such amount of STS’ Damages (whether such determination is made pursuant to the procedures set forth in this Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not9.2, by itself, constitute a Small World Loss, unless agreement between STS’ and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(ior by arbitration award), (ii) or (iii) above.
Appears in 1 contract
Sources: Asset Purchase Agreement (Iowa Telecommunications Services Inc)
Indemnification by Parent. (a) Subject to the limitations set forth in this Section 8.2, from and after the Closing Date, Parent shall indemnify and hold harmless each of the Small World Shareholders Investors and Small World's each of their respective direct or indirect Affiliates, officers, directors, officers members, managers, partners, employees, agents and employees other representatives (collectively, the "Small World Investor Indemnified PartiesPersons") harmless from ), from, against and against, and agree promptly to defend each in respect of the Small World Indemnified Parties from and reimburse each of the Small World Indemnified Parties for, any and all liabilities, losses, damages, costsfines, expensespenalties, liabilitiesfees, obligations costs and claims of any kind expenses (includingin each case, without limitation, including reasonable attorney attorneys' fees and other legal costs and expenses) ), whether or not involving a third party claim (collectively a collectively, "Small World LossLosses") that any of the Small World ), incurred or suffered by such Investor Indemnified Parties may at any time suffer or incur, or become subject to, Persons as a result of or in connection withof:
(i) any breach of, or inaccuracy in, any representation or warranty made by Parent in this Agreement or in any certificate delivered pursuant to this Agreement; or
(ii) any breach or violation of any covenant or agreement of Parent pursuant to this Agreement or the other Transaction Agreements. For the purposes of clause (i) of this Section 8.2(a), the representations and warranties made by of Parent contained in Article 4 of this Agreement (other than the first sentence of Section 4.9), or Sub in or any certificate delivered pursuant to this Agreement, shall be read as if all qualifications as to materiality, including each reference to the terms and phrases "material", "in all material respects" or like phrases, and the defined term "Parent Material Adverse Effect", were deleted therefrom in determining whether there has been a breach of any instrumentsuch representation or warranty. (b) Limitations on Liability.
(i) Investor Indemnified Persons shall not be entitled to assert any claim for indemnification under Section 8.2(a)(i) until such time as the aggregate of all indemnifiable Losses that Investor Indemnified Persons may have under Section 8.2(a)(i) exceed $5,000,000, certificate or affidavit delivered by and then Parent or Sub at shall be responsible for all Losses except the Closing in accordance with the provisions hereof;first $2,500,000 of such $5,000,000 threshold.
(ii) any failure by The maximum aggregate liability of Parent or Sub for indemnification claims under Section 8.2(a)(i) shall be limited to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and materials delivered by Parent pursuant to this Agreement; and$15,000,000.
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.1.
(b) Notwithstanding any other provision to the contrary Parent shall not have any liability under Section 8.1(a) above (i) unless the aggregate of all Small World Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 in the aggregate, and (iii) unless the Small World Shareholders have asserted a claim with respect to the matters The limitations set forth in Section 8.1(a)(i), or 8.1(a)(iii8.2(b)(i) to the extent and (ii) shall not be applicable to Section 8.1(a)(i), within 18 months of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, Losses incurred or suffered by itself, constitute a Small World Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be Investor Indemnified Persons as a result of (A) any event described in Sections 8.1(a)(i)breach of, (ii) or inaccuracy in, the Specified Representations or (iiiB) abovefraud, intentional misrepresentation or intentional omission by Parent.
(iv) The amount of Losses for which indemnification is available under this Section 8.2 shall be calculated net of any amounts actually recovered by the Person entitled to seek indemnification hereunder (the "Indemnified Person") under insurance policies with respect to such Losses.
Appears in 1 contract
Sources: Securities Purchase Agreement (Capital Z Financial Services Fund Ii Lp)
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World Image Shareholders and Small WorldImage's directors, officers and employees (collectively, the "Small World Image Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World Image Indemnified Parties from and reimburse each of the Small World Image Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, including reasonable attorney fees and other legal costs and expenses) (collectively collectively, a "Small World Image Loss") that any of the Small World Image Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreementhereto, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement hereunder or under any of the documents and materials delivered by Parent pursuant to this Agreementhereto; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.18.1(a).
