Indemnification by the Shareholders. Subject to the limitations ----------------------------------- set forth in this Article VIII, each of the Principal Shareholders, jointly and severally, hereby indemnify and hold harmless DoveBid and its subsidiaries, affiliates, officers, directors, agents, representatives and employees, and each person, if any, who controls or may control DoveBid within the meaning of the Securities Act (individually, a "DoveBid Indemnitee" and collectively, "DoveBid Indemnitees") from and against any and all claims, demands, actions, causes of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable legal fees and expenses (reduced by any reduction in tax payable by such party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"): (i) arising out of any misrepresentation, or breach of, or default in connection with, any of the representations or warranties, covenants and agreements given or made by the Company or any Shareholder in this Agreement or any certificate, document or instrument delivered by or on behalf of the Company or the Shareholders pursuant to this Agreement; (ii) resulting from any failure of any Shareholder to have good, valid and marketable title to the issued and outstanding shares held by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company; (iii) in connection with a liability of the Company arising out of any acts, events, omissions or transactions occurring prior to the Closing Date, which liabilities were not disclosed to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or (iv) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder in connection with the origin, negotiation or execution of this Agreement or in connection with any transaction contemplated hereby.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dovebid Inc), Stock Purchase Agreement (Dovebid Inc)
Indemnification by the Shareholders. Subject to the limitations ----------------------------------- set forth in this Article VIII, each of the Principal ShareholdersShareholder, jointly and severally, hereby indemnify indemnifies and hold holds harmless DoveBid and its subsidiaries, affiliates, officers, directors, agents, representatives and employees, and each person, if any, who controls or may control DoveBid within the meaning of the Securities Act (individually, a "DoveBid Indemnitee" and collectively, "DoveBid Indemnitees") from and against any and all claims, demands, actions, causes of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable legal fees and expenses (reduced by any reduction in tax payable by such party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):
(i) arising out of any misrepresentation, or breach of, or default in connection with, any of the representations or warranties, covenants and agreements given or made by the Company or any Shareholder in this Agreement or any certificate, document or instrument delivered by or on behalf of the Company or the Shareholders pursuant to this Agreement;
(ii) resulting from any failure of any Shareholder to have good, valid and marketable title to the issued and outstanding shares held by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase PricePrice or the Tax Payment), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company;
(iii) in connection with a liability of the Company arising out of any acts, events, omissions or transactions occurring prior to the Closing Date, which liabilities were not disclosed to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder in connection with the origin, negotiation or execution of this Agreement or in connection with any transaction contemplated hereby.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dovebid Inc), Stock Purchase Agreement (Dovebid Inc)
Indemnification by the Shareholders. Subject to the limitations ----------------------------------- set forth in this Article VIII, each 9 and the Closing of the Principal transactions contemplated by this Agreement, the Shareholders, jointly and severallyseverally but not jointly, hereby indemnify shall indemnify, defend, save and hold harmless DoveBid ADLT and its subsidiaries, affiliates, officers, directors, agents, representatives and employees, Affiliates and each personagents (including, if anyafter Closing, who controls or may control DoveBid within the meaning of the Securities Act RLI) (individually, a "DoveBid Indemnitee" and collectively, "DoveBid ADLT Indemnitees") harmless from and against any and all demands, claims, demands, actions, actions or causes of actionsaction, assessments, losses, costs, damages, liabilities deficiencies, Liabilities, costs and expenses includingexpenses, without limitationincluding reasonable attorneys' fees, interest, penalties, and all reasonable legal fees and expenses amounts paid in investigation, defense or settlement of any of the foregoing (reduced collectively, "ADLT Damages") asserted against, imposed upon, resulting to or incurred by any reduction in tax payable by such party as a result thereofof the ADLT Indemnitees, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):
(i) arising out of any misrepresentationdirectly or indirectly, or breach of, or default in connection with, or arising out of, or resulting from (i) a breach of any of the representations or warranties, covenants and agreements given or warranties made by the Company Shareholders or RLI in Article 2 of this Agreement, except as set forth above in Section 9.1, ("ADLT Warranty Damages"), (ii) a breach of any of the representations and warranties made by any Shareholder in Article 3 of this Agreement Agreement, except as set forth above in Section 9.1 and except that each Shareholder will be severally responsible only for his or her own such representations and warranties and (iii) a breach of any certificate, document or instrument delivered by or on behalf of the Company covenants or agreements made by the Shareholders Shareholders, or a breach of any of the covenants or agreements of RLI to be completed before the Closing, in or pursuant to this Agreement;
(ii) resulting from Agreement and in any failure of any Shareholder Other Agreement to have good, valid and marketable title to the issued and outstanding shares held by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and which the Shareholders or any claim that RLI is a party, except that, with respect to Shareholder covenants, each Shareholder will be severally responsible only for his or her equity interests own covenants or other securities were wrongfully repurchased agreements. The waiver by the Company;
(iii) in connection with a liability of the Company arising out ADLT of any actscondition to Closing set forth in Section 7.2 shall be deemed to be a waiver by ADLT of its rights of indemnification hereunder. All claims made by virtue of such representations and warranties shall be made under, eventsand subject to, omissions or transactions occurring prior the limitations set forth in this Article 9. The Liability of each Shareholder with respect to any claim for indemnity shall be equal to the Closing DateShareholder's Pro Rata Share, which liabilities were not disclosed to DoveBid provided, however, that each Shareholder shall be entirely responsible for any violation of his or her own representations contained in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder in connection with the origin, negotiation or execution of this Agreement or in connection with any transaction contemplated herebyArticle 3.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Advanced Lighting Technologies Inc), Stock Purchase Agreement (Advanced Lighting Technologies Inc)
Indemnification by the Shareholders. Subject The Shareholders severally, but not jointly, agree subsequent to the limitations ----------------------------------- set forth in this Article VIII, each of the Principal Shareholders, jointly and severally, hereby Closing to indemnify and hold harmless DoveBid Lexecon, Nextera and its subsidiaries, affiliates, their respective subsidiaries and Affiliates and persons serving as officers, directors, agentspartners, representatives managers, stockholders, members, employees and employees, and each person, if any, who controls or may control DoveBid within agents thereof (other than the meaning of the Securities Act Shareholders) (individually, individually a "DoveBid IndemniteeNextera Indemnified Party" and collectively, collectively the "DoveBid IndemniteesNextera Indemnified Parties") harmless from and against any and all claims, demands, actions, causes of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable legal fees and expenses (reduced Damages which may be sustained or suffered by any reduction in tax payable by such party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):
(i) them arising out of any misrepresentation, or breach of, or default in connection with, based upon any of the following matters:
(a) fraud, intentional misrepresentation or deliberate and willful breach of any representations or warranties, covenants and agreements given warranties of Lexecon or made by the Company or any Shareholder in Shareholders under this Agreement or in any certificate, document schedule or instrument exhibit delivered by pursuant hereto (collectively, "Fraud Claims");
(b) any breach of any representation or on behalf warranty set forth in Sections 3.3 or 4.2 of the Company this Agreement (collectively, "Ownership Claims");
(c) any Liability of Lexecon or the Shareholders pursuant to this Agreement;
(ii) resulting for Taxes arising from any failure the activities of any Shareholder to have good, valid Lexecon and marketable title to the issued all events and outstanding shares held by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company;
(iii) in connection with a liability of the Company arising out of any acts, events, omissions or transactions occurring prior to the Closing Dateor breach of the representations and warranties set forth in Sections 3.8 or 3.22 hereof or breach of covenant with respect to Taxes or tax related matters (collectively, "Tax Claims");
(d) the Milb▇▇▇ ▇▇▇bilities and any breach of Sections 3.8(t) or 3.30 (claims for which liabilities were not disclosed are referred to DoveBid herein as "Excluded Liability Claims");
(e) any breach of the covenants of the Shareholders contained in this AgreementAgreement ("Covenant Claims"); and
(f) other than Fraud Claims, the Financial StatementsOwnership Claims, the Company Disclosure Letter Tax Claims, Covenant Claims or the Closing Balance Sheet and which Excluded Liability Claims, any other breach of any representation or warranty of the Shareholders had Knowledge of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder in connection with the origin, negotiation or execution of under this Agreement or in connection with any transaction contemplated hereby.schedule or exhibit delivered pursuant hereto, or by reason of any claim, action or proceeding asserted or
Appears in 2 contracts
Sources: Contribution Agreement (Nextera Enterprises Inc), Contribution Agreement (Nextera Enterprises Inc)
Indemnification by the Shareholders. Subject From and after the Closing, the Shareholders agrees to the limitations ----------------------------------- set forth in this Article VIIIindemnify, defend and save Buyer and its Affiliates, and each of the Principal Shareholders, jointly and severally, hereby indemnify and hold harmless DoveBid and its subsidiaries, affiliates, their respective officers, directors, agentsemployees or agents (each, representatives an "Indemnified Buyer Party"), harmless from and employeesagainst, and each personto promptly pay to an Indemnified Buyer Party or reimburse an Indemnified Buyer Party for, if any, who controls or may control DoveBid within the meaning of the Securities Act (individually, a "DoveBid Indemnitee" and collectively, "DoveBid Indemnitees") from and against any and all claimsliabilities (whether contingent, fixed or unfixed, liquidated or unliquidated, or otherwise), obligations, deficiencies, demands, claims, suits, actions, or causes of actionsaction, assessments, losses, costs, damagesexpenses, liabilities interest, fines, penalties, actual or punitive damages or costs or expenses of any and expenses includingall investigations, without limitationproceedings, judgments, environmental analyses, remediations, settlements and compromises (including reasonable legal fees and expenses (reduced of attorneys, accountants and other experts incurred by any reduction indemnified party in tax payable by any action or proceeding between such indemnified party as a result thereof, such tax benefit being determined after taking into account and the effect of recovery under this Article VIII indemnitor or between any indemnified party and calculated at such party's incremental effective rate of taxany third party or otherwise) (individually a "DamagesLoss" and collectively, the "):
Losses") sustained or incurred by any Buyer Indemnified Party relating to, resulting from, arising out of or otherwise by virtue of (i) arising out any misrepresentation or breach of a representation or warranty made herein by the Company or any Shareholder, (ii) any non-compliance with or breach by the Company or any Shareholder, or any Affiliate of the Company or any Shareholder, of any misrepresentationof their respective covenants or agreements contained in this Agreement or the Transaction Documents to be performed by the Company, any Shareholder, or breach of, or default in connection with, any Affiliate of the representations Company or warrantiesany Shareholder, covenants and agreements given (iii) any allegations by a third party that is not an Indemnified Buyer Party which, if true, would constitute a misrepresentation or breach of a representation or warranty made herein by the Company or any Shareholder in this Agreement or any certificate, document non-compliance with or instrument delivered by or on behalf of the Company or the Shareholders pursuant to this Agreement;
(ii) resulting from any failure of any Shareholder to have good, valid and marketable title to the issued and outstanding shares held by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company;
(iii) in connection with a liability of the Company arising out of any acts, events, omissions or transactions occurring prior to the Closing Date, which liabilities were not disclosed to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged breach by the Company or any Shareholder, or any Affiliate of the Company or any Shareholder of any of their respective covenants or agreements contained in this Agreement or the Transaction Documents to be performed by any Shareholder, the Company or any or their respective Affiliates, (iv) any failure to obtain the consents set forth on SCHEDULE 3.7 hereto or (v) any obligation or liability, contingent or otherwise, of the Company or any Shareholder for brokers' or finders' fees or commissions in connection with the origin, negotiation or execution of transactions contemplated by this Agreement or in connection with any transaction contemplated herebythe Transaction Documents.
Appears in 2 contracts
Sources: Stock Purchase Agreement (TMP Worldwide Inc), Stock Purchase Agreement (TMP Worldwide Inc)
Indemnification by the Shareholders. (a) Subject to the limitations ----------------------------------- set forth in provisions of this Article VIII7, each of the Principal Shareholders, Shareholder jointly and severallyseverally will indemnify, hereby indemnify defend and hold harmless DoveBid Buyer, its affiliates, and its subsidiaries, affiliatestheir respective directors, officers, directorsattorneys, agentsaccountants, representatives agents and employees, and each persontheir heirs, if anysuccessors and assigns (collectively, who controls the “Buyer Indemnified Parties”), from, against and in respect of all Losses imposed on, sustained, incurred or may control DoveBid within the meaning suffered by or asserted against any of the Securities Act Buyer Indemnified Parties, relating to or arising out of any of the following (individually, a "DoveBid Indemnitee" individually and collectively, "DoveBid Indemnitees"“Buyer Losses”) described below. Notwithstanding the exclusion of the ▇▇▇▇ Shareholders from and against any and all claims, demands, actions, causes the provisions of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable legal fees and expenses (reduced by any reduction in tax payable by such party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):7, the Shareholders hereby agree that they will be responsible for any pro rata liability they would otherwise have if all Cerebellum Shareholders were included in this Article:
(i) arising out any inaccuracy or breach of any misrepresentation, representation or warranty of a Shareholder contained herein or any certificate furnished by the Shareholders to the Buyer at Closing;
(ii) any breach of, of any covenant or default agreement of any Shareholder contained herein;
(iii) any Taxes payable by the Company (or for which the Company is liable) for any period through and including the Effective Date to the extent set forth in connection with, Section 5.2;
(iv) any Liability of the representations or warranties, covenants and agreements given related to or made by attributable to the Company or any Shareholder in this Agreement to the extent such Liability is attributable to an occurrence or any certificate, document circumstance arising prior to the Effective Date and including without limitation Claims asserted by third parties related to or instrument delivered by or on behalf arising from the operation of the Company or prior to the Effective Date (individually and collectively “Covered Third Party Claims”);
(v) fraud on the part of any of the Shareholders pursuant in connection with the matters relating to this Agreement;.
