Indemnification by the Shareholders. The Shareholders severally (and not jointly) shall hold harmless and indemnify each of the Purchaser Indemnitees from and against, and shall compensate and reimburse each of the Purchaser Indemnitees for, any Damages that are directly or indirectly suffered or incurred by any of the Purchaser Indemnitees or to which any of the Purchaser Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) and that arise directly or indirectly from or as a direct or indirect result of, or are directly or indirectly connected with: (a) any Breach by the Shareholders of any representation or warranty of the Shareholders contained in this Agreement or any other Transactional Agreement; (b) any Breach of any covenant of the Shareholders contained in this Agreement or any other Transactional Agreement; and (c) any Proceeding relating directly or indirectly to any Breach, alleged Breach, Liability or matter of the type referred to in clauses "(a)" or "(b)" above (including any Proceeding commenced by any Purchaser Indemnitee for the purpose of enforcing any of its rights under this Section 6). The Purchaser Indemnitees shall not be entitled to indemnification pursuant to the provisions of this Section 6.2 until the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties pursuant to this Section 6.2 (and excluding any Damages arising pursuant to Section 6.3 below)) exceeds $100,000 (the "Basket Amount") (it being understood and agreed that the Basket Amount is intended as a deductible, and the Shareholders will not be liable for the first $100,000 of Damages for which the Purchaser Indemnitees are entitled to indemnification). Notwithstanding the foregoing, no Basket Amount shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. Subject to Sections 6.3 and 7.14 below, all of the indemnification obligations of either of the Shareholders shall be satisfied exclusively by deduction from the Escrow Shares; provided, that, each Shareholder may elect, at its sole option, to satisfy such indemnification obligation in cash (the "Shareholder Cap"). Notwithstanding the foregoing, any Breach of any covenant (or any Proceeding relating directly or indirectly to any such failure or Breach) of the Shareholders contained in Sections 1.1, 1.2(b), 1.2(c), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 or 7.12 of this Agreement shall be satisfied exclusively by the payment in cash of the amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. For purposes of the indemnity obligations under Section 6, the value per share of Purchaser Series 1 Stock shall be deemed to be the Series 1 Value on the date of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a final, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that may be satisfied by the surrender of Escrow Shares shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) equal to the amount of the indemnification obligation.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Local Matters Inc.), Stock Purchase Agreement (Local Matters Inc.), Stock Purchase Agreement (Local Matters Inc.)
Indemnification by the Shareholders. (a) The Shareholders severally (MAG Holders, jointly and not jointly) severally, shall hold harmless and indemnify each of the Purchaser Indemnitees from and against, and shall compensate and reimburse each of the Purchaser Indemnitees for, any Damages that are directly or indirectly suffered or incurred by any of the Purchaser Indemnitees or to which any of the Purchaser Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any third-party claim) and that arise directly or indirectly from or as a direct or indirect result of, or are directly or indirectly connected with:
(ai) any Breach by the Shareholders of any representation or warranty made by the MAG Holders in Section 2 of this Agreement with respect to MAG as of the Shareholders contained in date of this Agreement or any other Transactional Agreement;
(bii) any Breach of any representation, warranty, statement, information or provision contained in the Target Disclosure Schedule related to Section 2 of this Agreement with respect to MAG, the Closing Certificate with respect to MAG or in any other document delivered or otherwise made available to the Purchaser or any of its Representatives by or on behalf of any MAG Holder or any Representative of any MAG Holder with respect to MAG;
(iii) any Breach of any representation, warranty, covenant or obligation of any MAG Holder contained in any of the Shareholders contained in this Agreement or any other Transactional AgreementAgreements relating to MAG; andor
(civ) any Proceeding relating directly or indirectly to any Breach, alleged Breach, Liability or matter of the type referred to in clauses clause "(ai)" or through "(biii)" above (including any Proceeding commenced by any Purchaser Indemnitee for the purpose of enforcing any of its rights under this Section 67). .
(b) The OLWM Holders, jointly and severally, shall hold harmless and indemnify each of the Indemnitees from and against, and shall compensate and reimburse each of the Indemnitees for, any Damages that are directly suffered or incurred by any of the Indemnitees or to which any of the Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any third-party claim) and that arise directly or indirectly from or as a direct or indirect result of, or are directly or indirectly connected with:
(i) any Breach of any representation or warranty made by the OLWM Holders in Section 2 of this Agreement with respect to OLWM as of the date of this Agreement;
(ii) any Breach of any representation, warranty, statement, information or provision contained in the Target Disclosure Schedule related to Section 2 of this Agreement with respect to OLWM, the Closing Certificate with respect to OLWM or in any other document delivered or otherwise made available to the Purchaser or any of its Representatives by or on behalf of any OLWM Holder or any Representative of any OLWM Holder with respect to OLWM;
(iii) any Breach of any representation, warranty, covenant or obligation of any OLWM Holder contained in any of the Transactional Agreements relating to OLWM; or
(iv) any Proceeding relating directly or indirectly to any Breach, alleged Breach, Liability or matter of the type referred to in clause "(i)" through "(iii)" above (including any Proceeding commenced by any Indemnitee for the purpose of enforcing any of its rights under this Section 7).
(c) Each of the Shareholders shall, severally but not jointly, hold harmless and indemnify each of the Indemnitees from and against, and shall compensate and reimburse each of the Indemnitees for, any Damages that are directly or indirectly suffered or incurred by any of the Indemnitees or to which any of the Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any third-party claim) and which arise directly or indirectly from or as a direct or indirect result of, or are directly or indirectly connected with, any Breach of any representation or warranty made by such Shareholder in Section 6 of this Agreement as of the date of this Agreement.
(d) Subject to Section 7.2(e), no Shareholder shall be entitled required to make any indemnification payment pursuant to Sections 7.2(a) or 7.2(b) for any Breach as set forth in such Sections until such time as, and to the provisions of this Section 6.2 until extent that, the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations representations, warranties or warranties covenants contained in Sections 7.2(a) and 7.2(b)) that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees in connection with a Breach of Sections 7.2(a) and 7.2(b), or to which any one or more of the Indemnitees has or have otherwise become subject pursuant to this Section 6.2 (and excluding any Damages arising pursuant to Section 6.3 belowSections 7.2(a) or 7.2(b)) , exceeds $100,000 (the "Basket Amount") (it being understood and agreed that the Basket Amount is intended as a deductible, and the Shareholders will not be liable for the first $100,000 of Damages for which the Purchaser Indemnitees are entitled to indemnification)182,500. Notwithstanding the foregoing, no Basket Amount shall apply to (a) claims based on fraud or any claim Except in the nature case of fraud or willful misrepresentation, the maximum liability of each Shareholder under Section 7.2 shall not exceed such Shareholder's Indemnity Cap; provided that in the case of fraud or willful misrepresentation, the maximum liability of ▇▇▇▇▇▇▇▇ under Section 7.2 shall in no case exceed the actual amount of consideration received by ▇▇▇▇▇▇▇▇ in connection with this Agreement.
(be) claims arising pursuant to Section 6.3 below. Subject to Sections 6.3 and 7.14 below, all of The limitation on the indemnification obligations of either of the Shareholders that is set forth in Section 7.2(d) shall be satisfied exclusively by deduction from not apply to a Shareholder to the Escrow Shares; provided, that, each extent that such Shareholder may elect, at its sole option, had Knowledge on or prior to satisfy such indemnification obligation in cash (the "Shareholder Cap"). Notwithstanding the foregoing, any Breach Closing Date of any covenant (or any Proceeding relating circumstance that directly or indirectly caused or contributed to any such failure or Breach) of Breach and such circumstance was not disclosed by the Shareholders contained in Sections 1.1, 1.2(b), 1.2(c), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 or 7.12 of this Agreement shall be satisfied exclusively by to the payment in cash of the amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or any claim Purchaser in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. For purposes of the indemnity obligations under Section 6, the value per share of Purchaser Series 1 Stock shall be deemed to be the Series 1 Value on the date of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a final, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that may be satisfied by the surrender of Escrow Shares shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) equal to the amount of the indemnification obligationTarget Disclosure Schedule.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Local Matters Inc.), Stock Purchase Agreement (Local Matters Inc.), Stock Purchase Agreement (Local Matters Inc.)