(b) Notwithstanding any other provision hereof to the contrary contrary, Parent shall not have any liability under Section 8.1(a8.1(a)(i) above (i) unless the aggregate of all Small World Image Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000200,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 of, in the aggregate, the amount (the "Cap") determined by multiplying the aggregate value, at $10 per share, of the Parent Stock actually issued at the Closing pursuant to Section 3.1(b) hereof, by a percentage equal to the aggregate Image Shareholdings, at the Closing, of the Controlling Shareholders relative to the holdings of all Image Shareholders, and (iii) unless the Small World Image Shareholders have asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World an Image Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall indemnify hereby agrees to indemnify, defend ------------------------- and hold harmless the Small World Shareholders Company, and Small World's its officers, directors, officers employees and employees (collectivelystockholders, the "Small World Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World Indemnified Parties from and reimburse each of the Small World Indemnified Parties for, for any and all lossesLosses, damageson a Grossed-Up Basis (whether or not involving a Third Party Claim), costsincurred or sustained by the Company, expensesand its officers, liabilitiesdirectors, obligations employees and claims of any kind (includingstockholders, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively a "Small World Loss") that any of directly or indirectly prior to the Small World Indemnified Parties may at any time suffer or incur, or become subject to, Expiration Date as a result of or in connection with:
(i) any inaccuracy in, or breach of, a representation or inaccuracy warranty of any of the representations and warranties made by Parent or Merger Sub in or pursuant to this Agreement, contained herein (or in any certificate, instrument, certificate schedule or affidavit document attached to this Agreement and delivered by Parent or Merger Sub at the Closing in accordance connection with the provisions hereof;
Merger); (ii) any failure by Parent or Merger Sub to carry outperform or comply with any covenant or agreement contained herein, performor (iii) (A) any Hazardous Material at, satisfy and discharge on, under, migrating to or from, or transported to or from any of Parent's real properties on or prior to the Closing; (B) any Environmental Claim arising at any time that relates to Parent on or prior to the Closing; or (C) any noncompliance with any applicable Environmental Law or Environmental Permit relating in any way to Parent on or prior to the Closing, up to a maximum of ten percent (10%) of the aggregate Merger consideration paid to holders of Company Capital Stock pursuant to the terms of this Agreement, which indemnification obligation (x) will be paid in shares of Parent capital stock and (y) shall be the sole and exclusive remedy available to the Company and its respective covenants, agreements, undertakings, liabilities or obligations stockholders for any Losses under this Agreement or under any of the documents and materials delivered by Parent pursuant to this Agreement; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.1.
(b) Notwithstanding any other provision to the contrary otherwise. Parent shall not have any liability be liable to the Company and its officers, directors, employees and stockholders under this Section 8.1(a) above (i) 7.3 or otherwise unless and until the aggregate amount of Losses exceeds the Deductible, at which time the holders of Company Capital Stock may recover all Small World Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000, and then only to the extent amounts of such excess, Losses (ii) for including any amounts of Losses considered in excess of $2,250,000 in determining whether the aggregate, and (iii) unless the Small World Shareholders have asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World Loss, unless and to the extent a decrease in the value of Parent Stock Deductible has been demonstrated to be as a result of any event described in Sections 8.1(a)(iexceeded), (ii) or (iii) above.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Magma Design Automation Inc)
Indemnification by Parent. (a) Parent shall indemnify and hold TWG, the Small World Shareholders TWG Shareholder and Small WorldTWG's directors, officers and employees (collectively, the "Small World TWG Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World TWG Indemnified Parties from and reimburse each of the Small World TWG Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively a "Small World TWG Loss") that any of the Small World TWG Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreement, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and materials delivered by Parent pursuant to this Agreement; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.1.
(b) Notwithstanding any other provision to the contrary Parent shall not have any liability under this Section 8.1(a) above 8.1, (i) unless the aggregate of all Small World TWG Losses for which Parent would be liable but for this sentence exceeds, exceeds on a cumulative basis, basis an amount equal to $50,000, 200,000 and then only to the extent of such excess, and (ii) for amounts in excess of $2,250,000 in the aggregate2,075,000, and (iiiC) unless the Small World Shareholders have TWG Shareholder has asserted a claim with respect to the matters set forth in Section 8.1(a)(i), ) or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), ) within 18 twenty-four (24) months of the Effective Time. Notwithstanding any implication to the contrary contained herein, the The parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World TWG Loss, unless and but to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of or in connection with any event described in Sections 8.1(a)(i), (ii) or (iii) above), such decrease would constitute a TWG Loss.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall indemnify Subject to the limitations set forth in this Agreement, from and hold after the Small World Shareholders Closing, the Acquiror and Small World's its Affiliates (including the Company and the Company Subsidiary following the Closing), officers, directors, officers employees, agents, successors and employees assigns (collectively, each an “Acquiror Indemnified Party”) shall be indemnified and held harmless by the "Small World Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World Indemnified Parties from and reimburse each of the Small World Indemnified Parties for, Parent for any and all lossesLosses suffered or incurred by them, damages, costs, expenses, liabilities, obligations and claims arising out of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively a "Small World Loss") that any of the Small World Indemnified Parties may at any time suffer or incur, or become subject to, as a result of resulting from or in connection with:
(i) any The breach or inaccuracy of any representation or warranty made by the Parent, the Company or any Equityholder contained in the Acquisition Documents;
(ii) The breach of any covenant or agreement by the Parent or the Company or any Equityholder contained in the Acquisition Documents; or
(iii) For any amount paid to a Dissenting Unitholder and the cost of any appraisal process.