(iib) resulting The Shareholders shall have no rights of contribution or reimbursement from any failure of any Shareholder to have good, valid and marketable title to the issued and outstanding shares held by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase Price), any rights of a shareholder of Buyer as successor to the Company, including ) with respect to any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the indemnification obligations such Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company;
(iii) in connection with a liability of the Company arising out of any acts, events, omissions or transactions occurring prior to the Closing Date, which liabilities were not disclosed to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder in connection with the origin, negotiation or execution of this Agreement or in connection with any transaction contemplated herebymay have.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Adept Technology Inc)
Indemnification by the Shareholders. Subject to the limitations terms of this ----------------------------------- set forth in this Article VIII10, each of Schedule 2.1, and the Principal ShareholdersEscrow Agreement, from and after the Effective ------------ Time, the Shareholders shall, jointly and severally, hereby indemnify indemnify, defend, save and hold harmless DoveBid Parent, Merger Sub (and its subsidiariesthe Surviving Corporation, affiliates, officers, directors, agents, representatives and employees, and each person, if any, who controls or may control DoveBid within after the meaning consummation of the Securities Act Merger) and any of their successors and assigns (individually, a "DoveBid Indemnitee" and collectively, the "DoveBid IndemniteesParent Indemnified Parties") ), from and against any and all demands, claims, demands, actions, causes of actions, losses, costs, damages, liabilities deficiencies, liabilities, costs and expenses (including, without limitation, reasonable legal attorneys' and accountants' fees and expenses (reduced expenses, and interest and penalties, if any, awarded by any reduction in tax payable by such party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of taxcourt order or otherwise agreed to) (collectively, "Indemnifiable Damages"), suffered by the Parent Indemnified Parties that arise out of or result from any of the following (whether or not a third party initiates a proceeding or claim giving rise to such Indemnifiable Damages):
(ia) arising out any breach of any misrepresentation, or breach of, or default in connection with, any of the representations or representations, warranties, covenants and or agreements given or made by the Company or any Shareholder in this Agreement or any certificate, document or instrument delivered by or on behalf of the Company Seller or the Shareholders pursuant to in this Agreement;
(iib) resulting from any failure breach of any representation, warranty, covenant or agreement made by Seller or any Shareholder to have goodin a document, valid and marketable title to certificate or affidavit delivered by Seller or the issued and outstanding shares held by such ShareholderShareholders at the Closing; or
(c) any expenses, free and clear of Lienscharges, fees, or costs associated with any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking audit of Seller for Taxes related to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company;
(iii) in connection with a liability of the Company arising out of any acts, events, omissions or transactions occurring periods prior to the Closing Date, which liabilities were and any Taxes imposed as a result of any such audit, even though any such audit commences, or a party does not disclosed become aware of any such audit, until after the Closing Date. Any of the foregoing to DoveBid in this Agreementthe contrary notwithstanding, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder Shareholders' indemnification obligations in connection with the origin, negotiation or execution breach of this Agreement any provision of Article 5 or in connection with the breach of any transaction contemplated herebypost closing covenants of either Shareholder shall be several and not joint.
Appears in 1 contract
Sources: Merger Agreement (M2direct Inc)
Indemnification by the Shareholders. Subject to the limitations ----------------------------------- set forth in this Article VIII, each (a) Each of the Principal ShareholdersShareholders hereby agrees, jointly and severally, hereby to indemnify and hold harmless DoveBid Buyer, its affiliates and its subsidiaries, affiliatesand their respective directors, officers, directorsshareholders, agentspartners, representatives and members, employees, and each person, if any, who controls or may control DoveBid within the meaning of the Securities Act agents (individually, a "DoveBid IndemniteeBuyer Indemnified Party" and collectively, "DoveBid IndemniteesBuyer Indemnified Parties") from ), against and against any and in respect of all claimslosses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, actionsassessments, causes of actionsorders, lossesjudgments, costs, damages, liabilities and expenses including, without limitation, reasonable legal fees costs and expenses (reduced including the reasonable fees, disbursements and expenses of attorneys and consultants) of any kind or nature whatsoever, but net of the proceeds from any insurance policies or other third party reimbursement for such loss, to the extent sustained, suffered or incurred by or made against any reduction Buyer Indemnified Party, to the extent based upon, arising out of or in tax payable by such party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):connection with:
(i) arising out any breach of any misrepresentation, representation or breach of, or default in connection with, any of the representations or warranties, covenants and agreements given or warranty made by Seller and the Company or any Shareholder Shareholders in this Agreement or in any schedule, exhibit, certificate, document agreement or other instrument delivered by or on behalf of the Company or the Shareholders pursuant to this Agreement;
(ii) resulting from any failure breach of any Shareholder to have good, valid and marketable title to the issued and outstanding shares held covenant or agreement made by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (Seller or the Purchase Price)Shareholders in this Agreement or in any schedule, any rights of a shareholder of the Companyexhibit, including any optionscertificate, or preemptive rights or rights to notice or to votefinancial statement, any rights under the Company' Articles of Incorporation, bylaws agreement or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Companyinstrument delivered pursuant to this Agreement;
(iii) any claim made by any person or entity which relates to the operation of the business of Seller or the Subsidiaries which arises in connection with a liability or on the basis of the Company arising out of any events, acts, eventsomissions, omissions conditions or transactions any other state of facts occurring prior to on or existing before the Closing Date, which liabilities were not disclosed to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or;
(iv) any undisclosed liabilities;
(v) any liability or obligation arising out of, relating to or resulting from the vehicles, including any vehicle leases, to be retained by the Shareholders as set forth on Schedule 6.4; ------------
(vi) any liability or obligation arising out of, relating to or resulting from the CFA Dispute as defined in Section 6.17;
(vii) any liability or obligation arising out of, relating to or resulting (A) from Seller's or the Subsidiaries' Taxes, including but not limited to Ohio state sales taxes, attributable to the periods, or portions thereof, ending on or before the Closing (which has not been paid or provided for or reserved against by Seller in the Base Balance Sheet included in the Financial Statements) or (B) as a result of or relating to any breach of any representation, warranty or covenant with respect to Taxes or tax related matters;
(viii) any liability or obligation arising out of, relating to or resulting from the Seller's pension plan and profit sharing plans described in Section 6.13;
(ix) any liability or obligation arising out of, relating to or resulting from the loan receivable of $170,000.00 described in Section 6.15; and
(x) any liability or obligation arising out of, relating to or resulting from any claim by any investment banker, broker, finder bank debt or other agent engaged by the Company or any Shareholder in connection with the origin, negotiation or execution of this Agreement or in connection with any transaction contemplated hereby.Seller (and Subsidiary) indebtedness described on Schedule 6.10. -------------
Appears in 1 contract
Indemnification by the Shareholders. Subject to the limitations ----------------------------------- set forth in of Section 12.01 and the other provisions of this Article VIIIXII, from and after the Closing each of the Principal Shareholders, Shareholder jointly and severally, hereby severally shall indemnify and hold harmless DoveBid Purchaser, Salvage Disposal and its subsidiariestheir respective successors, affiliatesassigns, shareholders, employees, officers, directors, agentsmembers, representatives representatives, Affiliates and employees, and agents (each person, if any, who controls or may control DoveBid within the meaning of the Securities Act (individually, a "DoveBid Indemnitee" and collectively, "DoveBid Indemnitees"“Purchaser Indemnified Party”) from and against any and all claims, demands, actions, causes of actionsdamages, losses, costsobligations, damagesliabilities, liabilities claims, encumbrances, penalties, costs and expenses (including, without limitation, reasonable legal fees attorneys’ fees) including any and expenses (reduced by any reduction in tax payable by such party as a result thereofall actions, such tax benefit being determined after taking into account the effect of recovery under this Article VIII suits, investigations, proceedings, demands, assessments, audits and calculated at such party's incremental effective rate of tax) ("Damages"):
(i) arising out of any misrepresentation, or breach of, or default in connection with, judgments with respect to any of the representations foregoing (collectively, “Losses”), arising from or warranties, covenants and agreements given relating to (a) any misrepresentation in or breach of any representation or warranty made by the Company or any Shareholder in this Agreement or any certificate, document or instrument delivered by or on behalf Related Agreement; (b) nonfulfillment of any of the Company covenants or the Shareholders pursuant to this Agreement;
(ii) resulting from any failure agreements of any Shareholder to have goodin this Agreement or any Related Agreement; (c) the Excluded Liabilities, valid and marketable title (d) any third party claims naming Purchaser, Salvage Disposal, ▇▇▇▇ or any of their Affiliates relating to the issued and outstanding shares held by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest operation of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased Business by the Company;
(iii) in connection with a liability of Shareholders, Salvage Disposal or ▇▇▇▇ on or prior to the Company Closing Date or arising out of any actsthe transactions entered into by the Shareholders, eventsSalvage Disposal or ▇▇▇▇, omissions or transactions events occurring regarding the Business, on or prior to the Closing Date, which liabilities were not disclosed (e) the actual or alleged presence, release or threat of release of, migration of or exposure to DoveBid any Hazardous Material, including, without limitation, mold, on, in, under or affecting all or any portion of the Real Property or any surrounding areas that resulted from any act or omission of Salvage Disposal or ▇▇▇▇ in this Agreementviolation of Environmental Law or that was present in violation of Environmental Law as of, or prior to, the Financial StatementsClosing Date, and any actual or alleged personal injury or property damage arising out of or related to the presence of any such Hazardous Material on the Real Property as of, or prior to, the Company Disclosure Letter Closing Date and in violation of Environmental Law; (f) any Taxes imposed on Salvage Disposal or ▇▇▇▇, or with respect to the Business, for any period (or portion of any period) ending on or before the Closing Balance Sheet and Date, which are the responsibility of the Shareholders had Knowledge of at the time of the Closing; or
as provided in Section 13.01 hereof, including, without limitation, any (ivi) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder Taxes imposed in connection with the originSection 338(h)(10) Election, negotiation (ii) the transfer of Excluded Assets, (iii) liabilities or execution obligations of this Agreement Salvage Disposal or ▇▇▇▇ with respect to Salvage Disposal’s or ▇▇▇▇’▇ failure to (A) comply with sales tax laws, and (B) collect sales tax in connection with any of its auctions on or prior to the Closing; (g) any Liability, obligation or claim with respect to the ownership or use of the Excluded Assets; (h) any Liability, obligation or claim related to the failure of Salvage Disposal or ▇▇▇▇ to retain, prior to the Closing, any Retained Vehicle in accordance with the directions set forth in any Retention Notice; (i) the assertion or recovery against Purchaser, any Subsidiary of Purchaser, Salvage Disposal or ▇▇▇▇ in connection with any employment-related claims arising out of or in connection with facts, circumstances or conditions existing on or prior to the Closing, which are (i) filed prior to the Closing Date or (ii) filed after the Closing Date but which arose from facts and circumstances or an event which existed prior to the Closing Date; (j) Encumbrances on the Assets which attached prior to the Closing and which are not disclosed in the Disclosure Schedules of the Shareholders; (k) any warranty claims relating to Vehicles or other Inventory sold by Salvage Disposal or ▇▇▇▇ prior to Closing; (l) the costs for any improvements, alterations or repairs to any Real Property required, by reason of any action or inaction of Salvage Disposal or ▇▇▇▇ prior to the Closing (except for such costs for any improvements, alterations or repairs to any Real Property that would not be required but for the actions or inactions of Purchaser following the Closing), to cause such Real Property to comply with the provisions of Title II of the Americans With Disabilities Act of 1990 (42 U.S.C. § 1201 et seq.) and the regulations and guidelines promulgated thereunder (but only to the extent Salvage Disposal, ▇▇▇▇ or Purchaser is required by a Governmental Entity to effect such improvements, alterations or repairs); (m) Salvage Disposal’s or ▇▇▇▇’▇ disposal, emission, discharge, handling, storage, or transportation prior to the Closing of any Hazardous Materials in violation of Environmental Law or its arranging for disposal, discharge, storage or release prior to the Closing of any Hazardous Material in violation of Environmental Law; (n) the Terminated Agreements; (o) the Existing Real Estate Leases; (p) the Indebtedness of Salvage Disposal or ▇▇▇▇ set forth in the Payoff Letters; (q) the Transaction Expenses; and (r) Salvage Disposal’s or ▇▇▇▇’▇ violation of any Environmental Law or Environmental Requirements, including, without limitation, all matters set forth in Schedule 4.17. Notwithstanding the foregoing obligations of the Shareholders set forth in this Section 12.02, the Shareholders shall only be obligated to indemnify or hold harmless any Purchaser Indemnified Party for any Losses (i) related to, arising out of, or in connection with (A) any act or omission of the Shareholders, Salvage Disposal or ▇▇▇▇ occurring on or prior to the Closing, (B) any fact, circumstance, event or condition existing or occurring on or prior to the Closing or (C) any transaction contemplated herebyentered into, or the operation of the Business, on or prior to the Closing; (ii) in the case of items (c) through (q) of the preceding sentence, to the extent such Losses arise out of Liabilities incurred by Salvage Disposal, ▇▇▇▇, Purchaser or any of their Affiliates after the Closing; and (iii) in the case of items (e) and (m) of the preceding sentence, to the extent such Losses are for reasonable costs of legally necessary remediation undertaken, whether voluntarily or involuntarily, after the Closing.