Indemnification by the Shareholders. The From and after the Closing Date, the Shareholders severally (shall, jointly and not jointly) shall severally, indemnify and hold harmless Parent, the Surviving Corporation and indemnify its Subsidiaries, each of their respective directors, officers, employees and agents (other than the Shareholders), and each of the Purchaser Indemnitees heirs, executors, successors and assigns of any of the foregoing (collectively, the “Parent Indemnified Parties”) from and againstagainst any and all Losses incurred by, suffered by or asserted against any of the Parent Indemnified Parties in connection with or arising from (i) any breach by the Company or the Shareholders of their respective covenants and shall compensate agreements contained herein, (ii) any breach by the Company or the Shareholders of their respective representations and reimburse warranties contained herein (provided, that for purposes of this clause (ii), if any such representation or warranty is qualified by knowledge, materiality, the word “knowledge”, “material” or by words of similar impact, such qualification or exception will in all respects be ignored and deemed not included in such representation or warranty) and (iii) notwithstanding any disclosure set forth in the Schedules hereto, the ownership, maintenance, operation or existence of the Company, its assets and business prior to the Effective Time. To the extent that any of the Shareholders undertakings set forth in this Section 8.2 may be unenforceable, each of the Purchaser Indemnitees forShareholders shall, any Damages jointly and severally, contribute the maximum amount that are directly or indirectly suffered or it is permitted under applicable law to the payment and satisfaction of all indemnifiable liabilities incurred by any of the Purchaser Indemnitees or to which any of the Purchaser Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) Parent Indemnified Parties. In addition to, and that arise directly or indirectly from or as a direct or indirect result without limitation of, or are directly or indirectly connected with:
(a) any Breach by the Shareholders foregoing, in the event of any representation or warranty of the Shareholders contained in this Agreement payment to Parent or any other Transactional Agreement;
(b) any Breach of any covenant of the Shareholders contained in this Agreement or any other Transactional Agreement; and
(c) any Proceeding relating directly or indirectly to any Breach, alleged Breach, Liability or matter of the type referred to in clauses "(a)" or "(b)" above (including any Proceeding commenced by any Purchaser Indemnitee for the purpose of enforcing any of its rights under this Section 6). The Purchaser Indemnitees shall not be entitled to indemnification SBR Parent Indemnified Party pursuant to the provisions of this Section 6.2 until the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties pursuant to this Section 6.2 (and excluding any Damages arising pursuant to Section 6.3 below)) exceeds $100,000 (the "Basket Amount") (it being understood and agreed that the Basket Amount is intended as a deductible, and the Shareholders will not be liable for the first $100,000 of Damages for which the Purchaser Indemnitees are entitled to indemnification). Notwithstanding the foregoing, no Basket Amount shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. Subject to Sections 6.3 and 7.14 below, all terms of the indemnification obligations of either of the Shareholders shall be satisfied exclusively by deduction from the Escrow Shares; providedSBR Merger Agreement, that, each Shareholder may elect, at its sole option, to satisfy such indemnification obligation in cash (the "Shareholder Cap"). Notwithstanding the foregoing, any Breach of any covenant (or any Proceeding relating directly or indirectly to any such failure or Breach) of the Shareholders contained in Sections 1.1, 1.2(b), 1.2(c), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 or 7.12 of this Agreement shall be satisfied exclusively by the payment in cash of the an aggregate amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. For purposes of the indemnity obligations under Section 6, the value per share of Purchaser Series 1 Stock shall be deemed to be the Series 1 Value on the date of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a final, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that may be satisfied by the surrender of Escrow Shares shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) equal to the product of (i) the SBR Ownership Percentage times (ii) the aggregate amount of such payment shall be disbursed to Parent pursuant to the indemnification obligationterms of the Escrow Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Fortune Brands Inc), Merger Agreement (Fortune Brands Inc)
Indemnification by the Shareholders. (a) The Shareholders severally (other than ▇▇▇▇▇▇▇▇ and not jointly▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇) shall hold harmless jointly and severally indemnify and defend the Buyer and MedSource and each of the Purchaser Indemnitees from and its respective officers, directors, employees, stockholders, agents, advisors or representatives (each, a "Buyer Indemnitee") against, and shall compensate and reimburse hold each of the Purchaser Indemnitees forBuyer Indemnitee harmless from, any Damages loss, liability, obligation, deficiency, damage, Tax or expense including, without limitation, interest, penalties, reasonable attorneys' and consultants' fees and disbursements (collectively, "Damages"), that are directly any Buyer Indemnitee suffers or indirectly suffered incurs based upon, arising out of, relating to or incurred by in connection with any of the Purchaser Indemnitees or to which any of the Purchaser Indemnitees may otherwise become subject following (regardless of whether or not such Damages relate to in connection with any third-third party claim) and that arise directly or indirectly from or as a direct or indirect result of, or are directly or indirectly connected with:):
(ai) any Breach by the Shareholders The inaccuracy of any representation or warranty of made by the Shareholders Company contained in this Agreement or in any other Transactional AgreementTransaction Document or, subject to section 10.5(b), in respect of any claim made by a third party and based upon facts that would, if true, render such representation or warranty inaccurate;
(bii) any Breach of The Company's failure to perform or to comply with any covenant of required to be performed or complied with by the Shareholders Company contained in this Agreement or in any other Transactional Transaction Document;
(iii) Any Taxes for which the Company is liable with respect to any Pre-Closing Period (whether or not shown on any Tax Return) with respect to periods or portions thereof ending on or before the Closing Date, including Taxes accruable upon income earned through the Closing Date which have not been paid in full or accrued as current liabilities for Taxes on the Working Capital Statement or otherwise reflected in the determination of the Final Working Capital;
(iv) Any claim relating to dissenters' rights raised by any Shareholder;
(v) The existence of, or a claim with respect to, any interest of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ in the ▇▇▇▇ Property;
(vi) Any claim by any Person for monetary or any other consideration or any other interest arising out of this Agreement, that is in any way inconsistent with Schedule 2.3(b);
(vii) Both of the matters referred to in Schedule 3.8(a); andor
(viii) Any Institutional Indebtedness of the Company outstanding as of the Closing Date other than the SunTrust Debt.
(b) Each Shareholder shall severally indemnify any Buyer Indemnitee for any Damages that such Buyer Indemnitee suffers or incurs based upon, arising out of, relating to or in connection with any of the following (whether or not in connection with any third party claim):
(i) The inaccuracy of any representation or warranty made by such Shareholder in the Letter of Transmittal executed by such Shareholder; or
(ii) Such Shareholder's failure to perform or comply with any covenant required to be performed or complied with by such Shareholder contained herein, in the Letter of Transmittal executed by such Shareholder or in any other Transaction Document to which such Shareholder is a party.