(b) Except as set forth herein to the contrary, no claim may be made against the Parent for indemnification pursuant to Section 9.01(a)(i) or 9.01(a)(ii) with respect to any individual item of Loss or items of Loss unless the aggregate of all such Losses of the Acquiror Indemnified Parties shall exceed $250,000 (the “Deductible”), in which event the Parent shall be liable for indemnification for the excess amount of all such Losses up to the maximum amount of $3,000,000 (the “Cap”); provided, however, that the amount of the Cap shall be increased by the amount of Losses of the Acquiror Indemnified Parties that arise out of a breach of the representations and warranties made by Parent contained in Section 4.12(h) (ETC Status) or Sub the covenant contained in or pursuant Section 6.04(a)(i), up to this Agreement, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and materials delivered by Parent pursuant to this Agreement; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.1.
(b) Notwithstanding any other provision to the contrary Parent shall not have any liability under Section 8.1(a) above (i) unless the aggregate of all Small World Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an maximum Cap amount equal to $50,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 in the aggregate, and (iii) unless the Small World Shareholders have asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months of the Effective Time5,000,000. Notwithstanding any implication anything to the contrary contained herein, the parties acknowledge and agree that a decrease Parent shall not be responsible for any Losses in respect of claims made under this Article IX in excess of the value of aggregate proceeds received by the Parent Stock would not(the “Aggregate Proceeds Limit”). In addition, neither the Deductible nor the Cap shall apply (i) for Losses suffered by itself, constitute a Small World Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be Acquiror Indemnified Parties as a result of any event described in Sections 8.1(a)(i)fraud or intentional misrepresentation, or (ii) or to Losses suffered by the Acquiror Indemnified Parties in respect of a breach of the representations and warranties set forth in the second sentence of Section 4.01 (iii) above.Organization, Authority and Qualification of the Parent), Section 4.02 (Organization, Authority and Qualification of the Company and the Company Subsidiary),
Appears in 1 contract
Indemnification by Parent. (a) If the Closing occurs and subject to the terms and conditions of this Article 8, Parent shall indemnify indemnify, defend and hold the Small World Shareholders harmless Buyer, and Small World's its directors, officers officers, employees, affiliates and employees (collectivelycontrolling persons, the "Small World Indemnified Parties") harmless from and against all Losses asserted against, and agree promptly to defend each of the Small World Indemnified Parties from and reimburse each of the Small World Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively a "Small World Loss") that any of the Small World Indemnified Parties may at any time suffer or incur, or become subject resulting to, as a result imposed upon or incurred by any such person, directly or indirectly, by reason of or in connection with:
resulting from (i) any breach or inaccuracy of any of the representations and warranties made by of Parent; (ii) any breach of any covenant of Parent contained in this Agreement or Sub (iii) any Indemnified Liability. For the avoidance of doubt, Buyer and its directors, officers, employees, affiliates and controlling persons, shall not be entitled to recover Losses under any of clauses (i) or (ii) of this Section 8.1(a) to the extent Parent has an indemnification obligation under clause (iii) of this Section 8.1(a).
(b) Parent's obligations under Section 8.1(a) shall be subject to the following limitations:
(i) Except as provided in or pursuant clause (ii) and clause (x) of this Section 8.1(b), Parent's obligations under Section 8.1(a)(iii) with respect to Specified Liabilities shall not be subject to the limitations provided in this Agreement, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereofSection 8.1(b);
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any Parent's liability for Losses arising out of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under clause (v) of the definition of Specified Liabilities in Section 11.17 at any of the documents Subsidiary Facilities other than the Delta Tupelo Facility ("On-Site Contamination") shall be limited to 75% of the first $8,000,000 of Losses sustained by the Indemnified Parties as a result thereof, provided that once such Losses exceed $8,000,000 Parent shall be liable for 100% of all further Losses and materials delivered provided, further, that Parent shall be liable for 100% of all Losses arising out of any contamination of the soil or ground water at the Delta Tupelo Facility by Parent pursuant to this Agreement; andHazardous Substances;
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.1.