Appears in 1 contract
Indemnification by the Shareholders. (a) Subject to the limitations ----------------------------------- set forth in this Article VIII, the Shareholders shall jointly and severally indemnify and hold Buyer and its officers, directors, employees, agents, advisers, representatives and Affiliates (each, a “Buyer Indemnified Party” and collectively, the “Buyer Indemnified Parties”) harmless from and against, and shall reimburse the Buyer Indemnified Parties for, any and all losses, claims, damages, debts, liabilities, obligations, judgments, orders, settlement payments, awards, writs, injunctions, decrees, fines, penalties, Taxes, costs and expenses (including legal and accounting fees and expenses), whether absolute, incidental, punitive or otherwise, and whether or not involving a Third Party Claim (collectively, “Losses”), arising out of or relating to:
(i) any Breach of any representation, warranty or certification made by or on behalf of the Company or any Company Subsidiary in this Agreement (other than any representation or warranty made in Article IIA) or in any other Operative Document;
(ii) any Breach by the Company or any Company Subsidiary of any covenant, agreement or other obligation in this Agreement or in any other Operative Document;
(iii) any and all Pre-Closing Taxes;
(iv) any Transaction Costs of the Company or any Company Subsidiary (including all costs and expenses of any type whatsoever (including Taxes) arising out of or related to the Minority Buyouts and the Subsidiary Option Cancellations), other than the amounts set forth as Transaction Costs on the Transaction Costs Spreadsheet that are deducted from the Purchase Price pursuant to Section 1.2.1(a);
(v) the Incentive Payment Obligations set forth in Section 6.17;
(vi) any Severance Payment Obligations not included on Schedule 2.27 to the Disclosure Memorandum;
(vii) the granting, exercise, transfer, cancellation or otherwise of any Company Stock Purchase Rights or Company Subsidiary Stock Purchase Rights (other than the Company Subsidiary Stock Purchase Rights set forth in the Deed of Pre-emption) or the stock or rights related thereto, on or after the date of this Agreement;
(viii) any Claim brought by a third party based upon, arising out of or relating to the operations of the business, or any other action, activity or omission, of the Company or any of the Company Subsidiaries or any of their Affiliates on or prior to the Closing Date;
(ix) any item set forth on Schedule 8.2(a)(ix) to the Disclosure Memorandum; and
(x) any Fraud by the Company or any Company Subsidiary or Shareholder.
(b) Subject to the limitations set forth in this Article VIII, each of the Principal ShareholdersShareholder shall, jointly severally and severallynot jointly, hereby indemnify and hold the Buyer Indemnified Parties harmless DoveBid from and its subsidiaries, affiliates, officers, directors, agents, representatives and employeesagainst, and each personshall reimburse the Buyer Indemnified Parties for, if any, who controls or may control DoveBid within the meaning of the Securities Act (individually, a "DoveBid Indemnitee" and collectively, "DoveBid Indemnitees") from and against any and all claimsLosses, demands, actions, causes arising out of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable legal fees and expenses (reduced by any reduction in tax payable by such party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):or relating to:
(i) arising out any Breach of any misrepresentationrepresentation, warranty or breach of, or default in connection with, any of the representations or warranties, covenants and agreements given or certification made by the Company such Shareholder in Article IIA or in any other Operative Document; or
(ii) any Breach by such Shareholder of any covenant, agreement or other obligation of such Shareholder in this Agreement or any certificate, document or instrument delivered by or on behalf of the Company or the Shareholders pursuant to this Agreement;
(ii) resulting from any failure of any Shareholder to have good, valid and marketable title to the issued and outstanding shares held by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or in any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company;
(iii) in connection with a liability of the Company arising out of any acts, events, omissions or transactions occurring prior to the Closing Date, which liabilities were not disclosed to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder in connection with the origin, negotiation or execution of this Agreement or in connection with any transaction contemplated herebyOperative Document.
Appears in 1 contract
Indemnification by the Shareholders. Subject From and after the Closing, subject to the limitations ----------------------------------- set forth in provisions of this Article VIIIARTICLE X, each of the Principal ShareholdersShareholders shall, jointly severally (based on their respective Pro-Rata Percentages) and severallynot jointly, hereby indemnify Purchaser, Parent and hold harmless DoveBid and its subsidiaries, affiliates, officers, directors, agents, representatives and employeestheir Affiliates (including the Company), and each personof their respective Representatives, if anysuccessors, who controls or may control DoveBid within the meaning of the Securities Act and assigns (individuallyeach, a "DoveBid Indemnitee" “Purchaser Indemnified Party”) against, be liable to Purchaser Indemnified Parties for, and collectively, "DoveBid Indemnitees") hold each Purchaser Indemnified Party harmless from and against any and all claims, demands, actions, causes of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable legal fees and expenses (reduced by any reduction in tax payable Losses suffered or incurred by such party Purchaser Indemnified Party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):or arising out of:
(ia) arising out any breach of or inaccuracy in any misrepresentation, representation or breach of, or default in connection with, any of the representations or warranties, covenants and agreements given or warranty made by the Company in ARTICLE III or in any Shareholder in this Agreement or any certificate, document or instrument certificate delivered by or on behalf of the Company or the Shareholders pursuant to this Agreement;
(iib) resulting from any failure breach of or inaccuracy in any Shareholder to have good, valid and marketable title to the issued and outstanding shares held representation or warranty made by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders in ARTICLE IV or in any claim that his or her equity interests or other securities were wrongfully repurchased by the Companycertificate delivered pursuant to this Agreement;
(iiic) in connection with a liability any breach of the Company arising out of any acts, events, omissions or transactions occurring prior to the Closing Date, which liabilities were not disclosed to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged failure by the Company or any Shareholder in connection with or the origin, negotiation or execution of Shareholders Representative at any time under this Agreement to perform of any covenant or agreement of the Company for the period on or prior to Closing or any Shareholder at any time contained in connection with this Agreement;
(d) any transaction contemplated herebyClosing Date Indebtedness of the Company outstanding as of the Closing and not taken into account in calculating the Closing Date Indebtedness for purposes of the Final Consideration (which calculation shall include all of the Indebtedness set forth on Schedule 10.2(d));
(e) any Transaction Expenses not taken into account in calculating the Final Consideration;
(f) any Indemnified Taxes; and
(g) the Third-Party Litigation and the failure by any Shareholder or the Shareholders Representative to perform any covenant or agreement contained in Section 6.16.
Appears in 1 contract
Sources: Stock Purchase Agreement (Proficient Auto Logistics, Inc)
Indemnification by the Shareholders. Subject to On the limitations ----------------------------------- set forth in this Article VIIIcondition that the Closing is effected, each of the Principal Shareholders, jointly and severallyseverally (subject to the limitations contained in Section 10.7), hereby shall indemnify and hold harmless DoveBid NIM, MergerCo and its subsidiariestheir respective Affiliates, affiliatesand each of their respective directors, officers, directorsemployees, agents, representatives representatives, stockholders and employees, controlling parties and all of their successors and assigns (each person, if any, who controls or may control DoveBid within the meaning of the Securities Act (individually, a "DoveBid Indemnitee" and collectively, "DoveBid IndemniteesMergerCo Indemnified Person") from and defend each of them from and against and will pay each MergerCo Indemnified Person for any and all demands, claims, demands, actions, causes of actionsliabilities, losses, costs, damages, liabilities and expenses damages (including, without limitation, special, consequential and punitive damages), costs, penalties and expenses (including, without limitation, interest, costs of investigation and defense and the reasonable legal fees and expenses of attorneys and other professionals and experts), whether or not involving a Third Party Claim (reduced by without regard to any reduction in tax payable by such party Tax benefit that may be obtained as a result thereof, such tax benefit being determined after taking into account the effect thereof but net of recovery under this Article VIII and calculated at such party's incremental effective rate of taxany insurance proceeds actually collected by a MergerCo Indemnified Party with respect thereto) (collectively, "DamagesLosses"):
(i) validly asserted against, imposed upon or incurred by any such MergerCo Indemnified Person, directly or indirectly, resulting from or arising out of any misrepresentation, or breach of, or default in connection with, with or relating to any of the representations following:
(a) any inaccuracy or warranties, covenants and agreements given breach of any representation or made by the Company or any Shareholder in this Agreement or any certificate, document or instrument delivered by or on behalf warranty of the Company or the Shareholders pursuant to this Agreementcontained herein;
(iib) resulting from any failure breach of any Shareholder to have goodagreement, valid and marketable title to the issued and outstanding shares held by such Shareholder, free and clear of Liens, covenant or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest obligation of the Company (or the Purchase Price)Shareholders contained herein;
(c) any liability, any rights of a shareholder obligation or responsibility of the Company, including any options, Company or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or which in any claim that his way relates to the Business or her equity interests or other securities were wrongfully repurchased by the Company;
's assets (iiiincluding, without limitation, any liability for Taxes or withholdings) in connection with a liability arising out of the operation of the Company arising out of any acts, events, omissions or transactions occurring prior to the Closing DateDate which liability, which liabilities were obligation or responsibility is not expressly disclosed in this Agreement or in the schedules hereto, including any claims on account of Closing Date Payables not disclosed on the Working Capital Statement;
(d) any and all claims, actions, suits or any administrative, arbitration, governmental or other proceedings or investigations against any MergerCo Indemnified Person or in which any MergerCo Indemnified Person becomes involved that relate to DoveBid in this Agreementthe Company, the Financial Statements, the Company Disclosure Letter Shareholders or the Closing Balance Sheet and Business in which the Shareholders had Knowledge principal event giving rise thereto occurred prior to the Closing Date or which result from or arise out of at any action or inaction prior to the time Closing Date of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any director, officer, employee, agent, representative or subcontractor of the Company or either Shareholder or a state of facts prior to Closing Date, and which is not expressly disclosed in this Agreement or in the Disclosure Statement schedules;
(e) any claim, action, suit or other proceeding asserting that any sales tax is payable in connection with the origintransactions contemplated hereby;
(f) any matters relating to VF Business Advisory Group or Valley Forge Business Development Fund, negotiation whether or execution of not disclosed in this Agreement or in connection the Disclosure Statement schedules;
(g) any matters relating to any real estate development activities engaged in by the Company and/or either Shareholder, whether or not disclosed in this Agreement or in the Disclosure Statement schedules;
(h) any claims of former shareholders of the Company or any Company Subsidiary arising out of their ownership interests in the Company or an Company Subsidiary; and
(i) any obligations of the Company or any Company Subsidiary to either Shareholder under their respective Salary Continuation Plan Agreements with any transaction contemplated herebythe Company (previously terminated), whether or not disclosed in this Agreement or in the Disclosure Statement schedules. If an indemnity payment is made resulting from a breach of a representation or warranty contained in Section 4.11 and MergerCo or NIM realizes a corresponding "Tax Benefit" (for example, an indemnity payment is made because a deduction is disallowed in one period but the deduction will be allowed in a later period), MergerCo or NIM will refund an amount up to the lesser of (i) the indemnity payment or (ii) the related Tax Benefit upon filing its tax returns for the period in which such Tax Benefit is realized. The Tax Benefit shall be deemed to be realized in the period when NIM or MergerCo realizes an actual reduction in Income Tax payable or receives a refund of Tax. The refund for the Tax Benefit will be calculated based on NIM's highest marginal tax rates in the period in which the Tax Benefit is realized, at MergerCo's highest marginal Tax rates if the Tax Benefit is realized in a period when MergerCo files an income tax return that is not consolidated with NIM, or at the Company's highest marginal tax rates if the Tax Benefit is realized by carrying a net operating loss back to a period before Closing.
Appears in 1 contract
Sources: Merger Agreement (National Investment Managers Inc.)
Indemnification by the Shareholders. Subject to the limitations ----------------------------------- set forth in this Article VIII, each of the Principal (a) The Shareholders, jointly and severally, hereby agree to and shall indemnify the Purchaser, the Purchaser Parent, and hold harmless DoveBid the Companies (and its subsidiaries, affiliates, their respective officers, directors, employees, agents, representatives and employeesshareholders, Subsidiaries, Affiliates, representatives, successors, and assigns) (each person, if any, who controls or may control DoveBid within the meaning of the Securities Act (individually, a "DoveBid Indemnitee" “Purchaser Indemnified Party” and collectively, "DoveBid Indemnitees"the “Purchaser Indemnified Parties”) from and the New Operator and the New Operator Parent (and their respective officers, directors, managers, members, employees, agents, shareholders, Subsidiaries, Affiliates, representatives, successors, and assigns) (each individually, a “New Operator Indemnified Party” and collectively, the “New Operator Indemnified Parties”) and defend and hold the Purchaser Indemnified Parties and the New Operator Indemnified Parties harmless against any Losses that the Purchaser Indemnified Parties and all claimsthe New Operator Indemnified Parties suffer, demands, actions, causes of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable legal fees and expenses (reduced by any reduction in tax payable by such party sustain or become subject to as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):
(i) arising out of any misrepresentation, or breach of, or default misrepresentation in connection with, any of the representations or warrantiesbreach of any of the warranties of the Shareholders or the Companies contained in this Agreement, covenants and agreements given (ii) any breach of, or failure to perform, any covenant of any Company or Shareholder contained in this Agreement, (iii) any claim for refund or reimbursement of any payment made to any Company by any Person who was a customer of the Business on or prior to the Closing Date based on preference or priority as asserted by any receiver or trustee in bankruptcy or bankruptcy court, or (iv) any claim for refund or reimbursement of any payment made to any Company by any Person or Governmental Agency before the Closing Date. The Shareholders acknowledge that neither the Purchaser Indemnified Parties nor the New Operator Indemnified Parties shall have any obligation to seek recovery or reimbursement for any Losses from any applicable insurance coverage before seeking recovery from the Shareholders pursuant to this Article XI, except that, with respect to Losses which are covered by the Tail Coverage, the Purchaser Indemnified Parties and the New Operator Indemnified Parties first must seek recovery or reimbursement under the Tail Coverage.
(b) The Shareholders shall not be liable for any Losses pursuant to this Section 11.03 (for indemnification or otherwise) to any Purchaser Indemnified Party or any New Operator Indemnified Party for any Losses to the extent that the aggregate of such Losses exceeds an amount equal to (i) the Purchase Price, less (ii) aggregate amount of the Indebtedness Liability, and, further, shall not be liable (for indemnification or otherwise) unless and until the aggregate Losses suffered by the Purchaser Indemnified Parties or by the New Operator Indemnified Parties shall exceed $100,000 (the “Basket”) and then only to the extent such Losses exceed the Basket; provided, however, that the limitations set forth in this Section 11.03(b) shall not apply to claims based upon (A) fraud or willful misconduct by any Shareholder or any Company, or (B) Sections 3.01(a), 3.02, 3.05, 3.10, 3.14, 3.15, 3.16, 3.18, 3.22, 3.24, 4.01, 4.02, 4.03, 4.04, 7.15(d) or 11.03(a)(iv).