(c) Notwithstanding anything in this Agreement to the contrary, the payment of any Proceeding relating directly or indirectly amounts due to any Breach, alleged Breach, Liability or matter of the type referred to in clauses "(a)" or "(b)" above (including any Proceeding commenced by any Purchaser a Buyer Indemnitee for the purpose of enforcing any of its rights under this Section 6). The Purchaser Indemnitees shall not be entitled to indemnification pursuant to the provisions of this Section 6.2 until the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties pursuant to this Section 6.2 (and excluding any Damages arising pursuant to Section 6.3 below)) exceeds $100,000 (the "Basket Amount") (it being understood and agreed that the Basket Amount is intended as a deductible, and the Shareholders will not be liable for the first $100,000 of Damages for which the Purchaser Indemnitees are entitled to indemnification). Notwithstanding the foregoing, no Basket Amount shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. Subject to Sections 6.3 and 7.14 below, all of the indemnification obligations of either of the Shareholders shall be satisfied exclusively by deduction from the Escrow Shares; provided, that, each Shareholder may elect, at its sole option, to satisfy such indemnification obligation in cash (the "Shareholder Cap"). Notwithstanding the foregoing, any Breach of any covenant (or any Proceeding relating directly or indirectly to any such failure or Breach) of the Shareholders contained in Sections 1.1, 1.2(b), 1.2(c), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 or 7.12 of this Agreement shall be satisfied exclusively by the payment in cash of the amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. For purposes of the indemnity obligations under Section 6, the value per share of Purchaser Series 1 Stock shall be deemed to be the Series 1 Value on the date of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a final, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that Article 10 may be satisfied by the surrender Shareholders by the payment and delivery of Escrow cash and MedSource Shares, but in no event shall the percentage of cash paid hereunder be less than the percentage of cash received by the Shareholder as set forth in Schedule 2.3(b). To the extent a Shareholder has sold or otherwise transferred his MedSource Shares prior to the time of such delivery, the cash/stock ratio of such delivery shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) equal increased accordingly. Notwithstanding anything to the amount of the indemnification obligation.contrary in this section
Appears in 1 contract
Indemnification by the Shareholders. The Shareholders severally (and not jointly) shall hold harmless and indemnify each of the Purchaser Indemnitees from and against, and shall compensate and reimburse each of the Purchaser Indemnitees for, any Damages that are directly or indirectly suffered or incurred by any of the Purchaser Indemnitees or to which any of the Purchaser Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) and that arise directly or indirectly from or as a direct or indirect result of, or are directly or indirectly connected with:
(a) Each Shareholder agrees, subject to the other terms and conditions of this Agreement and without gross-up for Taxes, (i) jointly and severally to indemnify the Purchaser, its affiliates (including Company and each Subsidiary) and each of their respective officers, directors, employees, stockholders, agents and representatives (the “Purchaser Indemnitees”) against and hold them harmless from any Breach and all Losses incurred or suffered by such Purchaser Indemnitee arising out of or with respect to (A) the Shareholders breach of any representation or warranty or (B) any covenant or agreement, in the case of (A) and (B) of Company in this Agreement or the Transaction Documents (it being agreed and acknowledged by the parties that for the sole purpose of determining Losses (and not for determining whether or not any breaches of representations or warranties have occurred) pursuant to this clause, the representations and warranties of Company or any Shareholders in this Agreement or any Transaction Document shall not be deemed qualified by any references herein to materiality generally or to whether or not any such breach results or may result in a Material Adverse Effect), and (ii) severally but not jointly to indemnify the Purchaser Indemnitees against and hold them harmless from any and all Losses incurred or suffered by the Purchaser Indemnitees arising out of or with respect to (A) the breach of any representation or warranty or (B) any covenant or agreement, in the case of (A) and (B) of such Shareholder in this Agreement or the Transaction Documents.
(b) Payments by the Shareholders pursuant to Section 7.3(a) shall be limited to the amount of any liability or damage that remains after deducting therefrom (i) any amounts actually recovered by or on behalf of any Purchaser Indemnitees under insurance policies with respect to such liability or damage, net of actual out-of-pocket expenses incurred in obtaining such amounts, any co-payment, retrospective premium adjustment and increased premiums resulting from such liability or damage, and (ii) any adjustments to the Purchase Price pursuant to Section 2.2(a) with respect to the subject matter in dispute. Each of Parent and the Purchaser shall use commercially reasonable efforts to obtain payments under any insurance policies of the Company, any of its Subsidiaries, Parent or the Purchaser with respect to any such liability or damage; provided, however, that neither Parent nor the Purchaser shall be required to bring suit against any insurer to enforce rights under any such applicable policies.
(c) No claim may be made against the Shareholders contained for indemnification pursuant to Section 7.3(a)(i)(A) or 7.3(a)(ii)(A) with respect to any individual item of Loss, unless all Losses of the Purchaser Indemnitees with respect to Section 7.3(a)(i)(A) and 7.3(a)(ii)(A) shall exceed on a cumulative basis an amount equal to $2,500,000, at which time and thereafter, such Purchaser Indemnitee shall be entitled to indemnification for all such Losses in excess of $2,500,000; provided, however, that any Losses based upon a breach of Section 3.2 (Capital Stock of Company; Ownership of the Shares), Section 3.17 (Brokers; Company Transaction Expenses), Section 4.2 (Ownership of the Shares) or Section 4.3 (Authorization; Binding Effect) shall not be subject to any such limitation. The aggregate maximum indemnification payable by the Shareholders pursuant to Section 7.3(a)(i)(A) and 7.3(a)(ii)(A), other than for any claims based upon a breach of Section 3.2 (Capital Stock of Company; Ownership of the Shares), Section 4.2 (Ownership of the Shares) or Section 4.3 (Authorization; Binding Effect ), shall be limited to an amount equal to 10% of the Purchase Price. Notwithstanding the foregoing, in the event of a breach of Section 3.1 (Incorporation and Qualification of Company and its Subsidiaries; Authority), Section 3.2 (Capital Stock of Company; Ownership of the Shares), Section 4.2 (Ownership of the Shares) or Section 4.3 (Authorization; Binding Effect), each Shareholder’s maximum liability for such breach shall be limited to the Purchase Price proceeds received by such Shareholder.
(d) Each of Parent and the Purchaser hereby agrees that, to the extent any representation or warranty of Company or any Shareholder in this Agreement or any other Transactional Agreement;
(b) any Breach Transaction Document is, to the knowledge of any covenant Parent or the Purchaser acquired prior to the Closing, untrue or incorrect as of the Shareholders contained in Closing, then such representation or warranty shall be deemed to be amended as of the Closing to the extent necessary to render it consistent with such knowledge of Parent or the Purchaser and, notwithstanding any other provision of this Agreement or any other Transactional Agreement; and
(c) any Proceeding relating directly or indirectly to any Breach, alleged Breach, Liability or matter of the type referred to in clauses "(a)" or "(b)" above (including any Proceeding commenced by any Purchaser Indemnitee for the purpose of enforcing any of its rights under this Section 6). The Purchaser Indemnitees shall not be entitled to indemnification pursuant to the provisions of this Section 6.2 until the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties pursuant to this Section 6.2 (and excluding any Damages arising pursuant to Section 6.3 below)) exceeds $100,000 (the "Basket Amount") (it being understood and agreed that the Basket Amount is intended as a deductible, and the Shareholders will not be liable for the first $100,000 of Damages for which the Purchaser Indemnitees are entitled to indemnification). Notwithstanding the foregoingTransaction Document, no Basket Amount shall apply to claim for indemnification may (ai) claims based thereafter be asserted on fraud or any claim in the nature basis of fraud such inaccuracy or (b) claims arising be asserted for any breach of any representation, warranty, covenant or agreement of which breach (or of facts, circumstances or conditions that could reasonably form the basis of such breach) Parent or the Purchaser had knowledge prior to the Closing; provided, however, that this Section 7.3(d) shall not apply with respect to the representations and warranties set forth in Section 3.15(a) and (c). Company and the Shareholders agree that any disclosure in the Schedule of Exceptions relating to potential liabilities of Company for state Taxes shall be disregarded for purposes of determining whether any representation or warranty has been breached or in determining the amount of any Loss relating to any such breach.
(e) Any indemnification payments due to the Purchaser for any breach of Section 3.2(b) (Capital Stock of Company; Ownership of Shares) and Section 3.17 (Brokers; Company Transaction Expenses) shall first be made from the Holdback Amount.