(b) Notwithstanding any other provision to the contrary Parent shall not have any liability under Section 8.1(afor Losses for any breach of the representations and warranties of Parent or for any Indemnified Liabilities unless the Loss arising therefrom exceeds $50,000, provided that for purposes of determining whether the Losses arising out of a breach of a representation or warranty of Parent or for any Indemnified Liability exceed $50,000 breaches arising out of a series of related events shall be aggregated;
(iv) above (i) Parent shall not have any liability for Losses for any breach of the representations and warranties of Parent or for any Indemnified Liabilities unless and until the aggregate of all Small World Losses relating thereto for which Parent would, but for this clause (iv), be required to indemnify Buyer (excluding Losses for which Parent has no liability as a result of clause (iii) of this Section 8.1(b)) exceeds on a cumulative basis an amount equal to $5,000,000, at which point Parent, subject to clause (v) of this Section 8.1(b), shall indemnify Buyer for such Losses, but only to the extent such Losses exceed $5,000,000;
(v) Parent shall not have any liability for Losses for any breach of the representations and warranties of Parent or for Indemnified Liabilities to the extent the aggregate amount of Losses for which Parent would otherwise be liable but exceeds $100,000,000;
(vi) Parent shall not have any liability for this sentence exceeds, on a cumulative basis, an amount equal to $50,000, Losses for any breach of the representations and then only to the extent warranties if Buyer had knowledge of such excess, breach at the time of the Closing and failed to notify Parent of such breach in accordance with Section 4.5(b);
(iivii) for amounts in excess of $2,250,000 Buyer shall have no right to indemnification under Section 8.1(a)(i) with respect to any Loss or alleged Loss if Buyer requested a reduction in the aggregateNet Asset Value reflected on the Closing Statement on account of any matter forming the basis for such Loss or alleged Loss;
(viii) If a liability or reserve was reflected on the Final Closing Statement relating to any matter for which Buyer would otherwise be entitled to indemnification under Section 8.1(a)(i) or Section 8.1(a)(iii), then the calculation of Buyer's Losses in respect of such matter shall be reduced by the full amount of such liability or reserve as reflected in the calculation of Net Asset Value on the Final Closing Statement and (iii) unless the Small World Shareholders Buyer shall have asserted a claim no right to indemnification with respect to the matters amount of such Loss reflected as a liability or reserve on the Final Closing Statement;
(ix) The obligations to indemnify and hold Buyer harmless pursuant to Section 8.1(a)(i) shall terminate as set forth in Section 8.1(a)(i), or 3.3 and the obligations to indemnify and hold Buyer harmless pursuant to Section 8.1(a)(iii) shall terminate ten (10) years after the Closing Date, except that Parent's obligations with respect to Specified Liabilities (other than as provided in clause (x) of this Section 8.1(b)) shall not be subject to the extent applicable foregoing limitation; provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which Buyer shall have, prior to the expiration of such ten (10) year period, previously made a claim by delivering a notice that constitutes an Indemnification Notice and complies with the requirements therefor; and
(x) The obligations to indemnify and hold Buyer harmless pursuant to Section 8.1(a)(i)8.1(a)(iii) with respect to Losses arising out of On-Site Contamination shall terminate ten (10) years after the Closing Date; provided, within 18 months however, that such obligations to indemnify and hold harmless shall not terminate with respect to any Remedial Action with respect to any On-Site Contamination if a plan of the Effective Time. Notwithstanding any implication remediation was adopted with respect to such On-Site Contamination prior to the contrary contained herein, expiration of such ten (10) year period and Buyer has complied with the parties acknowledge requirements of Section 8.3 and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) aboveSection 8.4.