(c) Subject to the terms of Section 11.03(b), the Shareholders, jointly and severally, agree to indemnify any Purchaser Indemnified Party and any New Operator Indemnified Party and defend and hold the Purchaser Indemnified Parties and the New Operator Indemnified Parties harmless against any Liabilities that the Purchaser Indemnified Parties or the New Operator Indemnified Parties suffer, sustain or become subject to as a result of any of the following Liabilities, regardless of whether any such Liabilities result from the (i) breach of a representation or warranty of any Company or any Shareholder as set forth in this Agreement Agreement, or (ii) breach of, or failure to perform, any certificate, document covenant of any Company or instrument delivered Shareholder as set forth in this Agreement:
(i) any Liabilities arising out of or relating to the failure to obtain a release of the FET Lien;
(ii) any Liabilities (including any Liability related to any Benefit Plan) for any and all claims by or on behalf of the Company Employees or any Governmental Agency (including the Department of Labor, the IRS and the PBGC) that accrued, arose or relates to any act or omission prior to the Closing, other than (A) those Liabilities related to the COBRA obligations to the M&A Qualified Beneficiaries as set forth in Section 7.02(f), and (B) those other Liabilities not related to a Benefit Plan that arise out of or relate to the termination of the Employees as contemplated by Section 7.02(a) or the Shareholders pursuant to this Agreement;
(ii) resulting from any failure hiring of any Shareholder to have good, valid and marketable title to the issued and outstanding shares held by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased Employees by the CompanyNew Operator;
(iii) in connection with a liability any Liabilities arising from or due to any Collective Bargaining Agreement to which any of the Company Companies is a party and which arise before the Closing Date or which relate to events which occurred before the Closing Date, other than those liabilities solely arising out of or relating to actions taken by the New Operator or the Purchaser;
(iv) any actsLiabilities arising from or due to any Taxes incurred by any Shareholder at any time or by any Company before the Closing Date or which relate to events which occurred before the Closing Date;
(v) any Liabilities accruing, eventsarising out of or relating to any federal, state or local investigation, claim or action against the Companies or the Shareholders or any of the Employees with respect to acts or omissions before the Closing; Date, other than those liabilities solely arising out of or transactions occurring relating to actions taken by the New Operator or the Purchaser;
(vi) any civil or criminal Liabilities occurring, arising out of or relating to any acts or omissions of the Companies or the Shareholder, or their respective officers, directors, managers. members, employees, agents or representatives, with respect to actions or omissions which occur or fail to occur prior to the Closing Date and that violate any constitutional provision, statute, ordinance, Law, interpretation, standard, policy or order of any Governmental Agency, including any Liabilities arising out of or related to litigation or claims pending against any Company as of the Closing Date; and
(vii) any Liabilities not otherwise referred to above in this subsection (c) incurred by any Company, any Shareholder or any Facility accrued prior to the Closing Date, or which liabilities were not disclosed relates to DoveBid in events which occurred before the Closing Date or to any condition that exists at, on or under any Facility as of the Closing Date, other than for those Liabilities (A) which are included on the Closing Date Balance Sheet, as finally determined, (B) which are assumed by the New Operator pursuant to the terms of this Agreement, (C) arising out of or relating to actions required to be taken by the Financial Statements, the Company Disclosure Letter Shareholders or the Companies pursuant to the terms of this Agreement, or (D) arising out of or relating to actions taken by the New Operator or the Purchaser. The Shareholders indemnification obligations under this subsection (c) shall survive the Closing Balance Sheet Date indefinitely.
(d) The Purchaser Indemnified Parties and the Operator Indemnified Parties will not be permitted to each assert indemnification claims against the Shareholders under this Article XI with respect to Losses for which the Purchaser or the Purchaser Parent indemnifies a New Operator Indemnified Party or the New Operator or the New Operator Parent indemnifies a Purchaser Indemnified Party; provided, however, that if the Purchaser or the Purchaser Parent indemnifies a New Operator Indemnified Party or the New Operator or the New Operator Parent indemnifies a Purchaser Indemnified Party as contemplated by this subsection, then the Party making such indemnity shall be entitled to seek indemnification from the Shareholders had Knowledge pursuant to this Article XI for the full amount of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or such indemnity and all other agent engaged by the Company or any Shareholder Losses incurred in connection with claim. If the originPurchaser or the Purchaser Parent indemnifies a New Operator Indemnified Party with respect to a claim made by a New Operator Indemnified Party for which the New Operator Indemnified Party previously has received an indemnification payment from the Shareholders, negotiation then the Purchaser and the Purchaser Parent shall not be permitted to make a claim against the Shareholders to the extent of the duplicable indemnification payment if the Shareholders’ Representative provided written notice to the Purchaser and the Purchaser Parent that the Shareholders made such indemnification payment before the Purchaser or execution the Purchaser Parent makes such duplicative payment. If the New Operator or the New Operator Parent indemnifies a Purchaser Indemnified Party with respect to a claim made by a Purchaser Indemnified Party for which the Purchaser Indemnified Party previously has received an indemnification payment from the Shareholders, then the New Operator and the New Operator Parent shall not be permitted to make a claim against the Shareholders to the extent of the duplicable indemnification payment if the Shareholders’ Representative provided written notice to the New Operator that the Shareholders made such indemnification payment before the New Operator or the New Operator Parent makes such duplicative payment.
(e) If the aggregate Losses incurred by the Purchaser Indemnified Parties with respect to any indemnification claims made pursuant to Section 11.03(a)(iv) become greater than $1,500,000 and if the Shareholders do not timely make any payments required by this Agreement or Article XI, then the Purchaser may, in connection its sole discretion and at its option, direct the Escrow Agent to promptly deliver to the Purchaser the amount owed by the Shareholders to the Purchaser pursuant to this Article XI. If the Purchaser directs the Escrow Agent to deliver such amount to the Purchaser, then the Purchaser shall retain the right to pursue payment from the Shareholders as required by this Article XI, which payment would be deposited in the Escrow Account to replenish the funds paid to the Purchaser with respect to any transaction contemplated herebyindemnification claims made pursuant to Section 11.03(a)(iv) in excess of $1,500,000.
Appears in 1 contract
Sources: Stock Purchase Agreement (Omega Healthcare Investors Inc)
Indemnification by the Shareholders. Subject In the event that the Closing occurs, and subject to the limitations ----------------------------------- expressly set forth in Section 9.6 hereof, the Shareholders will have an obligation, on an individual basis solely in proportion to the aggregate Merger Consideration payable to them pursuant to this Article VIIIAgreement, to indemnify, defend and hold harmless the Purchaser, each of the Principal ShareholdersPurchaser’s Affiliates, jointly the Surviving Company and severally, hereby indemnify and hold harmless DoveBid and its subsidiaries, affiliateseach of their respective directors, officers, directorsemployees, agents, consultants, advisors, representatives and employees, and each person, if any, who controls or may control DoveBid within the meaning of the Securities Act equity holders (individually, a "DoveBid Indemnitee" and collectively, "DoveBid Indemnitees"the “Purchaser Indemnified Parties”) from and against against, and will pay to the Purchaser Indemnified Parties the monetary value of, any and all claims, demands, actions, causes of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable legal fees and expenses (reduced Losses incurred or suffered by any reduction in tax payable by such party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):
(i) Purchaser Indemnified Parties directly or indirectly arising out of any misrepresentation, or breach of, relating to or default in connection with, resulting from any of the representations following:
(a) any inaccuracy in or warrantiesbreach of any representation or warranty of the Company contained in this Agreement, covenants and agreements given any Ancillary Agreement or made in any certificate, instrument or document delivered by the Company or any Shareholder in this Agreement or any certificate, document or instrument delivered by or on behalf of the Company or the Shareholders pursuant to connection with this Agreement;
(iib) resulting from the nonfulfillment, nonperformance or other breach of any covenant or agreement of the Company contained in this Agreement, any Ancillary Agreement or in any document delivered pursuant hereto;
(c) the Shareholder Representative’s performance of his or her obligations under this Agreement;
(d) Intentionally omitted.
(e) any failure of any Shareholder to have good, valid and marketable title to the issued and outstanding shares held by of Company Capital Shares or Options issued in the name of such Shareholder, holder free and clear of Liens, or all Encumbrances;
(f) any claim by a current any Shareholder or former shareholdershareholder of the Company, or any other personPerson, firm, corporation or entity, seeking to assert or based upon (i) ownership or rights to ownership of any equity interest of the Company securities, (or the Purchase Price), ii) any rights of a shareholder Shareholder (other than the right to receive such Shareholder’s portion of the CompanyMerger Consideration pursuant to this Agreement), including any optionsoption, or preemptive rights or rights to notice or to vote, (iii) any rights under the Company' Articles certificate of Incorporationincorporation and bylaws, bylaws in effect as of immediately prior to the Effective Time, or other charter documents, any right under any agreement among the Company and the Shareholders or (iv) any claim that his his, her or her its equity interests or other securities were wrongfully repurchased by the Company;
(iiig) in connection with a any assertion or recovery by any Shareholder of the fair value, interest, and expenses or other amounts pursuant to dissenters’ rights exercised or purportedly exercised pursuant to the law of the British Virgin Islands (it being understood that any such Losses will not include the pro rata share of the Merger Consideration such asserting or recovering Shareholder would have received pursuant to this Agreement);
(h) any liability of the Company arising out from the failure of any acts, events, omissions or transactions occurring prior the Securityholders to pay capital gains Tax as required by applicable Law in connection with their receipt of the Closing Date, which liabilities were not disclosed to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter Merger Consideration or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the ClosingOption Consideration, as applicable; orand
(ivi) resulting from any claim by a holder of Convertible Options described in Section 2.2(a)(iii)(A) for the 12-month delay in paying the Initial Option Consideration to such holder or any investment bankerLosses related to remitting the Option Consideration to the holders of Convertible Options described in Section 2.2(a)(iii)(A). For purposes of this Section 9.1, brokeronce it has been established that there has been a breach of any representation or warranty, finder or nonfulfillment, nonperformance or other agent engaged breach of any covenant or agreement by the Company Company, as such provisions are written (including any materiality or “Material Adverse Effect” qualifications thereto), the amount of any Shareholder Losses arising from such breach of any representation or warranty, or nonfulfillment, nonperformance or other breach of any covenant or agreement by the Company, will be determined without regard to any materiality, “Material Adverse Effect” or similar qualification in connection with the originsuch representation, negotiation warranty, covenant or execution of this Agreement or in connection with any transaction contemplated herebyagreement.
Appears in 1 contract
Indemnification by the Shareholders. Subject to After the limitations ----------------------------------- set forth in this Article VIIIClosing, the Purchaser and its Affiliates (including, after the Closing, the Company), officers, directors, employees, agents, successors and assigns (each a “Purchaser Indemnified Party” and collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless by each of the Principal Shareholders, jointly and severally, hereby indemnify and hold harmless DoveBid and its subsidiaries, affiliates, officers, directors, agents, representatives and employees, and each person, if any, who controls or may control DoveBid within the meaning of the Securities Act (individually, a "DoveBid Indemnitee" and collectively, "DoveBid Indemnitees") from and against for any and all claims, demands, actions, causes of actionsLiabilities, losses, damages of any kind, diminution in value, claims, costs, damagesexpenses, liabilities fines, fees, deficiencies, interest, awards, judgments, amounts paid in settlement and expenses penalties (including, without limitation, reasonable legal attorneys’, consultants’ and experts’ fees and expenses and other costs of defending, investigating or settling claims) actually suffered or incurred by them (reduced including, without limitation, in connection with any action brought or otherwise initiated by any reduction in tax payable by such party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of taxthem) ("Damages"):hereinafter, “Loss(es)”), arising out of or resulting from:
(i) arising out any inaccuracy in or breach (or any claim by any third party alleging or constituting an inaccuracy or breach) of any misrepresentation, representation or breach of, or default in connection with, any warranty of the representations or warranties, covenants and agreements given or made by the Company or any Shareholder of the Shareholders, as of the date of this Agreement, contained in this Agreement or in the Ancillary Agreements or any certificate, document or other instrument delivered by or on behalf of the Company or the Shareholders pursuant to this Agreement;
(ii) resulting from any failure breach of any Shareholder to have good, valid and marketable title to covenant or agreement made by the issued and outstanding shares held by such Shareholder, free and clear of Liens, Company or any claim by a current of the Shareholders in this Agreement or former shareholder, in the Ancillary Agreements or any other person, firm, corporation or entity, seeking instrument delivered pursuant to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Companythis Agreement;
(iii) in connection with Losses from breach of contract or other claims made by any party alleging to have had a liability contractual or other right to acquire Company Common Stock or any of the Company’s Assets and Properties;
(iv) Losses with respect to any Company Expenses required to be paid by the Shareholders pursuant to Section 5.3;
(v) Losses with respect to any Contract resulting from, relating to or arising out of any acts, events, omissions or transactions occurring prior to the Closing Date, which liabilities were not disclosed to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time conduct of the Company’s business, including without limitation, Losses incurred as the result of any audit, renegotiation, termination, breach (other than breaches which occur after the Closing), amendment or adjustment of any Contract; or
(ivvi) resulting from any claim by any investment banker, broker, finder or other agent engaged by Losses with respect to the litigation described in Section 7.2 of the Company or any Shareholder in connection with the origin, negotiation or execution of this Agreement or in connection with any transaction contemplated herebyDisclosure Schedule.