(f) In light of the 12-month survival period provided in Section 7.1, the Trustees shall retain on behalf of the Shareholders, in a separate and distinct account, and will not distribute until the first anniversary of the date of this Agreement, an aggregate amount equal to ten percent (10%) of the Purchase Price. If as of such anniversary date there exists any unresolved claim described in a claim notice delivered to the Shareholders’ Representative pursuant to Section 6.3 below. Subject to Sections 6.3 and 7.14 below, all of the indemnification obligations of either of the Shareholders shall be satisfied exclusively by deduction from the Escrow Shares; provided, that, each Shareholder may elect, at its sole option, to satisfy such indemnification obligation in cash (the "Shareholder Cap"). Notwithstanding the foregoing, any Breach of any covenant (or any Proceeding relating directly or indirectly to any such failure or Breach7.4(a) of the Shareholders contained in Sections 1.1, 1.2(b), 1.2(c), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 or 7.12 of this Agreement shall be satisfied exclusively by the payment in cash of the amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant prior to Section 6.3 below. For purposes of the indemnity obligations under Section 6such anniversary date, the value per share of Purchaser Series 1 Stock shall be deemed Trustees shall, with respect to be the Series 1 Value on the date of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a finaleach such claim, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that may be satisfied retain and not distribute until such claim is resolved by the surrender of Escrow Shares shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) applicable parties an aggregate amount equal to the amount good faith estimate of the indemnification obligationindemnifiable Losses relating to such then-outstanding claim, as mutually agreed upon by the Purchaser and the Shareholders’ Representative.
(g) Notwithstanding anything to the contrary, in no event shall the Shareholders or any of them be liable to any Purchaser Indemnitee with respect to any Third-Party Claim relating to the operation of the business of the Company and/or any of its Subsidiaries prior to the Closing and of which neither the Company nor any Shareholder had knowledge as of the Closing. This Section 7.3(g) shall not apply to state Tax matters covered by Section 3.15(a) and (c).
Appears in 1 contract
Sources: Stock Purchase Agreement (Blount International Inc)
Indemnification by the Shareholders. The Shareholders severally (a) From and not jointly) after the Effective Time (but subject to Sections 7.1 and 7.4), Horn shall hold harmless and indemnify each of the Purchaser Indemnitees from and against, and shall compensate and reimburse each of the Purchaser Indemnitees for, any Damages that are directly or indirectly suffered or incurred by any of the Purchaser Indemnitees or to which any of the Purchaser Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) and that arise directly or indirectly from or as a direct or indirect result of, or are directly or indirectly connected with:
: (ai) any Breach by the Shareholders inaccuracy in or breach of any representation or warranty set forth in Section 2; (ii) any breach of any covenant or obligation of the Shareholders contained Company set forth in this Agreement to be performed prior to the Effective Time; or any other Transactional Agreement;
(biii) any Breach of any covenant of the Shareholders contained in this Agreement or any other Transactional Agreement; and
(c) any Legal Proceeding relating directly or indirectly to any Breach, alleged Breach, Liability inaccuracy or matter breach of the type referred to in clauses clause "(ai)" or "
(b)" ii) above (including any Legal Proceeding commenced by any Purchaser Indemnitee for the purpose of enforcing any of its rights under this Section 67). The Purchaser Indemnitees shall not be entitled to indemnification pursuant to From and after the provisions of this Section 6.2 until the total amount of all Damages Effective Time (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties pursuant to this Section 6.2 (and excluding any Damages arising pursuant to Section 6.3 below)) exceeds $100,000 (the "Basket Amount") (it being understood and agreed that the Basket Amount is intended as a deductible, and the Shareholders will not be liable for the first $100,000 of Damages for which the Purchaser Indemnitees are entitled to indemnification). Notwithstanding the foregoing, no Basket Amount shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. Subject but subject to Sections 6.3 7.1 and 7.14 below, all of the indemnification obligations of either of the Shareholders shall be satisfied exclusively by deduction from the Escrow Shares; provided, that7.4), each Shareholder may electshall, at its sole optionseverally and not jointly, to satisfy such indemnification obligation in cash (hold harmless and indemnify each of the "Shareholder Cap"). Notwithstanding Indemnitees from and against, and shall compensate and reimburse each of the foregoingIndemnitees for, any Breach Damages that are directly or indirectly suffered or incurred by any of the Indemnitees or to which any of the Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) and that arise from or as a result of: (i) any inaccuracy in or breach of any representation or warranty set forth in Section 3; (ii) any breach of any covenant or obligation of the Shareholder set forth in this Agreement or the covenants contained in such Shareholder's Noncompetition Agreement; or (or iii) any Legal Proceeding relating directly or indirectly to any such failure inaccuracy or Breach) breach of the Shareholders contained type referred to in Sections 1.1, 1.2(bclause "(i), 1.2(c" or "(ii), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 or 7.12 " of this Agreement shall be satisfied exclusively sentence (including any Legal Proceeding commenced by any Indemnitee for the payment in cash purpose of the amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or enforcing any claim in the nature of fraud or (b) claims arising pursuant to its rights under this Section 6.3 below. For purposes of the indemnity obligations under Section 6, the value per share of Purchaser Series 1 Stock shall be deemed to be the Series 1 Value on the date of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a final, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that may be satisfied by the surrender of Escrow Shares shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) equal to the amount of the indemnification obligation7).
Appears in 1 contract
Sources: Merger Agreement (Digitalthink Inc)
Indemnification by the Shareholders. The Subject to Section 7.3, the Shareholders severally severally, pro rata in accordance with their Pro Rata Interests, shall indemnify, defend and hold Buyer, Merger Sub and Buyer’s Affiliates (and not jointlycollectively, the “Buyer Parties”) shall hold harmless and indemnify each of the Purchaser Indemnitees from and against any and all Losses asserted against, and shall compensate and reimburse each of the Purchaser Indemnitees forimposed on, any Damages that are directly or indirectly suffered or incurred or suffered by any of Buyer, Merger Sub, the Purchaser Indemnitees Company or to which any of the Purchaser Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) and that arise directly or indirectly from or Surviving Corporation as a direct or indirect result of, or are directly or indirectly connected with:
of (a) any Breach by the Shareholders inaccuracy of any representation or the breach of any warranty set forth in Article III, any Company Disclosure Schedule delivered by the Company in connection with Article III or in any agreement or certificate executed and delivered by the Company or any Shareholder pursuant to this Agreement; (b) the non-fulfillment of any covenant or agreement on the part of the Shareholders contained Company or any Shareholder set forth in this Agreement or in any other Transactional Agreement;
(b) any Breach of any covenant of the Shareholders contained in agreement or certificate executed and delivered pursuant to this Agreement or any other Transactional Agreement; and
or (c) any Proceeding relating directly payments by or indirectly liabilities of Buyer arising in connection with payments to holders of Dissenting Shares, in excess of the portion of the Aggregate Merger Consideration otherwise payable to any Breachsuch Shareholder in connection with this Agreement (collectively, alleged Breach, Liability or matter of the type referred to in clauses "(a)" or "(b)" above (including any Proceeding commenced by any Purchaser Indemnitee for the purpose of enforcing any of its rights under this Section 6“Indemnified Losses”). The Purchaser Indemnitees Each Shareholder irrevocably waives any and all rights to recourse against the Company or the Surviving Corporation with respect to any misrepresentation or breach of any representation, warranty or indemnity, or noncompliance with any conditions, covenants or agreements, given or made by the Company in this Agreement. No Shareholder shall not be entitled to indemnification pursuant contribution from, subrogation to or recovery against the provisions Company or the Surviving Corporation with respect to any liability of this Section 6.2 until the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations Shareholder that may arise under or warranties pursuant to this Section 6.2 (and excluding any Damages arising pursuant to Section 6.3 below)) exceeds $100,000 (Agreement or the "Basket Amount") (it being understood and agreed that the Basket Amount is intended as a deductible, and the Shareholders will not be liable for the first $100,000 of Damages for which the Purchaser Indemnitees are entitled to indemnification). Notwithstanding the foregoing, no Basket Amount shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. Subject to Sections 6.3 and 7.14 below, all of the indemnification obligations of either of the Shareholders shall be satisfied exclusively by deduction from the Escrow Shares; provided, that, each Shareholder may elect, at its sole option, to satisfy such indemnification obligation in cash (the "Shareholder Cap"). Notwithstanding the foregoing, any Breach of any covenant (or any Proceeding relating directly or indirectly to any such failure or Breach) of the Shareholders contained in Sections 1.1, 1.2(b), 1.2(c), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 or 7.12 of this Agreement shall be satisfied exclusively by the payment in cash of the amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. For purposes of the indemnity obligations under Section 6, the value per share of Purchaser Series 1 Stock shall be deemed to be the Series 1 Value on the date of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a final, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that may be satisfied by the surrender of Escrow Shares shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) equal to the amount of the indemnification obligationtransactions contemplated hereby.