Appears in 1 contract
Indemnification by Parent. Except as otherwise limited by this Agreement, Purchaser and its Affiliates (aincluding, without limitation WWI and the Companies) Parent shall indemnify and hold the Small World Shareholders and Small World's directorstheir respective officers, officers directors and employees (collectivelyas to such employees, the "Small World Indemnified Parties"other than lost wages or salary) shall be indemnified, defended and held harmless from by Parent from, against and against, and agree promptly to defend each in respect of the Small World Indemnified Parties from and reimburse each of the Small World Indemnified Parties for, any and all liabilities, losses, damages, claims, costs, charges, actions, suits, proceedings, deficiencies and expenses, liabilitiesinterest, obligations awards, judgments and claims of any kind penalties (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively hereinafter a "Small World Purchaser Loss") that ), imposed on, sustained, incurred or suffered by any of the Small World Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection withsuch Person arising out of:
(ia) any the breach or inaccuracy of any of the representations and warranties representation or warranty made by Parent contained herein or Sub in or the certificate to be delivered pursuant to this Agreement, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and materials delivered by Parent pursuant to this Agreement; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.19.1(d).
(b) Notwithstanding the breach of any other provision covenant or agreement made by Parent contained herein;
(c) the Fitness Business, Excluded Assets or Excluded Liabilities ;
(d) in lieu of indemnification under Section 11.2(a) or (e), any and all Post Signing Franchisee Claims and the trademark and related litigation brought by ▇▇▇▇▇ ▇▇▇▇▇ Fitness Centers, Inc. against WWI, up to the contrary Parent shall not have any liability under Section 8.1(a) above (i) unless the aggregate of all Small World Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to first $50,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 500,000 in the aggregate, and plus the excess of such Purchaser Losses over $500,000; provided, however, that Parent's indemnification obligation hereunder for such excess shall be reduced by applying the amount of any remaining Basket (iiiafter giving effect to any other reductions or applications under this Agreement) unless up to $5,000,000 against 50% of such excess Purchaser Loss incurred in connection therewith; provided further that any amount so applied shall reduce the Small World Shareholders have asserted a claim with respect Basket accordingly;
(e) in lieu of indemnification under Section 11.2(a), (i) any matter identified by Parent as an exception to the matters truth and correctness of any representation or warranty in the certificate to be delivered by Parent at Closing pursuant to Section 9.1(d) or (ii) any matter identified by Purchaser in writing at Closing that constitutes a breach of any representation or warranty made by Parent contained in this Agreement or in the certificate to be delivered pursuant to Section 9.1(d); provided, however, that Parent's indemnification obligation hereunder shall be reduced by applying the amount of any remaining Basket (after giving effect to any other reductions or applications under this Agreement) against 50% of the Purchaser Loss incurred in connection therewith; provided further that any amount so applied shall reduce the Basket accordingly; and/or
(f) the franchisee profit-sharing claims relating to royalties for food products set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be Demand for Arbitration which is identified as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) aboveItem 4 on Schedule 3.12.
Appears in 1 contract
Sources: Recapitalization and Stock Purchase Agreement (Gutbusters Pty LTD)
Indemnification by Parent. Parent and the Surviving Corporation jointly and severally agree to indemnify and hold harmless each Significant Shareholder from and against any and all Losses and Expenses incurred by such Significant Shareholder in connection with or arising from:
(a) any breach by Parent shall indemnify and hold the Small World Shareholders and Small World's directorsor Mergerco of, officers and employees (collectivelyor other failure by Parent or Mergerco to perform, the "Small World Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World Indemnified Parties from and reimburse each of the Small World Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively a "Small World Loss") that any of the Small World Indemnified Parties may at any time suffer covenants of Parent or incur, or become subject to, as a result of Mergerco contained in this Agreement or in connection with:
any other Agreement (iother than the Employment Agreements) any breach or inaccuracy executed on behalf of any of the representations and warranties made by Parent or Sub in or Mergerco pursuant to this Agreement, Agreement or in any instrument, certificate or affidavit other document delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and materials delivered by Parent Mergerco pursuant to this Agreement; and
(iiib) any suit, action breach of any warranty or the inaccuracy of any representation of Parent or Mergerco contained in this Agreement or any certificate or other proceeding arising out ofdocument delivered on behalf of Parent or Mergerco pursuant to this Agreement; provided, or in any way related tohowever, any of that Parent and the matters referred Surviving Corporation shall not be required to in indemnify and hold harmless under this Section 8.1.