Appears in 1 contract
Indemnification by the Shareholders. Subject to the limitations ----------------------------------- set forth in this Article VIII, each of the Principal (a) The Shareholders, jointly and severally, hereby indemnify agree to indemnify, hold harmless, defend and hold harmless DoveBid bear all costs of defending Buyer and its subsidiariesrespective past, affiliatespresent and future employees, directors, officers, stockholders, agents and attorneys , from, against and with respect to any and all damage, loss, deficiency, expense (including any reasonable attorney and accountant fees, legal costs or expenses), action, suit, proceeding, demand, assessment or judgment to or against Buyer, together with their respective past, present and future employees, directors, officers, stockholders, agents, representatives attorneys, successors and employeesassigns, and each person, if any, who controls or may control DoveBid within the meaning of the Securities Act (individually, a "DoveBid Indemnitee" and collectively, "DoveBid Indemnitees"“Buyer’s Aggregate Net Loss”) from and against any and all claims, demands, actions, causes arising out of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable legal fees and expenses (reduced by any reduction or in tax payable by such party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):connection with:
(i) arising out Any breach or inaccuracy of any misrepresentation, representation or breach of, or default in connection with, any warranty of the representations or warranties, covenants and agreements given or made by the Company or any Shareholder Sellers contained in this Agreement or any certificate, document or instrument delivered by or on behalf of the Company or the Shareholders pursuant to this Agreement;
(ii) resulting from any failure of any Shareholder to have good, valid and marketable title to the issued and outstanding shares held by such Shareholder, free and clear of Liens, or any Any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon person asserting any ownership interest in or rights to ownership of the Business or to acquire any equity interest of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Companyits Subsidiaries;
(iii) in connection with a liability Fees and expenses of the Company arising out of any acts, events, omissions or transactions occurring prior to the Closing Date, which liabilities were not disclosed to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
(iv) resulting from any claim persons engaged by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder Seller in connection with the origin, negotiation or and execution of this Agreement or in connection with any transaction consummation of the transactions contemplated hereby;
(iv) business activities of the Company prior to the Closing Date including, but not limited to, those arising from any services or products provided by Company prior to the Closing Date (excluding however, customary warranty and service work performed by the Company in the ordinary course of business);
(v) any claims by third parties made against the Company or its Subsidiaries, or the Buyer after the Closing Date arising from or relating to any action, inaction, event, occurrence or circumstance occurring or existing prior to the Closing Date (excluding however, customary warranty and service work performed by the Company in the ordinary course of business); and
(vi) Any violation of, or nonperformance by, the Sellers of any of their respective covenants or agreements contained in this Agreement or in any Related Document.
Appears in 1 contract
Indemnification by the Shareholders. Subject to the limitations limits set ----------------------------------- set forth in this Article VIII9, the Shareholders, pro rata in accordance with their ownership of the applicable Shares, agree to indemnify, defend and hold the Purchaser, and each of the Principal Shareholders, jointly and severally, hereby indemnify and hold harmless DoveBid and its subsidiaries, affiliates, Purchaser's officers, directors, employees, agents, representatives successors and employeesassigns (the Purchaser and such persons are collectively hereinafter referred to as the "Purchaser's Indemnified Persons"), and each person, if any, who controls or may control DoveBid within the meaning of the Securities Act (individually, a "DoveBid Indemnitee" and collectively, "DoveBid Indemnitees") harmless from and against any and all claimsclaim, demandsloss, actionsliability, causes damage or deficiency (including interest, penalties, costs of actionspreparation and investigation, losses, costs, damages, liabilities and expenses including, without limitation, reasonable legal fees and expenses (reduced by any reduction in tax payable by such party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of taxattorneys' fees) (collectively, "DamagesLosses"):
(i) that the Purchaser's Indemnified Persons may suffer, sustain, incur or become subject to arising out of or due to: (a) any misrepresentation, or breach of, or default in connection with, inaccuracy of any representation of the representations or warranties, covenants and agreements given or made by the Company or any and/or such Shareholder in this Agreement or any certificate, document or instrument delivered other agreement contemplated by or on behalf referred to in this Agreement to which such Shareholder is a party, or any schedule or exhibit hereto or thereto, or any certificate delivered pursuant hereto or thereto; (b) the breach of any warranty of the Company and/or such Shareholder in this Agreement or the Shareholders pursuant any other agreement contemplated by or referred to in this Agreement;
(ii) resulting from any failure of any Agreement to which such Shareholder to have good, valid and marketable title to the issued and outstanding shares held by such Shareholder, free and clear of Liensis a party, or any claim by a current schedule or former shareholderexhibit hereto or thereto, or any certificate delivered pursuant hereto or thereto; or (c) the nonfulfillment of any covenant, undertaking, agreement or other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest obligation of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights and/or such Shareholder under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company;
(iii) in connection with a liability of the Company arising out of any acts, events, omissions or transactions occurring prior to the Closing Date, which liabilities were not disclosed to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder in connection with the origin, negotiation or execution of this Agreement or any other agreement contemplated by or referred to in connection this Agreement to which such Shareholder is a party, or any schedule or exhibit hereto or thereto, or any certificate delivered pursuant hereto or thereto not otherwise waived by the Purchaser, including, without limitation, any failure by the Shareholders to pay all Shareholder Acquisition Expenses (as defined in Section 10.1) in accordance with any transaction contemplated herebythe provisions of Section 10.1.
Appears in 1 contract
Indemnification by the Shareholders. Subject to the limitations ----------------------------------- set forth in other terms and conditions of this Article VIIIIX, each of if the Principal Closing occurs, the Shareholders, jointly and severallyseverally (collectively “Shareholders Indemnitors”) agree to indemnify Reliability, hereby indemnify and hold harmless DoveBid and its subsidiariesReliability’s Affiliates, affiliatesM▇. ▇▇▇▇▇▇▇▇, officers, directors, agents, representatives and employeesM▇. ▇▇▇▇▇▇▇▇’▇ Affiliates, and each person, if any, who controls or may control DoveBid within the meaning of the Securities Act their respective Representatives (individually, a "DoveBid Indemnitee" and collectively, "DoveBid the “Reliability Indemnitees"”) against, and agree to hold each of Reliability Indemnitees harmless from and against against, and agree to pay and reimburse each of Reliability Indemnitees for, any and all claimsLosses (in each of the following cases, demands, actions, causes of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable legal together with any out-of-pocket fees and expenses (reduced expenses, including attorneys’ and accountants’ fees), incurred or sustained by, or imposed upon, Reliability Indemnitees based upon, arising out of, with respect to or by any reduction in tax payable by such party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):reason of:
(ia) arising out of any misrepresentation, inaccuracy in or breach of, or default in connection with, of any of the representations or warranties, covenants and agreements given warranties of Maslow or made by the Company or any Shareholder Shareholders contained in this Agreement Agreement, any Transaction Document or in any certificate, document certificate or instrument delivered by or on behalf of the Company Maslow or the Shareholders pursuant to this AgreementAgreement or pursuant to any Transaction Document, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Maslow or the Shareholders pursuant to this Agreement or pursuant to any Transaction Document;
(c) (i) all Taxes of Maslow or relating to the business of Maslow for all Pre-Closing Tax Periods; (ii) resulting from any failure all Taxes of any Shareholder to have goodmember of an affiliated, valid and marketable title consolidated, combined or unitary group of which Maslow (or any predecessor of Maslow) is or was a member on or prior to the issued Closing Date by reason of a liability under Treasury Regulation Section 1.1502-6 or any comparable provisions of foreign, state or local Law; and outstanding shares held (iii) any and all Taxes of any person imposed on Maslow arising under the principles of transferee or successor liability or by such Shareholdercontract, free and clear relating to an event or transaction occurring before the Closing Date;
(d) any violation by the Shareholders or the Surviving Corporation of Liens, any applicable Laws or Governmental Orders in connection with the conduct of the Business after the Closing Date; or
(e) any claim by a current any Person for brokerage or former shareholderfinder’s fees or commissions or similar payments based upon any agreement or understanding made, or reasonably alleged to have been made, by any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership such Person with any of equity interest of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or Maslow (or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company;
(iiiPerson acting on their behalf) in connection with a liability of the Company arising out of any acts, events, omissions or transactions occurring prior to the Closing Date, which liabilities were not disclosed to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder in connection with the origin, negotiation or execution of this Agreement or in connection with any transaction contemplated herebyContemplated Transaction.
Appears in 1 contract
Sources: Merger Agreement (Reliability Inc)
Indemnification by the Shareholders. Subject to (a) Each Shareholder, severally in the limitations ----------------------------------- manner set forth in this Article VIII, each of the Principal Shareholders, jointly Section 10.1(b) and severallySection 10.1(c), hereby indemnify agrees to indemnify, defend and hold harmless DoveBid each member of the Buyer Group, the Surviving Corporation and its subsidiaries, affiliateseach of their respective directors, officers, directorsemployees and controlled or controlling persons ("Buyer's Affiliates") for all losses, agentsliabilities, representatives claims, damages, judgments, awards, costs and employeesexpenses (including without limitation, interest, penalties, court costs and each person, if any, who controls or may control DoveBid within the meaning of the Securities Act attorneys fees and expenses) (individually, a "DoveBid Indemnitee" and collectively, "DoveBid IndemniteesDamages") from and against incurred by, asserted against, resulting to or imposed on any and all claimsmember of the Buyer Group, demandsBuyer's Affiliates or the Surviving Corporation, actionsdirectly or indirectly, causes of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable legal fees and expenses (reduced by any reduction in tax payable by such party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate or arising out of tax) ("Damages"):
(i) arising out the inaccuracy or breach of any misrepresentationrepresentation or warranty of any Shareholder or the Company contained or made in this Agreement (regardless of whether such breach is deemed "material" for purposes of Section 7.2(a)) made by any Shareholder or the Company as of the date of this Agreement or the Closing Date; (ii) the breach by any Shareholder or the Company of any covenant, agreement or obligation of any Shareholder or the Company contained in this Agreement (regardless of whether such covenant is deemed "material" for purposes of Section 7.2(b)) made by any Shareholder or the Company as of the date of this Agreement or the Closing Date; or (iii) any assertion by any past or current stockholder of the Company in their capacity as a stockholder of (A) any claim for appraisal rights for shares of stock of the Company pursuant to the DGCL or any other applicable Law, or breach of, (B) any suit or default in connection with, action relating to the Merger or any of the representations or warranties, covenants and agreements given or made transactions contemplated by the Company or any Shareholder in this Agreement or any certificate, document of the Ancillary Instruments or instrument delivered (C) any suit or action relating to any action taken by or on behalf the stockholders and/or directors of the Company or the Shareholders pursuant to this Agreement;
(ii) resulting from any failure of any Shareholder to have good, valid and marketable title to the issued and outstanding shares held by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase Price), any rights of a shareholder in their capacity as stockholders and/or directors of the Company. Regardless of the foregoing, including any optionshowever, breaches of representations and warranties contained in Sections 4.1, 4.2 or preemptive rights or rights 4.3 hereof shall be subject only to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased several indemnification by the Company;respective Shareholders who shall have made and breached such representations and warranties.
(iiib) in connection with a liability of the Company arising out of With respect to any acts, events, omissions or transactions occurring prior to the Closing Date, which liabilities were not disclosed to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and Damages for which the Shareholders had Knowledge may be liable under this Section 10.1 (other than as set forth in the last sentence of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder in connection with the origin, negotiation or execution of this Agreement or in connection with any transaction contemplated hereby.Section 10.1(a)):
Appears in 1 contract
Sources: Merger Agreement (Playcore Inc)
Indemnification by the Shareholders. Subject to (a) Following the limitations ----------------------------------- set forth in this Article VIIIClosing, each of the Principal Shareholders, jointly and Shareholders shall severally, hereby indemnify in proportion to each Shareholder's Percentage Share (but not jointly) indemnify, defend and hold harmless DoveBid Purchaser and its subsidiarieseach Subsidiary and Affiliate of Purchaser (including the Covered Companies but excluding any Person who owns Equity Interests in any Covered Company other than the Purchaser, affiliates, the Company or any Covered Company) and their respective permitted assigns and their respective officers, directors, agentspartners, representatives shareholders (except any Person who owns Equity Interests in any Covered Company other than the Purchaser, the Company or any Covered Company), employees and employees, and each person, if any, who controls or may control DoveBid within the meaning of the Securities Act agents (individually, a "DoveBid Indemnitee" and collectively, the "DoveBid IndemniteesPurchaser Indemnified Group") from and against any and all claims, demands, actions, causes of actionsobligations, losses, Liabilities, claims, costs, damagesinterest, liabilities awards, judgments, penalties and damages (including reasonable expenses including, without limitation, of investigation and reasonable legal attorney's fees and expenses (reduced by in connection with any reduction in tax payable by such party as a result thereofaction, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of taxsuit or proceeding) (collectively, "Damages"):) incurred or suffered by any member of the Purchaser Indemnified Group based upon or arising out of or in connection with or related to (i) any breach or inaccuracy of the Surviving Representations or the Surviving Covenants of the Company, (ii) the Company Expenses to the extent the actual amount thereof incurred by the Company and the Covered Companies exceeds the aggregate amount of Company Expenses set forth on the Company Expenses Certificate or (iii) any Liability with respect to Swift Creek that is incurred or suffered by any member of the Purchaser Indemnified Group that would have been covered by the ReUse Insurance Policies but for the policy endorsement providing for a $1,000,000 (as opposed to a $250,000) deductible in respect of Swift Creek.
(i) Following the Closing, each Shareholder shall indemnify, defend and hold harmless each member of the Purchaser Indemnified Group from and against any and all Damages incurred or suffered by such member of the Purchaser Indemnified Group based upon or arising out of any misrepresentation, or breach of, or default in connection with, any of the representations or warranties, covenants and agreements given or made by the Company or any Shareholder in this Agreement or any certificate, document or instrument delivered by or on behalf of the Company or the Shareholders pursuant to this Agreement;
(ii) resulting from any failure of any Shareholder to have good, valid and marketable title to the issued and outstanding shares held by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company;
(iii) in connection with a liability of the Company arising out of any acts, events, omissions or transactions occurring prior to the Closing Date, which liabilities were not disclosed to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder in connection with the origin, negotiation or execution of this Agreement or in connection with or related to any transaction contemplated herebybreach by such Shareholder or inaccuracy of such Shareholder's Surviving Representations or Surviving Covenants.