Appears in 1 contract
Indemnification by the Shareholders. The Shareholders (a) Subject to the limitations set forth herein, each Shareholder shall, severally (and but not jointly, indemnify and defend the Buyer and its Affiliates (including, after the Closing, each Acquired Company) shall hold harmless and indemnify each of their respective shareholders, members, managers, officers, directors, employees, agents, successors and assigns (the Purchaser Indemnitees from and “Buyer Indemnitees”) against, and shall compensate and reimburse each of the Purchaser Indemnitees forhold them harmless from, any Damages that are directly or indirectly suffered and all Losses resulting from, arising out of, or incurred by any of the Purchaser Indemnitees or to which any of the Purchaser Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) and that arise directly or indirectly from or as a direct or indirect result ofBuyer Indemnitee in connection with, or are directly or indirectly connected with:
otherwise with respect to (ai) any Breach by the Shareholders inaccuracy or breach of any representation or warranty of the Shareholders contained made by such Shareholder in this Agreement or any certificate or other Transactional Agreement;document furnished or to be furnished to Buyer in connection with the transactions contemplated by this Agreement (without regard and without giving effect to any “materiality” or similar qualification contained in any such representation or warranty); (ii) any breach by such Shareholder or the Company of any covenant or agreement contained in this Agreement (without regard and without giving effect to any “materiality” or similar qualification contained in any such covenant or agreement); or (iii) any Losses arising under PRC Section 698 that are attributable to such Shareholder.
(b) any Breach The aggregate Liability for indemnification of any covenant each Shareholder under this Section 8.2 shall be limited to the amount of the Shareholders contained in this Agreement or any other Transactional Agreement; andnet proceeds received by such Shareholder pursuant to Section 2.1 hereof.
(c) any Proceeding relating directly or indirectly to any Breach, alleged Breach, Liability or matter of the type referred to in clauses "(a)" or "(b)" above (including any Proceeding commenced by any Purchaser Indemnitee for the purpose of enforcing any of its rights under this Section 6). The Purchaser Buyer Indemnitees shall not be entitled to indemnification for any Loss or Losses pursuant to Section 8.2(a)(i) (the provisions of this Section 6.2 “Buyer Warranty Losses”) unless and until the total aggregate amount of all Damages Buyer Warranty Losses incurred by the Buyer Indemnitees exceeds one percent (including 1%) of the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties aggregate purchase price paid pursuant to this Section 6.2 (and excluding any Damages arising pursuant to Section 6.3 below)) exceeds $100,000 Agreement upon the Closing (the "Basket Amount"“Buyer Deductible”) (it being understood and agreed then only to the extent that the Basket Amount is intended as a deductibleBuyer Warranty Losses exceed the Buyer Deductible, and provided that the Shareholders will limitations set forth in this Section 8.2(c) shall not be liable for the first $100,000 of Damages for which the Purchaser Indemnitees are entitled to indemnification). Notwithstanding the foregoing, no Basket Amount shall apply to (a) claims any Loss or Losses based on fraud any breach of the covenants or agreements set forth in Section 5.7 or any claim in the nature of fraud Loss or (b) claims Losses arising pursuant to under PRC Section 6.3 below. Subject to Sections 6.3 and 7.14 below, all of the indemnification obligations of either of the Shareholders shall be satisfied exclusively by deduction from the Escrow Shares; provided, that, each Shareholder may elect, at its sole option, to satisfy such indemnification obligation in cash (the "Shareholder Cap"). Notwithstanding the foregoing, any Breach of any covenant (or any Proceeding relating directly or indirectly to any such failure or Breach) of the Shareholders contained in Sections 1.1, 1.2(b), 1.2(c), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 or 7.12 of this Agreement shall be satisfied exclusively by the payment in cash of the amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. For purposes of the indemnity obligations under Section 6, the value per share of Purchaser Series 1 Stock shall be deemed to be the Series 1 Value on the date of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a final, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that may be satisfied by the surrender of Escrow Shares shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) equal to the amount of the indemnification obligation698.
Appears in 1 contract
Sources: Share Purchase Agreement (ALPHA & OMEGA SEMICONDUCTOR LTD)
Indemnification by the Shareholders. (a) The Shareholders severally Purchaser and its affiliates, officers, directors, employees, agents, successors and assigns (and not jointlyeach a "PURCHASER INDEMNIFIED PARTY") shall hold be indemnified and held harmless by the Shareholders, jointly and indemnify each of the Purchaser Indemnitees from severally, for and againstagainst any and all Liabilities, losses, damages, claims, costs and shall compensate and reimburse each of the Purchaser Indemnitees for, any Damages that are directly or indirectly expenses actually suffered or incurred by them (including, without limitation, any Action brought or otherwise initiated by any of the Purchaser Indemnitees them) (hereinafter a "LOSS"), arising out of or to which any of the Purchaser Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) and that arise directly or indirectly from or as a direct or indirect result of, or are directly or indirectly connected withresulting from:
(ai) any Breach by the Shareholders breach of any representation or warranty made by the Company or a Shareholder or a Transferor under any of the Equity Transfer Agreements contained in the Acquisition Documents (it being understood that such representations and warranties shall be interpreted without giving effect to any limitations or qualifications as to "materiality" (including the word "material") or "Material Adverse Effect" set forth therein); or
(ii) the breach of any covenant or agreement by the Company or a Shareholder or a Transferor under any of the Equity Transfer Agreements contained in the Acquisition Documents; PROVIDED, that the sum of all Losses subject to this Section 8.02 shall exceed US$700,000 before Purchaser shall be entitled to recover any Loss, and then to the extent such Loss exceeds US$700,000; PROVIDED, FURTHER, that the total liability of the Shareholders contained for indemnification hereunder shall not exceed 25% of the Aggregate Purchase Price; and PROVIDED, FURTHER, HOWEVER, that the limitation on total liability of the Shareholders for indemnification set forth in this Agreement Section 8.02 shall not apply in respect of any Loss arising out of or resulting from fraud committed by any other Transactional Agreement;of the Shareholders, the Company, the Company Subsidiaries or the Related Entities prior to the Closing. To the extent that the Shareholders' undertakings set forth in this Section 8.02 may be unenforceable, the Shareholders shall contribute the maximum amount that it is permitted to contribute under applicable Law to the payment and satisfaction of all Losses incurred by the Purchaser Indemnified Parties.