(b) Notwithstanding any other provision to the contrary Parent shall not have any liability under Section 8.1(a) above (i) unless the aggregate of all Small World Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 in the aggregate, and (iii) unless the Small World Shareholders have asserted a claim 8.2 with respect to the matters set forth in Section 8.1(a)(i), any Loss or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be Expense incurred as a result of any event breach, inaccuracy, proceeding or other situation described in Sections 8.1(a)(i)paragraphs (a) and (b) of this Section 8.2 (other than fraudulent breach or inaccuracy) until the aggregate amount of all Loss and Expense incurred by the Significant Shareholders with respect to paragraph (b) exceeds $20,000; provided further that if such Loss and Expense incurred by the Significant Shareholder exceeds $20,000, (ii) or (iii) abovethen the Significant Shareholders shall be indemnified against all such Loss and Expense incurred hereunder in excess of $20,000; provided, further, that the aggregate amount to be paid by Parent pursuant to this Section 8.2 shall not exceed the total amount of Merger Consideration received by each Significant Shareholder, in the aggregate.
Appears in 1 contract
Sources: Supplemental Agreement (Combined Professional Services Inc)
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World Micro Shareholders and Small WorldMicro's directors, officers officers, employees and employees agents (collectively, the "Small World Micro Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World Micro Indemnified Parties from and reimburse each of the Small World Micro Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively a "Small World Micro Loss") that any of the Small World Micro Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreement, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and materials delivered by Parent pursuant to this Agreement; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.18.1(a).
(b) Notwithstanding any other provision to the contrary Parent shall not have any liability under Section 8.1(a) above (i) unless the aggregate of all Small World Micro Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000100,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 3,700,000 in the aggregate, and (iii) unless the Small World Micro Shareholders have asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii8.1(a) to the extent applicable to Section 8.1(a)(i), above within 18 months two years of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World Micro Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall indemnify and hold the Small World W & L Shareholders and Small WorldW & L's directors, officers and employees (collectively, the "Small World W & L Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World W & L Indemnified Parties from and reimburse each of the Small World W & L Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively collectively, a "Small World W & L Loss") that any of the Small World W & L Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreementhereto, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement hereunder or under any of the documents and materials delivered by Parent pursuant to this Agreementhereto; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.18.1(a).
(b) Notwithstanding any other provision hereof to the contrary contrary, Parent shall not have any liability under Section 8.1(a8.1(a)(i) above (i) unless the aggregate of all Small World W & L Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,00025,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 500,000 in the aggregate, and (iii) unless the Small World W & L Shareholders have asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months two years of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World W & L Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract
Indemnification by Parent. (a) Parent shall indemnify and hold Swan, the Small World Swan Shareholders and Small WorldSwan's directors, officers and employees (collectively, the "Small World Swan Indemnified Parties") harmless from and against, and agree promptly to defend each of the Small World Swan Indemnified Parties from and reimburse each of the Small World Swan Indemnified Parties for, any and all losses, damages, costs, expenses, liabilities, obligations and claims of any kind (including, without limitation, reasonable attorney fees and other legal costs and expenses) (collectively a "Small World Swan Loss") that any of the Small World Swan Indemnified Parties may at any time suffer or incur, or become subject to, as a result of or in connection with:
(i) any breach or inaccuracy of any of the representations and warranties made by Parent or Sub in or pursuant to this Agreement, or in any instrument, certificate or affidavit delivered by Parent or Sub at the Closing in accordance with the provisions hereof;
(ii) any failure by Parent or Sub to carry out, perform, satisfy and discharge any of its respective covenants, agreements, undertakings, liabilities or obligations under this Agreement or under any of the documents and materials delivered by Parent pursuant to this Agreement; and
(iii) any suit, action or other proceeding arising out of, or in any way related to, any of the matters referred to in this Section 8.1.
(b) Notwithstanding any other provision to the contrary Parent shall not have any liability under Section 8.1(a) above (i) unless the aggregate of all Small World Swan Losses for which Parent would be liable but for this sentence exceeds, on a cumulative basis, an amount equal to $50,000100,000, and then only to the extent of such excess, (ii) for amounts in excess of $2,250,000 1,000,000 in the aggregate, and (iii) unless the Small World Swan Shareholders have asserted a claim with respect to the matters set forth in Section 8.1(a)(i), or 8.1(a)(iii) to the extent applicable to Section 8.1(a)(i), within 18 months two years of the Effective Time. Notwithstanding any implication to the contrary contained herein, the parties acknowledge and agree that a decrease in the value of Parent Stock would not, by itself, constitute a Small World Swan Loss, unless and to the extent a decrease in the value of Parent Stock has been demonstrated to be as a result of any event described in Sections 8.1(a)(i), (ii) or (iii) above.
Appears in 1 contract