Appears in 1 contract
Indemnification by the Shareholders. Subject to the limitations ----------------------------------- set forth in this Article VIII, each of the Principal Shareholders, jointly and The Shareholders severally, hereby indemnify and not jointly, shall indemnify, defend and hold harmless DoveBid Parent, Acquisition Subsidiary, the Surviving Company and its subsidiaries, affiliates, their respective officers, directors, employees, agents, representatives subsidiaries and employees, and each person, if any, who controls or may control DoveBid within the meaning of the Securities Act (individually, a "DoveBid Indemnitee" and collectively, "DoveBid Indemnitees") affiliates harmless from and against any and all claims, demands, actions, causes of actionsliabilities, losses, costs, damages, liabilities claims, fines, penalties, costs and expenses expenses, including, without limitation, reasonable legal attorneys' and accounting fees and expenses (reduced collectively, "Losses") incurred by Parent, Acquisition Subsidiary, the Surviving Company or any reduction in tax payable by such party as a result thereofof their respective officers, such tax benefit being determined after taking into account the effect directors, employees, agents, subsidiaries or affiliates, arising out of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):
or resulting from (i) arising out any breach of any misrepresentation, representation or breach of, or default in connection with, any of the representations or warranties, covenants and agreements given or warranty made by the Company or any Shareholder the Shareholders contained in this Agreement Agreement, and (ii) the nonperformance or breach of any certificatecovenant, document agreement or instrument delivered obligation to be performed by or on behalf of the Company or the Shareholders pursuant to under this Agreement;
; provided, however, that (iix) resulting from any failure no Shareholder shall be required to indemnify for Losses in excess of any Shareholder to have good, valid and marketable title the percentage of such Losses equal to the percentage of the total Parent Common Stock issued and outstanding shares held in the Merger that is received by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of Shareholder in the Company (or the Purchase PriceMerger Exchange as reflected on Schedule 3.02(b), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company;
(iii) in connection with a liability of the Company except for Losses arising out of any acts, events, omissions or transactions occurring prior to resulting from the Closing Datebreach of such Shareholder's Personal Representations, which liabilities were shall not disclosed be so limited, and (y) no Shareholder shall be required to DoveBid in this Agreementindemnify for any Losses arising out of or resulting from the breach of any other Shareholder's Personal Representations, the Financial Statements, the Company Disclosure Letter and (z) Losses shall be reduced by any Tax Benefit (or net insurance proceeds after deducting any costs of collection) received by Parent or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Surviving Company or any Shareholder in connection with the originclaims giving rise to indemnification hereunder. The obligations of the Shareholders pursuant to this Article VIII shall be several among the Shareholders as provided in Section 8.04. Notwithstanding the foregoing, negotiation if any claim for indemnification is asserted by Parent and/or the Surviving Company against the Shareholders, and the Parent and/or the Surviving Company is covered by an insurance policy for such Losses, Parent and/or the Surviving Company shall use their commercially reasonable efforts to seek indemnification under the applicable insurance policy or execution policies; provided, however, Parent and/or the Surviving Company shall not be obligated to commence any legal proceedings against any insurance provider for indemnification hereunder. Parent and/or the Surviving Company shall give the Shareholder Representative notice of their intention to seek indemnification for such Losses from applicable insurance policies. In the event that Parent and/or the Surviving Company are unable to collect sufficient insurance proceeds to be fully indemnified for their respective Losses, Parent and/or the Surviving Company shall be entitled to receive indemnification pursuant to this Article VIII and shall, as promptly as practicable, assign to the Shareholder Representative, without recourse, their respective claims for the uncollected Losses against the insurance provider or providers. Notwithstanding anything contained herein to the contrary, the indemnification rights under this Article VIII are the sole remedies that the Parent may seek or assert against the Shareholders, and as to Non-Key Shareholders ("Shareholders Other Than Key Shareholders") such indemnification rights shall be limited to a breach of a warranty or representation under Article III.
A. For purposes of this Agreement or in connection with any transaction contemplated hereby.Agreement, "
Appears in 1 contract
Indemnification by the Shareholders. Subject to the limitations ----------------------------------- set forth in this Article VIII, each of the Principal The Shareholders, jointly and severally, hereby unconditionally, absolutely and irrevocably agree to and shall defend, indemnify and hold harmless DoveBid Sterling, Bancshares, and its subsidiariestheir respective Subsidiaries, shareholders, affiliates, officers, directors, employees, counsel, agents, representatives contractors, successors and employeesassigns (collectively referred to as “Sterling’s Indemnified Persons”), from and against, and shall reimburse Sterling’s Indemnified Persons for, each personand every Loss, if anyincluding paid, who controls imposed on or may control DoveBid within the meaning of the Securities Act (individuallyincurred by Sterling’s Indemnified Persons, a "DoveBid Indemnitee" and collectivelydirectly or indirectly, "DoveBid Indemnitees") relating to, resulting from and against any and all claims, demands, actions, causes of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable legal fees and expenses (reduced by any reduction in tax payable by such party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):
(i) or arising out of any misrepresentation, or breach of, or default any allegation by any third party of: (a) any inaccuracy in connection with, any representation or warranty of the representations Company under this Agreement, the schedules hereto or warrantiesany agreement, covenants and agreements given certificate or made other document attached as an exhibit hereto which is delivered or to be delivered by the Company pursuant hereto in any respect, whether or not Sterling’s Indemnified Persons relied thereon or had knowledge thereof, and determined without regard to any materiality or knowledge qualifications contained in or otherwise applicable to such representation or warranty, or any Shareholder in breach or nonfulfillment of any covenant, agreement or other obligation of the Company under this Agreement or any certificateagreement or document delivered pursuant hereto; (b) any undisclosed liabilities, document or instrument delivered by or even if not required to be disclosed on behalf a balance sheet in accordance with GAAP; (c) the business of the Company or the occupancy, condition, management, operation or use of its assets on or prior to the Effective Time; (d) the violation or breach of any Environmental Laws; (e)(i) any taxes the Company may owe or be deemed to owe with respect to any taxable period ending on the day before the Effective Time and the portion through the end of the Closing Date for any taxable period that includes (but does not end on) the Effective Time (“Pre-Closing Period”) including without limitation Taxes made against the Company or the Shareholders pursuant by reason of the agreements or transactions contemplated hereby or relating to this Agreement;
or arising out of the Company’s status as a Subchapter S corporation, and (ii) resulting from any failure and all Taxes of any Shareholder Person (other than the Company) imposed on the Company as a transferee or successor, by contract, or pursuant to have goodany Law, valid and marketable title which Taxes relate to an event or transaction occurring before the Effective Time, to the issued extent such Taxes in clauses (i) and outstanding shares held by (ii) exceed the amount, if any, reserved for such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest Taxes on the face of the Company (Financial Statements or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among otherwise set forth within the Company Disclosure Memorandum, as such reserve is adjusted for the passage of time through the Effective Time in accordance with past custom and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company;
(iii) in connection with a liability practice of the Company arising out in filing their Tax Returns; or (f) the activities of any acts, events, omissions or transactions the Broker-Dealer Representatives occurring prior to the Closing Date, which liabilities were . In the case of any Taxable Period that includes (but does not disclosed to DoveBid in this Agreementend on) the Effective Time (“Straddle Period”), the Financial Statements, amount of any Taxes based on or measured by income or receipts of the Company Disclosure Letter or for the Pre-Closing Balance Sheet and which the Shareholders had Knowledge of at the time Period shall be determined based on an interim closing of the Closing; or
(iv) resulting from any claim by any investment bankerbooks as of the close of business as of the Effective Time, broker, finder or and the amount of other agent engaged by Taxes of the Company or any Shareholder (excluding property Taxes) for a Straddle Period that relates to the Pre-Closing Period shall be allocated based on the relative number of days in connection with the origin, negotiation or execution Pre-Closing Period and the balance of this Agreement or in connection with any transaction contemplated herebythe Taxable Period.
Appears in 1 contract
Indemnification by the Shareholders. Subject to (a) From and after the limitations ----------------------------------- set forth in this Article VIIIFirst Closing, the Shareholders will indemnify, defend and hold harmless Buyer and its Subsidiaries, Affiliates, successors and assigns, and the respective Representatives of each of the Principal Shareholdersforegoing (the “Buyer Indemnified Persons”), jointly and severally, hereby indemnify and hold harmless DoveBid and its subsidiaries, affiliates, officers, directors, agents, representatives and employees, and each person, if any, who controls or may control DoveBid within the meaning of the Securities Act (individually, a "DoveBid Indemnitee" and collectively, "DoveBid Indemnitees") from and against any and all claimsLosses of every kind, demandsnature or description asserted against, actionsor sustained, causes of actionsincurred, lossessuffered or accrued directly or indirectly by, costssuch Buyer Indemnified Person that arise out of, damages, liabilities and expenses including, without limitation, reasonable legal fees and expenses (reduced by any reduction in tax payable by such party relate to or result from or as a result thereof, such tax benefit being determined after taking into account consequence of any of the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):following:
(i) arising out the breach or inaccuracy of any misrepresentation, representation or warranty of the Shareholders contained in ARTICLE IV or any Related Agreement or any schedule or certificate delivered hereunder or thereunder;
(ii) the breach or non-fulfillment of, or default in connection non-compliance with, any agreement, obligation or covenant of the representations or warranties, covenants and agreements given or made by the Company or any Shareholder Shareholders’ Representative contained in this Agreement Agreement;
(iii) any inaccuracies with respect to the First Closing Statement or the Second Closing Statement;
(iv) any certificate, document or instrument delivered claim by or on behalf of any Person (including any current or former holder of any capital stock or equity interest of the Company or any instrument convertible into any capital stock or equity interest of the Company, or any heir, successor, transferee or assignee thereof) regarding this Agreement or the transactions contemplated hereby, including that such Person is entitled to receive any consideration in connection with the transactions contemplated hereby or an amount in excess of the amounts indicated on the First Closing Statement or the Second Closing Statement or that any director of the Company breached his fiduciary duties in connection with the approval of the transactions contemplated hereby; or
(v) the matters listed on Schedule 7.2(a)(v).
(b) In addition to the obligations set forth in Section 7.2(a), from and after the First Closing, each Shareholder, severally and jointly, shall indemnify, defend and hold harmless the Buyer Indemnified Persons from and against any and all Losses of every kind, nature or description asserted against, or sustained, incurred, suffered or accrued directly by, such Buyer Indemnified Person that arise out of, relate to or result from or as a consequence of any of the following:
(i) the breach or inaccuracy by such Shareholder of any representation or warranty made by such Shareholder contained in ARTICLE III; or
(ii) the breach or non-fulfillment of, or non-compliance with, any agreement, obligation or covenant of such Shareholder contained in this Agreement.
(c) Subject in all cases to Section 7.7:
(i) any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(a)(i) (other than Losses resulting from or arising out of any breach or inaccuracy of any Fundamental Representation, the IP Representation or the representations and warranties contained in Section 4.13 (the “Absence of Certain Events Representation”) shall be satisfied solely from the Indemnity Escrow Fund;
(ii) any Losses that a Buyer Indemnified Person is entitled to recover pursuant to Sections 7.2(a)(ii)-(v) or resulting from or arising out of any breach or inaccuracy of any Fundamental Representation or the IP Representation shall be satisfied, at Buyer’s election, (i) from the Indemnity Escrow Fund, (ii) by setting off any amounts owed (or to become due and owing) by Buyer to the Shareholders pursuant to this Agreement or any Related Agreement;
, if any, or (iiiii) resulting from any failure by each Shareholder, severally and jointly, upon demand by wire transfer of any Shareholder immediately available funds to have good, valid and marketable title to the issued and outstanding shares held an account or accounts designated in writing by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the CompanyBuyer Indemnified Person;
(iii) in connection with Any Losses that a liability of Buyer Indemnified Person is entitled to recover pursuant to Section 7.2(b) shall be satisfied, at Buyer’s election, (A) from the Company arising out of Indemnity Escrow Fund, (B) by setting off any acts, events, omissions amounts owed (or transactions occurring prior to become due and owing) by Buyer to the Closing Date, which liabilities were not disclosed Shareholders pursuant to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder in connection with the origin, negotiation or execution of this Agreement or any Related Agreement, if any, or (C) by the Shareholder that committed such breach, upon demand by wire transfer of immediately available funds to an account or accounts designated in connection with any transaction contemplated herebywriting by such Buyer Indemnified Person.