(b) any Breach A Purchaser Indemnified Party shall give the Shareholders notice of any covenant matter which a Purchaser Indemnified Party has reasonably determined has given or could give rise to a right of indemnification under this Agreement, within 60 days of such determination, stating the amount of the Shareholders contained in this Agreement or any other Transactional Agreement; and
(c) any Proceeding relating directly or indirectly to any BreachLoss, alleged Breachif known, Liability or matter and method of the type referred to in clauses "(a)" or "(b)" above (including any Proceeding commenced by any Purchaser Indemnitee for the purpose of enforcing any of its rights under this Section 6). The Purchaser Indemnitees shall not be entitled to indemnification pursuant computation thereof, and containing a reference to the provisions of this Section 6.2 until Agreement in respect of which such right of indemnification is claimed or arises. The obligations and Liabilities of the total amount of all Damages (including the Damages Shareholders under this Article VIII with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Article VIII ("THIRD PARTY CLAIMS") shall be governed by and be contingent upon the following additional terms and conditions: if a Purchaser Indemnified 40 Party shall receive notice of any Third Party Claim, the Purchaser Indemnified Party shall give the Shareholders notice of such Breach Third Party Claim within 30 days of the receipt by the Purchaser Indemnified Party of such notice; PROVIDED, HOWEVER, that the failure to provide such notice shall not release the Shareholders from any of their obligations under this Article VIII except to the extent that the Shareholders are materially prejudiced by such failure and all other Damages arising shall not relieve the Shareholders from any other Breaches obligation or Liability that it may have to any Purchaser Indemnified Party otherwise than under this Article VIII. If the Shareholders acknowledge in writing its obligation to indemnify the Purchaser Indemnified Party hereunder against any Losses that may result from such Third Party Claim, then the Shareholders shall be entitled to assume and control the defense of any representations such Third Party Claim at their expense and through counsel of its choice if it gives notice of its intention to do so to the Purchaser Indemnified Party within five days of the receipt of such notice from the Purchaser Indemnified Party; PROVIDED, HOWEVER, that if there exists or warranties pursuant is reasonably likely to this Section 6.2 (exist a conflict of interest that would make it inappropriate in the judgment of the Purchaser Indemnified Party in its sole and excluding any Damages arising pursuant absolute discretion for the same counsel to Section 6.3 below)) exceeds $100,000 (represent both the "Basket Amount") (it being understood and agreed that the Basket Amount is intended as a deductible, Purchaser Indemnified Party and the Shareholders will not Shareholders, then the Purchaser Indemnified Party shall be liable for the first $100,000 of Damages entitled to retain its own counsel in each jurisdiction for which the Purchaser Indemnitees are entitled Indemnified Party determines counsel is required, at the expense of the Shareholders. In the event that the Shareholders exercise the right to indemnification). Notwithstanding undertake any such defense against any such Third Party Claim as provided above, the foregoingPurchaser Indemnified Party shall cooperate with the Shareholders in such defense and make available to the Shareholders, no Basket Amount shall apply to (a) claims based on fraud or any claim at the Shareholders' expense, all witnesses, pertinent records, materials and information in the nature of fraud Purchaser Indemnified Party's possession or (b) claims arising pursuant to Section 6.3 belowunder the Purchaser Indemnified Party's control relating thereto as is reasonably required by the Shareholders. Subject to Sections 6.3 and 7.14 belowSimilarly, all of in the indemnification obligations of either of event the Purchaser Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim, the Shareholders shall be satisfied exclusively by deduction from cooperate with the Escrow Shares; provided, that, each Shareholder may electPurchaser Indemnified Party in such defense and make available to the Purchaser Indemnified Party, at its sole optionthe Shareholders' expense, to satisfy all such indemnification obligation witnesses, records, materials and information in cash (the "Shareholder Cap")Shareholders' possession or under the Shareholders' control relating thereto as is reasonably required by the Purchaser Indemnified Party. Notwithstanding No such Third Party Claim may be settled by the foregoing, any Breach of any covenant (or any Proceeding relating directly or indirectly to any such failure or Breach) Shareholders without the prior written consent of the Shareholders contained in Sections 1.1, 1.2(b), 1.2(c), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 or 7.12 of this Agreement shall be satisfied exclusively by the payment in cash of the amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. For purposes of the indemnity obligations under Section 6, the value per share of Purchaser Series 1 Stock shall be deemed to be the Series 1 Value on the date of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a final, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that may be satisfied by the surrender of Escrow Shares shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) equal to the amount of the indemnification obligationIndemnified Party.
Appears in 1 contract
Sources: Share Purchase Agreement (Sina Com)
Indemnification by the Shareholders. The Shareholders severally (a) Subject to the limitations set forth in this Article X, each Shareholder hereby covenants and not jointly) shall agrees that to the fullest extent permitted by Law, such Shareholder will defend, indemnify and hold harmless Parent, Merger Sub and indemnify each their respective officers, directors, managers, employees, agents and Affiliates and successors and assigns of the Purchaser Indemnitees foregoing (collectively, the “Parent Indemnified Parties”) for, from and against, against any and shall compensate and reimburse each of the Purchaser Indemnitees for, any Damages that are directly or indirectly suffered or incurred all Losses actually sustained by any of such Persons following the Purchaser Indemnitees or to which any of the Purchaser Indemnitees may otherwise become subject Closing resulting from: (regardless of whether or not such Damages relate to any third-party claim) and that arise directly or indirectly from or as a direct or indirect result of, or are directly or indirectly connected with:
(ai) any Breach by the Shareholders breach of any a representation or warranty made by such Shareholder in Article III; (ii) any breach of a representation or warranty made by the Acquired Companies in Article IV; (iii) any breach by the Acquired Companies or such Shareholder of any agreement or covenant contained in this Agreement; and/or (iv) any claim by any Person for any brokerage or finder’s fee, commission or similar payment based upon any agreement or understanding alleged to have been made by such Person with the Acquired Companies or the Shareholders contained or representatives thereof in connection with this Agreement or any of the transactions contemplated hereby. To the extent any Shareholder pays more than such Shareholder’s Pro Rata Portion of any Losses, such Shareholder shall have the right to seek contribution from the other Transactional Agreement;Shareholder that paid less than his Pro Rata Portion of such Losses. This Section 10.1 shall not apply to Losses related to Taxes, which shall be the subject of Section 8.2.
(b) any Breach of any covenant No examination, inspection or audit of the properties, financial condition or other matters of the Acquired Company and the Business conducted by Parent, or Merger Sub in connection with this Agreement will in any way limit, affect or impair the ability of Parent or Merger Sub to rely on the representations, warranties, covenants and agreements made by the Acquired Companies or the Shareholders that are contained in this Agreement or any other Transactional Agreement; and
, the Schedules and Exhibits hereto and the Ancillary Agreements (c) any Proceeding relating directly or indirectly to any Breach, alleged Breach, Liability or matter of the type referred to in clauses "(a)" or "(b)" above (including any Proceeding commenced by any Purchaser Indemnitee for the purpose of enforcing any of its rights under this Section 6). The Purchaser Indemnitees shall not be entitled to indemnification pursuant except with respect to the provisions of this Section 6.2 until the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties pursuant to this Section 6.2 (and excluding any Damages arising pursuant to Section 6.3 below)) exceeds $100,000 (the "Basket Amount") (it being understood and agreed that the Basket Amount is intended as a deductibleAcquisition Agreement, and the Shareholders will not be liable for the first $100,000 of Damages for which the Purchaser Indemnitees are entitled to indemnification). Notwithstanding the foregoing, no Basket Amount shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. Subject to Sections 6.3 and 7.14 below, all of the indemnification obligations of either of the Shareholders shall be satisfied exclusively by deduction from the Escrow Shares; provided, that, each Shareholder may elect, at its sole option, to satisfy under such indemnification obligation in cash (the "Shareholder Cap"). Notwithstanding the foregoing, any Breach of any covenant (or any Proceeding relating directly or indirectly to any such failure or Breach) of the Shareholders contained in Sections 1.1, 1.2(b), 1.2(c), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 or 7.12 of this Agreement shall be satisfied exclusively agreement is governed by the payment in cash of the amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. For purposes of the indemnity obligations under Section 6, the value per share of Purchaser Series 1 Stock shall be deemed to be the Series 1 Value on the date of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a final, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that may be satisfied by the surrender of Escrow Shares shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) equal to the amount of the indemnification obligationAcquisition Agreement).