Appears in 1 contract
Indemnification by the Shareholders. Subject to Sections 9.1 and 9.5, the Shareholders (other than those holding Dissenting Shares), severally (i.e., based on the Pro Rata Share) and not jointly, shall indemnify and hold harmless the Acquiror, the Acquiror Sub and their respective officers, directors and Affiliates (the “Acquiror Indemnified Parties”) from and against any Losses incurred by them related to, or arising directly or indirectly out of:
(a) any inaccuracy or breach of a representation or warranty of the Company contained in this Agreement or the Company Documents or contained in a certificate of any officer of the Company delivered pursuant thereto;
(b) any breach of any covenant or obligation of the Company contained in this Agreement or the Company Documents, including for the avoidance of doubt Section 2.3 and any material uncured breach of the Operating Guidelines (subject to any applicable limitations set forth in Section 2.3);
(c) any liability or obligation related to Closing Date Indebtedness, ▇▇▇▇▇ Advance or Unsatisfied Transaction Costs in excess of the amount set forth in the Closing Statement;
(d) any and all Taxes of the Company with respect to Pre-Closing Tax Periods and the portion of any Straddle Period ending on the Closing Date and any and all Tax claims resulting from, arising out of or relating to: (i) any Taxes imposed on the Company with respect to any Pre-Closing Tax Period and the portion of any Straddle Period ending on the Closing Date, (ii) all liability for Taxes of the Company arising (directly or indirectly) as a result of the transactions contemplated hereunder, (iii) any inaccuracy of a representation or warranty or breach of any covenant or obligation, in each case with respect to Taxes set forth herein, (iv) any and all Taxes of any Person (other than the Company) imposed on the Company as a transferee, successor, by contract or pursuant to any law, rule or regulation, which Taxes relate to an event or transaction occurring before the Closing Date, and (v) the Transfer Taxes for which the Shareholders are liable pursuant to Section 5.9(e) hereunder;
(e) any error in the Closing Statement relating to the allocation of the Merger Consideration among the Shareholders; and
(f) fraud or intentional material misrepresentation, including with respect to the operation of the business following the Closing by the Surviving Company. It is further understood and agreed that notwithstanding any several liability set forth above, no Shareholder shall have any liability for any representation, warranty, covenant or agreement that relates specifically to another Shareholder. By way of illustration only, no Shareholder shall be liable for the breach or inaccuracy of the second sentence of Section 3.4 except for the Shareholder for whom such representation was breached or inaccurate and such Shareholder shall be fully liable for such breach or inaccuracy subject to the limitations ----------------------------------- set forth in this Article VIII, each of the Principal Shareholders, jointly and severally, hereby indemnify and hold harmless DoveBid and its subsidiaries, affiliates, officers, directors, agents, representatives and employees, and each person, if any, who controls or may control DoveBid within the meaning of the Securities Act (individually, a "DoveBid Indemnitee" and collectively, "DoveBid Indemnitees") from and against any and all claims, demands, actions, causes of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable legal fees and expenses (reduced by any reduction in tax payable by such party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):
(i) arising out of any misrepresentation, or breach of, or default in connection with, any of the representations or warranties, covenants and agreements given or made by the Company or any Shareholder in this Agreement or any certificate, document or instrument delivered by or on behalf of the Company or the Shareholders pursuant to this Agreement;
(ii) resulting from any failure of any Shareholder to have good, valid and marketable title to the issued and outstanding shares held by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company;
(iii) in connection with a liability of the Company arising out of any acts, events, omissions or transactions occurring prior to the Closing Date, which liabilities were not disclosed to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder in connection with the origin, negotiation or execution of this Agreement or in connection with any transaction contemplated herebyIX.
Appears in 1 contract
Indemnification by the Shareholders. Subject to the limitations ----------------------------------- set forth in this Article VIIISection 7.3, below, each of the Principal ShareholdersShareholders shall (without any right of contribution, indemnification, reimbursement or comparable right against or from the Company or the Surviving Corporation), jointly and severally, hereby indemnify and hold harmless DoveBid Purchaser, Merger Sub, their respective subsidiaries and its subsidiariesAffiliates, affiliates, and their respective officers, directors, employees, agents, representatives and employees, and each person, if any, who controls or may control DoveBid within the meaning of the Securities Act successors in interest (individually, a "DoveBid Indemnitee" and collectively, "DoveBid “Purchaser Indemnitees"”) from and against against, and reimburse them for, any and all claims, demands, actions, causes of actionsClaims, losses, costssuits, Liabilities, Actions or causes of action, lost profits, diminutions in value, assessments, damages, liabilities and expenses includingfines, without limitationTaxes, reasonable legal fees penalties, costs and expenses (reduced including reasonable fees and disbursements of counsel and amounts paid in settlement) (collectively “Losses”) up to the amounts as set forth in Section 7.5, below, incurred or suffered by any reduction in tax payable by such party as a result thereofPurchaser Indemnitees arising out of, such tax benefit being determined after taking into account resulting from, or relating to any of the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):following:
(ia) arising out any and all breaches of any misrepresentation, or breach of, or default in connection with, any of the representations or warrantieswarranties made by the Company and/or the Shareholders in this Agreement or in any of the other instruments, documents and/or agreements and/or certificates delivered by Company and/or the Shareholders in accordance with the terms hereof and/or thereof;
(b) any and all failures by Company and/or the Shareholders to perform or any and all defaults by Company and/or any of the Shareholders in any of its or his or her or their covenants or agreements contained in this Agreement or in any other instrument, document and/or agreements and/or certificates delivered by Company and/or the Shareholders in accordance with the terms hereof and/or thereof;
(c) any and agreements given all Actions and Claims by any Shareholder relating to the Company’s determination of the allocable portion of the Base Merger Consideration or made the Adjusted Merger Consideration that such Shareholder is entitled to receive in connection with the Merger and the Liabilities of the Company with respect thereto;
(d) any and all Actions and Claims against, and Liabilities of the Company imposed and/or sought to be imposed upon, any Purchaser Indemnitee that relate to the Company, the Business and/or the Assets in which the principal event giving rise thereto occurred prior to the Closing Date or which result from or arise out of any action or inaction prior to the Closing Date of the Company or an Affiliate thereof or any director, officer, Company Employee, shareholder, agent or representative of the Company or Affiliate thereof;
(e) (i) any and all Taxes of the Company relating to and/or arising from Pre-Closing Tax Periods, and/or (ii) any Taxes attributable to the consummation of the transactions contemplated by this Agreement (including Transfer Taxes) whether or not disclosed in Section 3.15 of the Disclosure Schedule, or elsewhere and any and all Actions and Claims and Liabilities of the Company with respect thereto;
(f) any and all Actions, Orders and/or Liabilities under any Environmental Laws relating to violations by the Company or any Shareholder in this Agreement predecessor, and/or arising from the presence of Hazardous Substances at any place which is or has been owned, Leased, occupied or operated by the Company or any certificatepredecessor, document or instrument delivered the transportation, treatment, storage or disposal of Hazardous Substances by or on behalf of the Company or any predecessor relating to the Shareholders pursuant period prior to this AgreementClosing;
(g) any and all items set forth in Section 7.1(g) of the Disclosure Schedule;
(h) any and all (i) Indebtedness and/or Liabilities of the Company as of the Closing, (ii) resulting from the Expenses of the Company and/or the Shareholders, (iii) Employee Transaction Related Expenses, (iv) Employee Obligations as of the Closing, and/or (v) Unpaid Tax Obligations as of the Closing;
(i) any failure of and all Actions and/or Claims by (i) any Shareholder to have good, valid and marketable title to the issued and outstanding shares held by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other personAffiliate, firmtrustee or beneficiary of any shareholder, corporation or entity, seeking to assert or based upon ownership any alleged breach of fiduciary duty, usurping corporate opportunity or rights to ownership similar breach of equity interest of the Company (care, loyalty or the Purchase Price)comparable Claims by any officer, any rights of a director or current or former shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company;
(iii) in connection with a liability of the Company arising out of any acts, events, omissions or transactions occurring prior to the Closing DateClosing, which liabilities were whether or not disclosed to DoveBid in connection with this Agreement, the Financial Statements, the Company Disclosure Letter Agreement or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
transactions contemplated by this Agreement and/or (ivii) resulting from any claim by any investment bankerofficer, broker, finder director or other agent engaged current or former shareholder to indemnification or contribution by the Company with respect to acts occurring on or prior to the Closing and the Company’s Liabilities with respect thereto;
(j) any Shareholder and all downward adjustment to the Base Merger Consideration provided for in connection Section 2.5(b), above; and/or
(k) any and all Fulfillment Costs and the Company’s Liabilities with the origin, negotiation or execution of this Agreement or in connection with any transaction contemplated herebyrespect thereto.
Appears in 1 contract
Indemnification by the Shareholders. Subject to On the limitations ----------------------------------- set forth in this Article VIIIcondition that the Closing is effected, each of the Principal Shareholders, jointly and severallyseverally (subject to the limitations contained in Section 10.8), hereby shall indemnify and hold harmless DoveBid the Purchaser and its subsidiariesAffiliates (including the Company), affiliatesand each of their respective directors, officers, directorsemployees, agents, representatives representatives, stockholders and employees, controlling parties and all of their successors and assigns (each person, if any, who controls or may control DoveBid within the meaning of the Securities Act (individually, a "DoveBid Indemnitee" and collectively, "DoveBid IndemniteesPurchaser Indemnified Person") from and defend each of them from and against and will pay each Purchaser Indemnified Person for any and all demands, claims, demands, actions, causes of actionsliabilities, losses, costs, damages, liabilities and expenses damages (including, without limitation, special, consequential and punitive damages), costs, penalties and expenses (including, without limitation, interest, costs of investigation and defense and the reasonable legal fees and expenses of attorneys and other professionals and experts), whether or not involving a Third Party Claim (reduced by after taking into account any reduction in tax payable by such party insurance recovery from any of the Purchaser's insurance policies that insures against the foregoing, but without regard to any Tax benefit that may be obtained as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) (collectively, "DamagesLosses"):
(i) asserted against, imposed upon or incurred by any such Purchaser Indemnified Person, directly or indirectly, resulting from or arising out of any misrepresentation, or breach of, or default in connection with, with or relating to any of the representations following:
(a) any inaccuracy or warranties, covenants and agreements given breach of any representation or made by the Company or any Shareholder in this Agreement or any certificate, document or instrument delivered by or on behalf warranty of the Company or the Shareholders pursuant to this Agreementcontained herein;
(iib) resulting from any failure inaccuracy or breach of any Shareholder to have goodrepresentation or warranty of John Ermilio in the Haddon Agreement, valid and marketable title to excluding the issued and outstanding shares held by such Shareholderrepresentations a▇▇ ▇▇▇▇▇▇▇▇▇s in Article XI thereof (Securities Law Matters Representations);
(c) any breach of any agreement, free and clear of Liens, covenant or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest obligation of the Company (or the Purchase Price)Shareholders contained herein;
(d) any liability, obligation or responsibility of the Company or the Shareholders or which in any way relates to the Business or the Company's assets (including, without limitation, any rights liability for Taxes or withholdings) arising out of a shareholder the operation of the Company prior to the Closing Date which liability, obligation or responsibility is not expressly disclosed in this Agreement or in the Schedules hereto, including any claims on account of Closing Date Payables not disclosed on the Working Capital Statement;
(e) any liability, obligation or responsibility of Haddon or John Ermilio or which in any way relates to the business or assets of ▇▇▇▇▇▇ (▇▇▇luding, without limitation, any liability for Taxes or withholdings) arising out of the operation of Haddon prior to the Closing Date which liability, obligation or responsibility is not expressly disclosed in the Haddon Agreement or in the Schedules thereto;
(f) any and all claims, actions, suits or any administrative, arbitration, governmental or other proceedings or investigations against any Purchaser Indemnified Person or in which any Purchaser Indemnified Person becomes involved that relate to the Company, Haddon, the Shareholders, John Ermilio, the Business or the business of Haddon in which the pri▇▇▇▇▇▇ ▇▇▇▇▇ giving rise thereto occurred prior to the Closing Date or which result from or arise out of any action or inaction prior to the Closing Date of the Company, including any optionsHaddon, or preemptive rights any director, officer, employee, agent, representative or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company;
(iii) in connection with a liability subcontractor of the Company arising out or Haddon or either Shareholder or John Ermilio or a state of any acts, events, omissions or transactions occurring facts prior to the Closing Date, and which liabilities were not is ▇▇▇ ▇▇▇▇▇▇▇▇y disclosed to DoveBid in this Agreement, Agreement or in the Financial Statements, Schedules hereto or in the Company Disclosure Letter Haddon Agreement or in the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the ClosingSchedules thereto; orand
(ivg) resulting from any claim by any investment bankerclaim, brokeraction, finder suit or other agent engaged by the Company or proceeding asserting that any Shareholder sales tax is payable in connection with the origin, negotiation transactions contemplated hereby or execution of under the Haddon Agreement. The Shareholders acknowledge and agree that the Purchaser shall not be required to seek indemnification from John Ermilio prior to seeking indemnification from the Shareholders f▇▇ ▇▇▇ ▇▇▇▇▇s attributable to John Ermilio or Haddon under this Agreement or in connection with any transaction contemplated hereby.Article X.
Appears in 1 contract
Sources: Stock Purchase Agreement (National Investment Managers Inc.)
Indemnification by the Shareholders. Subject to the limitations ----------------------------------- set forth in this Article VIII, each of the Principal Shareholders, jointly and severally, The Shareholders hereby indemnify and agree to jointly and severally hold harmless DoveBid and Buyer, its subsidiariesshareholders, affiliatesdirectors, officers, directorsemployees, attorneys, agents, representatives and affiliates harmless from, against, and in respect of (and shall on demand reimburse any such entity for):
(a) Any and all loss, liability, or damage suffered or incurred by Buyer or its shareholders, directors, officers, employees, attorneys, agents, and each personaffiliates by reason of any untrue representation, if anybreach of warranty or nonfulfillment of any covenant or agreement by the Shareholder, who controls CDFG, or may control DoveBid within the meaning any Subsidiary contained in this Agreement or in any certificate delivered to Buyer pursuant hereto;
(b) Any and all Taxes payable by Buyer or its affiliates or any entity with which any of the Securities Act foregoing are consolidated attributable to the business and operations of CDFG and the Subsidiaries for periods prior to the Closing;
(individuallyc) Any amounts for which CDFG or the Surviving Corporation shall be liable in connection with any appraisal proceeding by shareholders under the Delaware Law, to the extent that the aggregate of such liability exceeds the Market Value (determined as of the -60- 66 date such liability is determined, whether by the judgement of a "DoveBid Indemnitee" court of competent jurisdiction or by settlement) of the shares to which such shareholders would have been entitled hereunder in the absence of such proceeding;
(d) Any amounts (without duplication for any indemnity required under clause (a) hereof) for which CDFG, the Surviving Corporation, First Colonial or any Subsidiary or any of their respective shareholders, directors, officers, employees, attorneys, agents, and collectivelyaffiliates shall be liable in connection with (i) any of the matters set forth on Schedule 3.10 hereof, "DoveBid Indemnitees"(ii) from any matter that, by the terms of the Agreement, was required to have been set forth on Schedule 3.10 hereof, and against (iii) all matters that were not required to be set forth on Schedule 3.10 hereof by virtue of their being Non-Material Claims, in each case to the extent such amounts exceed the sum of (x) any amount paid in connection with such matter by the carrier of CDFG's existing errors and omissions insurance and (y) any deductible applicable thereto under such errors and omissions insurance; and
(e) Any and all actions, suits, proceedings, claims, demands, actionsassessments, causes of actionsjudgments, losses, costs, damages, liabilities costs and expenses including, including without limitation, reasonable legal fees and expenses (reduced by any reduction in tax payable by such party as a result thereofexpenses, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):
(i) arising out of any misrepresentation, or breach of, or default in connection with, incident to any of the representations foregoing or warranties, covenants and agreements given or made by incurred in attempting to oppose the Company or any Shareholder in this Agreement or any certificate, document or instrument delivered by or on behalf of the Company or the Shareholders pursuant to this Agreement;
(ii) resulting from any failure of any Shareholder to have good, valid and marketable title to the issued and outstanding shares held by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company;
(iii) in connection with a liability of the Company arising out of any acts, events, omissions or transactions occurring prior to the Closing Date, which liabilities were not disclosed to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder in connection with the origin, negotiation or execution of this Agreement imposition thereof or in connection with any transaction contemplated herebyinvestigation thereof, or in enforcing this indemnity.