Appears in 1 contract
Sources: Merger Agreement (Flowers Foods Inc)
Indemnification by the Shareholders. The Shareholders severally (Subject to the limits set forth in this Article IX, each Shareholder severally, and not jointly) solely to the extent of his allocable portion of the Escrowed Shares whatever their Market Price, shall indemnify, defend and hold harmless the GST Companies and indemnify the Company and each of the Purchaser Indemnitees their directors and officers from and againstagainst any and all loss, liability, damage, costs and shall compensate expenses (including interest, penalties and reimburse each attorneys' fees) (collectively, "Losses") that the GST Companies, the Company or any of their affiliates may incur or become subject to arising out of or due to the following (individually, an "Indemnifiable Claim" and collectively, "Indemnifiable Claims" when used in the context of the Purchaser Indemnitees forCompany, the GST Companies or the Shareholders as the Indemnified Party (as defined below): (i) the claims of any Damages that are directly broker or indirectly suffered or incurred by any of the Purchaser Indemnitees or to which any of the Purchaser Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) and that arise directly or indirectly from or as a direct or indirect result of, or are directly or indirectly connected with:
(a) any Breach finder engaged by the Shareholders or by the Company prior to the Closing Date, (ii) any inaccuracy of any representation or the breach of any warranty of the Shareholders Company contained in Article III of this Agreement and (iii) any breach or failure of observance of any covenant, agreement or commitment made by the Company in this Agreement and required to be performed or fulfilled at or prior to the Closing Date. Each Shareholder severally, and solely to the extent of his allocable portion of the Escrowed Shares whatever their Market Price, shall reimburse the GST Companies and each controlling person for any reasonable and documented legal or any other Transactional Agreement;
(b) expenses reasonably incurred by them in connection with investigating or defending any Breach such loss, claim, liability, action or proceeding subject to the limitation set forth in Section 9.2. The provisions of any covenant of Article IX, including this Section 9.1, shall be acknowledged and agreed to by the Shareholders contained in this Agreement or any other Transactional Agreement; and
(c) any Proceeding relating directly or indirectly to any Breach, alleged Breach, Liability or matter of the type referred to in clauses "(a)" or "(b)" above (including any Proceeding commenced by any Purchaser Indemnitee for the purpose of enforcing any of its rights under this Section 6). The Purchaser Indemnitees shall not be entitled to indemnification pursuant to the provisions of this Section 6.2 until the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties pursuant to this Section 6.2 (and excluding any Damages arising pursuant to Section 6.3 below)) exceeds $100,000 (the "Basket Amount") (it being understood and agreed that the Basket Amount is intended as a deductible, and the Shareholders will not be liable for the first $100,000 of Damages for which the Purchaser Indemnitees are entitled to indemnification). Notwithstanding the foregoing, no Basket Amount shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. Subject to Sections 6.3 Acknowledgment and 7.14 below, all of the indemnification obligations of either of the Shareholders shall be satisfied exclusively by deduction from the Escrow Shares; provided, that, each Shareholder may elect, at its sole option, to satisfy such indemnification obligation in cash (the "Shareholder Cap"). Notwithstanding the foregoing, any Breach of any covenant (or any Proceeding relating directly or indirectly to any such failure or Breach) of the Shareholders contained in Sections 1.1, 1.2(b), 1.2(c), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 or 7.12 of this Agreement shall be satisfied exclusively by the payment in cash of the amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. For purposes of the indemnity obligations under Section 6, the value per share of Purchaser Series 1 Stock shall be deemed to be the Series 1 Value on the date of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a final, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that may be satisfied by the surrender of Escrow Shares shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) equal to the amount of the indemnification obligationAgreement.
Appears in 1 contract
Indemnification by the Shareholders. The Shareholders (a) Subject to the limitations set forth in this Article VIII, the Shareholders, severally (ie not solidarily) in accordance with their respective Proportionate Shares, shall indemnify and not jointly) shall hold harmless the Company, Purchaser, Therachon, their respective successors and indemnify assigns and the Representatives of each of the foregoing (collectively, the “Purchaser Indemnitees Indemnified Persons”) from and againstagainst any and all losses, costs, damages, liabilities, Taxes and shall compensate expenses, interest, penalties, judgments and reimburse each settlements (including reasonably foreseeable consequential and special damages and legal fees and expenses in connection therewith, but excluding punitive damages other than punitive damages awarded in respect of the any Third Party Claim) (collectively, “Damages”) incurred by Purchaser Indemnitees forIndemnified Persons and arising out of or related to, any Damages that are directly or indirectly suffered indirectly:
(i) any misrepresentation or incurred by breach of, or default in connection with, any of the Purchaser Indemnitees or to which representations and warranties made by the Company in Article III;
(ii) any breach of the Purchaser Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) and that arise directly or indirectly from or as a direct or indirect result of, or are directly or indirectly connected with:Specified Representation;
(aiii) any Breach breach of any covenant or agreement made by and to be performed by the Shareholders of any representation or warranty of the Shareholders contained Company in this Agreement or any other Transactional Agreement;
(biv) any Breach of any covenant breach of the Fundamental Representations;
(v) any claims made by or among the Shareholders contained in this Agreement or any other Transactional Agreement; andholders of Options with respect to allocation of the Closing Purchase Price or Closing Cash Payment or portion thereof, entitlement to any portion of the Closing Purchase Price or Closing Cash Payment;
(cvi) any fraud or intentional misrepresentation with respect to this Agreement;
(vii) any Proceeding relating directly or indirectly to any Breach, alleged Breach, Liability or matter breach of the type referred to in clauses "(a)" or "i) through (b)" v) above (including any Proceeding commenced by any Purchaser Indemnitee Indemnified Person for the purpose of enforcing any of its rights under this Section 6Article VIII). The Purchaser Indemnitees shall not be entitled to indemnification pursuant to the provisions of this Section 6.2 until the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties pursuant to this Section 6.2 (and excluding any Damages arising pursuant to Section 6.3 below)) exceeds $100,000 (the "Basket Amount") (it being understood and agreed that the Basket Amount is intended as a deductible, and the Shareholders will not be liable for the first $100,000 of Damages for which the Purchaser Indemnitees are entitled to indemnification). Notwithstanding the foregoing, no Basket Amount shall apply to (a) claims based on fraud or any claim in the nature of fraud or .
(b) claims Each Shareholder shall severally (i.e., not solidarily) indemnify and hold harmless the Indemnified Persons from and against all Damages incurred by Purchaser Indemnified Persons and arising pursuant to Section 6.3 below. Subject to Sections 6.3 and 7.14 belowout of or related to, all directly or indirectly:
(i) any misrepresentation or breach of, or default in connection with, any of the indemnification obligations of either of the Shareholders shall be satisfied exclusively representations and warranties made by deduction from the Escrow Shares; provided, that, each such Shareholder may elect, at its sole option, to satisfy such indemnification obligation contained in cash Article IV;
(the "Shareholder Cap"). Notwithstanding the foregoing, ii) any Breach breach of any covenant covenants or agreement made by and to be performed by such Shareholder in this Agreement;
(iii) fraud or intentional misrepresentation by such Shareholder;
(iv) any Proceeding relating directly or indirectly to any such failure or Breach) breach of the Shareholders contained in Sections 1.1, 1.2(b), 1.2(c), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 or 7.12 of this Agreement shall be satisfied exclusively type referred to clauses (i) through (iii) above (including any Proceeding commenced by any Purchaser Indemnified Person for the payment in cash of the amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. For purposes of the indemnity obligations enforcing any of its rights under Section 6, the value per share of Purchaser Series 1 Stock shall be deemed to be the Series 1 Value on the date of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a final, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that may be satisfied by the surrender of Escrow Shares shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) equal to the amount of the indemnification obligationthis Article VIII).