Appears in 1 contract
Sources: Merger Agreement (Vfinance Com)
Indemnification by the Shareholders. Subject to From and after the limitations ----------------------------------- set forth in this Article VIIIClosing, each of the Principal ShareholdersShareholder, jointly severally and severallynot jointly, hereby indemnify agrees to indemnify, defend and hold harmless DoveBid save Parent and its subsidiaries, affiliates, Merger Sub and their officers, directors, agents, representatives and employees, and each personor agents (each, if anyan "INDEMNIFIED PARENT PARTY"), who controls or may control DoveBid within the meaning of the Securities Act (individually, a "DoveBid Indemnitee" and collectively, "DoveBid Indemnitees") harmless from and against against, and to promptly pay to an Indemnified Parent Party or reimburse an Indemnified Parent Party for, any and all claimsliabilities (whether contingent, fixed or unfixed, liquidated or unliquidated, or otherwise), obligations, deficiencies, demands, claims, suits, actions, or causes of actionsaction, assessments, losses, costs, damagesexpenses, liabilities interest, fines, penalties, actual or punitive damages or costs or expenses of any and expenses includingall investigations, without limitationproceedings, judgments, environmental analyses, remediations, settlements and compromises (including reasonable legal fees and expenses (reduced of attorneys, accountants and other experts incurred by any reduction indemnified party in tax payable by any action or proceeding between such indemnified party as a result thereof, such tax benefit being determined after taking into account and the effect of recovery under this Article VIII indemnitor or between any indemnified party and calculated at such party's incremental effective rate of taxany third party or otherwise) (individually a "DamagesLOSS" and collectively, the "):
LOSSES") sustained or incurred by any Parent Indemnified Party relating to, resulting from, arising out of or otherwise by virtue of (i) arising out any misrepresentation or breach of a representation or warranty made herein or in any certificate delivered hereunder by the Company or any Shareholder, (ii) any non-compliance with or breach by the Company or any Shareholder, or any Affiliate of the Company or any Shareholder, of any misrepresentationof their respective covenants or agreements contained in this Agreement to be performed by the Company, any Shareholder, or breach of, or default in connection with, any Affiliate of the representations Company or warrantiesany Shareholder, covenants and agreements given (iii) any allegations by a third party that is not an Indemnified Parent Party which, if true, would constitute a misrepresentation or breach of a representation or warranty made herein by the Company or any Shareholder in this Agreement or non-compliance with or breach by the Company or any certificateShareholder, document or instrument delivered by or on behalf any Affiliate of the Company or the Shareholders pursuant to this Agreement;
(ii) resulting from any failure Shareholder of any Shareholder of their respective covenants or agreements contained in this Agreement to have good, valid and marketable title to the issued and outstanding shares held be performed by such any Shareholder, free and clear of Liensthe Company or any or their respective Affiliates, or (iv) any claim by a current obligation or former shareholderliability, contingent or any other personotherwise, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (or any Shareholder for brokers' or finders' fees or commissions in connection with the Purchase Pricetransactions contemplated by this Agreement. Subject to Section 5.12(d)(iii), any rights of a shareholder the liability of the CompanyShareholders hereunder (and Parent's recourse with respect to the liability of the Shareholders) shall be limited to the Share Consideration, including which shall be valued at the Closing Bide Price of Parent Common Stock on the trading day immediately preceding the date of the written notice delivered pursuant to Section 5.12(c) hereof. "CLOSING BID PRICE" means, for the Parent Common Stock as of any optionsdate, the last closing bid price for such security on the principal securities exchange or trading market where such security is listed or traded (the "PRINCIPAL MARKET') as reported by Bloomberg Financial Markets ("BLOOMBERG"), or preemptive rights or rights to notice or to voteif the foregoing does not apply, the last closing bid price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no closing bid price is reported for such security by Bloomberg, the last closing trade price for such security as reported by Bloomberg, or, if no last closing trade price is reported for such security by Bloomberg, the average of the bid prices of any rights under market makers for such security as reported in the Company' Articles "pink sheets" by the National Quotation Bureau, Inc. If the Closing Bid Price cannot be calculated for such security on such date on any of Incorporationthe foregoing bases, bylaws or other charter documents, any right under any agreement among the Closing Bid Price of such security on such date shall be the fair market value as mutually determined by the Company and the Shareholders or collectively. All such determinations are to be appropriately adjusted for any claim that his or her equity interests stock dividend, stock split or other securities were wrongfully repurchased by the Company;
(iii) in connection with a liability of the Company arising out of any acts, events, omissions or transactions occurring prior to the Closing Date, which liabilities were not disclosed to DoveBid in this Agreement, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
(iv) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder in connection with the origin, negotiation or execution of this Agreement or in connection with any similar transaction contemplated herebyduring such period.
Appears in 1 contract
Sources: Merger Agreement (Vitrix Inc /Nv/)
Indemnification by the Shareholders. Subject to the limitations ----------------------------------- provisions set forth in this Article VIIISection 6.2, each of the Principal Shareholders, jointly and severally, hereby Shareholder will indemnify and hold harmless DoveBid Buyer, its Subsidiaries and its subsidiaries, affiliates, their respective Affiliates and their respective officers, directors, agents, representatives employees and employees, and each person, if any, who controls or may control DoveBid within the meaning of the Securities Act agents (individually, a "DoveBid Indemnitee" “Buyer Indemnified Party” and collectively, "DoveBid Indemnitees"the “Buyer Indemnified Parties”) from and against any and in respect of all claimslosses, liabilities, obligations, damages, deficiencies, actions, suits, proceedings, demands, actionsassessments, causes of actionsorders, lossesjudgments, costsfines, damagespenalties, liabilities and expenses including, without limitation, reasonable legal fees costs and expenses (reduced by including the reasonable fees, disbursements and expenses of attorneys, accountants and consultants) of any reduction in tax payable by such party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) kind or nature whatsoever ("Damages"):
(i) whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing) sustained, suffered or incurred by or made against (collectively “Losses” and individually a “Loss”) any misrepresentation, or breach Buyer Indemnified Party arising out of, based upon or default in connection with, :
(a) any breach of the representations any representation or warranties, covenants and agreements given or warranty made by the Company or by such Shareholder in this Agreement;
(b) any breach of any covenant or agreement made by the Company or by such Shareholder in this Agreement or the Escrow Agreement; and
(c) notwithstanding whether there is a breach of any certificateof the representations and warranties set forth in Section 2 (including Section 2.8) and except to the extent already reflected in the calculation of Closing Net Worth, document any liability for Taxes (or instrument delivered by or on behalf the nonpayment thereof) of the Company for (i) all taxable periods ending on or before the Shareholders pursuant to this Agreement;
Closing Date and (ii) resulting the portion through the end of the Closing Date of any taxable period that includes (but does not end on) the Closing Date (a “Straddle Period”); provided that in no event shall the Shareholders be required to indemnify Buyer for (A) any such Taxes (other than Taxes payable by the Shareholders upon the sale of the Shares to Buyer hereunder) arising from any failure event occurring on the Closing Date but after the Closing which is not in the ordinary course of any Shareholder to have good, valid and marketable title to the issued and outstanding shares held by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase Price), any rights of a shareholder business of the Company, including (B) any optionssuch Taxes that are described in Section 1.7 or (C) any such Taxes arising from a breach described in Section 6.1(a) or (b). For purposes of clause (ii) of the immediately preceding sentence, or preemptive rights or rights the portion attributable to notice or to vote, a Straddle Period of any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company;
(iii) in connection with a liability Income Tax of the Company arising out shall be determined based on an interim closing of the books as of the close of business on the Closing Date (and for such purpose, the taxable period of any actspartnership or other pass-through entity in which the Company holds a beneficial interest shall be deemed to terminate at such time), events, omissions or transactions occurring prior and the portion attributable to a Straddle Period of any other Tax shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction the numerator of which is the number of days in such Straddle Period up to and including the Closing Date, Date and the denominator of which liabilities were not disclosed to DoveBid is the number of days in this Agreement, the Financial Statements, the Company Disclosure Letter entire Straddle Period. Losses described in or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closing; or
arising under subsections (iva) resulting from any claim by any investment banker, broker, finder or other agent engaged by the Company or any Shareholder in connection with the origin, negotiation or execution through (c) of this Agreement or in connection with any transaction contemplated herebySection 6.1 are collectively referred to as “Buyer Indemnifiable Losses.”
Appears in 1 contract
Indemnification by the Shareholders. Subject (1) In addition to and not in lieu of the limitations ----------------------------------- indemnification obligations set forth in this Article VIIISECTION 9.2, each of the Principal ShareholdersShareholders unconditionally, jointly absolutely and severallyirrevocably agree to and shall defend, hereby indemnify and hold harmless DoveBid the Purchaser and its subsidiarieseach of the Purchaser's Subsidiaries, affiliatesshareholders, Affiliates, officers, directors, employees, counsel, agents, contractors, successors, assigns, heirs and legal and personal representatives (the Company, the Purchaser and employees, and each person, if any, who controls or may control DoveBid within such persons are collectively referred to as the meaning of the Securities Act (individually, a "DoveBid Indemnitee" and collectively, "DoveBid IndemniteesPURCHASER'S INDEMNIFIED PERSONS") from and against against, and shall reimburse the Purchaser's Indemnified Persons for, each and every Loss, paid, imposed on or incurred by the Purchaser's Indemnified Persons, directly or indirectly, relating to, resulting from or arising out of, or any and all claims, demands, actions, causes of actions, losses, costs, damages, liabilities and expenses including, without limitation, reasonable legal fees and expenses (reduced allegation by any reduction in tax payable by such third party as a result thereof, such tax benefit being determined after taking into account the effect of recovery under this Article VIII and calculated at such party's incremental effective rate of tax) ("Damages"):
(i) arising out any inaccuracy in any representation or warranty of the Company under this Agreement, the Schedules, the Exhibits or any agreement or certificate delivered or to be delivered by the Company pursuant hereto in any respect, whether or not the Purchaser's Indemnified Persons relied thereon or had Knowledge thereof, or any breach or nonfulfillment of any misrepresentationcovenant, agreement or breach of, or default in connection with, any other obligation of the representations Company under this Agreement or warrantiesany agreement or document delivered pursuant hereto; (ii) any undisclosed Liabilities, covenants even if not required to be disclosed on a balance sheet in accordance with GAAP; (iii) the business of the Company or the occupancy, condition, management, operation or use of the Company's or any Subsidiary's assets prior to the Closing Date and agreements given the products manufactured or made sold by the Company or any Shareholder in this Agreement or any certificate, document or instrument delivered by or on behalf of the Company or the Shareholders pursuant to this Agreement;
(ii) resulting from any failure of any Shareholder to have good, valid and marketable title to the issued and outstanding shares held by such Shareholder, free and clear of Liens, or any claim by a current or former shareholder, or any other person, firm, corporation or entity, seeking to assert or based upon ownership or rights to ownership of equity interest of the Company (or the Purchase Price), any rights of a shareholder of the Company, including any options, or preemptive rights or rights to notice or to vote, any rights under the Company' Articles of Incorporation, bylaws or other charter documents, any right under any agreement among the Company and the Shareholders or any claim that his or her equity interests or other securities were wrongfully repurchased by the Company;
(iii) in connection with a liability of the Company arising out of any acts, events, omissions or transactions occurring Subsidiary prior to the Closing Date, which liabilities were including, but not disclosed to DoveBid in this Agreementlimited to, the Financial Statements, the Company Disclosure Letter or the Closing Balance Sheet and which the Shareholders had Knowledge of at the time of the Closingthose matters described on Schedule 2.18; or
(iv) resulting from without limiting any claim by of the foregoing, any investment bankerand all tax deficiencies, broker, finder assessments (including any interest and penalties) or other agent engaged tax Liabilities, including, but not limited to, with respect to the Company's Tax Returns for the years 1994-1997 and for the period beginning January 1, 1998, and ending on the Closing Date (the "SHORT PERIOD") ("TAX CLAIMS"); or (v) any failure of any nature of the Purchaser to obtain good, valid and indefeasible record and beneficial title to all of the capital stock of the Company, free and clear of any adverse claim of any other Person, including, but not limited to, any Encumbrance.
(2) With respect to matters not involving Proceedings brought or asserted by third parties, within ten (10) days after notification from the Company Purchaser's Indemnified Persons supported by reasonable documentation setting forth the nature of the circumstances entitling the Purchaser's Indemnified Persons to indemnity hereunder, the Shareholders, at no cost or expense to the Purchaser's Indemnified Persons, shall diligently commence resolution of such matters in a manner reasonably acceptable to the Purchaser's Indemnified Persons and shall diligently and timely prosecute such resolution to completion; provided, however, with respect to those claims that may be satisfied by payment of a liquidated sum of money, the Shareholders shall promptly pay the amount so claimed to the extent supported by reasonable documentation out of the Escrow Deposit or otherwise, as the case may be, in accordance with the Escrow Agreement, subject to the provisions of SECTION 9.6. If litigation or any Shareholder in connection with other Proceeding is commenced or threatened, the origin, negotiation or execution provisions of this Agreement or in connection with any transaction contemplated herebySECTION 9.5 shall control.
Appears in 1 contract