Appears in 1 contract
Indemnification by the Shareholders. The Shareholders Each Shareholder (collectively, the "Shareholder Indemnitors"), severally (and not jointly) in accordance with such Shareholder Indemnitor's Indemnification Percentage, as set out in the Consideration Allocation Spreadsheet, shall hold harmless and indemnify each of the Purchaser Indemnitees from and against, and shall compensate and reimburse each of the Purchaser Indemnitees for, any Damages that which are directly or indirectly suffered or incurred by any of the Purchaser Indemnitees or to which any of the Purchaser Indemnitees may otherwise directly or indirectly become subject (regardless of whether or not such Damages relate to any third-third party claim) and that which arise directly or indirectly from or as a direct or indirect result of, or are directly or indirectly connected with:
(ai) any Breach by the Shareholders inaccuracy in or breach of any representation or warranty of made by the Shareholders contained Company and/or any Shareholder in this Agreement or any other Transactional Agreementinstrument delivered in connection with the completion of the transactions contemplated herein;
(bii) any Breach inaccuracy in the Consideration Allocation Spreadsheet;
(iii) any breach of any covenant of the Shareholders contained or obligation in this Agreement or by such Shareholder. For clarity, each Shareholder shall be personally liable for any other Transactional Agreement; and
(c) any Proceeding relating directly or indirectly to any Breach, alleged Breach, Liability or matter of the type referred to in clauses "(a)" or "(b)" above (including any Proceeding commenced by any Purchaser Indemnitee for the purpose of enforcing any of its rights under this Section 6). The Purchaser Indemnitees shall not be entitled to indemnification pursuant to the provisions of this Section 6.2 until the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches breach of any representations covenant or warranties pursuant to this Section 6.2 (and excluding any Damages arising pursuant to Section 6.3 below)) exceeds $100,000 (the "Basket Amount") (it being understood and agreed that the Basket Amount is intended as a deductibleobligation made by such Shareholder, and the Shareholders will not no Shareholder shall be liable for the first $100,000 breach of Damages for which the Purchaser Indemnitees are entitled to indemnification). Notwithstanding the foregoingany covenant, no Basket Amount shall apply to obligation or representation of any other Shareholder;
(aiv) claims based on fraud or any claim inaccuracy in the nature of fraud or Pre-Closing Statement (b) claims arising pursuant to Section 6.3 below. Subject to Sections 6.3 and 7.14 belowincluding, all of the indemnification obligations of either of the Shareholders shall be satisfied exclusively by deduction from the Escrow Shares; provided, that, each Shareholder may elect, at its sole option, to satisfy such indemnification obligation in cash (the "Shareholder Cap"). Notwithstanding the foregoingwithout limitation, any Breach undisclosed Change of any covenant (Control Payment or any Proceeding relating directly or indirectly to any such failure or Breach) of the Shareholders contained in Sections 1.1, 1.2(bCompany Transaction Expense), 1.2(c), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 or 7.12 of this Agreement shall be satisfied exclusively by the payment in cash of the amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. For purposes of the indemnity obligations under Section 6, the value per share of Purchaser Series 1 Stock shall be deemed to be the Series 1 Value on the date of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a final, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that may be satisfied by the surrender of Escrow Shares shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) equal to the amount of the indemnification obligation.
Appears in 1 contract
Sources: Share Purchase Agreement (Trillium Therapeutics Inc.)
Indemnification by the Shareholders. The Shareholders severally (Subject to the provisions of this Article VIII, after the Closing, the Shareholders, in proportion to their Pro-Rata Share, shall severally, and not jointly) shall , indemnify and hold harmless Buyer, Merger Sub, the Surviving Corporation and indemnify their Affiliates, and the respective Representatives, successors and assigns of each of the Purchaser Indemnitees foregoing (the “Buyer Indemnified Parties”) from and against:
(a) any and all Losses asserted against, and shall compensate and reimburse each of the Purchaser Indemnitees forincurred, any Damages that are directly sustained by or indirectly suffered or incurred by imposed against any of the Purchaser Indemnitees or to which any of the Purchaser Indemnitees may otherwise become subject Buyer Indemnified Parties (regardless of whether or not such Damages Losses relate to any third-party claimThird Party Claim) and that arise directly or indirectly from or as a direct or indirect result of, arising out of or are directly or indirectly connected withrelating to:
(ai) any Breach by the Shareholders breach of any representation or warranty of made by the Shareholders Company contained in this Agreement or any other Transactional certificate delivered pursuant hereto;
(ii) any breach of any covenant or agreement by the Company contained in this Agreement;
(iii) (x) all Taxes (or the non-payment thereof) of the Company and the Subsidiaries for the Pre-Closing Tax Period, (y) any and all Taxes of any member of an affiliated, consolidated, combined, or unitary group of which the Company or any of the Subsidiaries (or any predecessor of any of the foregoing) is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation §1.1502-6 or any analogous or similar state, local, or non-U.S. law or regulation, and (z) any and all Taxes of any person (other than the Company and the Subsidiaries) imposed on the Company or any of the Subsidiaries as a transferee or successor, by contract or pursuant to any law, rule or regulation, which Taxes relate to an event or transaction occurring before the Closing; provided, however, that in the case of clauses (x), (y) and (z) above, the Shareholders shall be liable only to the extent that such Taxes are in excess of the amount, if any, reserved for such Taxes (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) and taken into account in determining the Closing Working Capital Amount;
(iv) any payments made in respect of Dissenting Shares in excess of the amounts payable for such shares pursuant to this Agreement;
(v) any Action by a shareholder of the Company in respect of any breach of fiduciary duty or derivative or other similar claim in respect of this Agreement or the transactions contemplated hereby; and
(vi) any investigation or remediation required pursuant to Environmental Laws with respect to any Release of Hazardous Materials prior to the Closing Date at the Real Property at Dowagiac, Michigan, Marnaz, France or Kamienna Gora, Poland arising out of an environmental condition identified in the Phase One environmental site assessment of such Real Property listed in Item 2 of Schedule 3.19; and
(b) any Breach of and all out-of-pocket costs incurred by any covenant of the Shareholders contained Buyer Indemnified Parties in this Agreement or any other Transactional Agreement; and
connection with (ci) any Proceeding relating directly or indirectly to any Breachexpenditures at the Marnaz, alleged Breach, Liability or matter of the type referred to in clauses "(a)" or "(b)" above (including any Proceeding commenced by any Purchaser Indemnitee France facility incurred for the purpose of enforcing any obtaining the Marnaz Permit, and (ii) the termination of its rights under this Section 6). The Purchaser Indemnitees shall not be entitled to indemnification pursuant employees, relocation of employees, and relocation of equipment at the Marnaz, France facility directly related to the provisions failure to obtain the Marnaz Permit, in each of this Section 6.2 until cases (i) and (ii), incurred over the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties pursuant to this Section 6.2 (and excluding any Damages arising pursuant to Section 6.3 below)) exceeds $100,000 (the "Basket Amount") (it being understood and agreed that the Basket Amount is intended as a deductible, and the Shareholders will not be liable for the first $100,000 of Damages for which the Purchaser Indemnitees are entitled to indemnification). Notwithstanding the foregoing, no Basket Amount shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. Subject to Sections 6.3 and 7.14 below, all course of the indemnification obligations of either of two-year period following the Shareholders shall be satisfied exclusively by deduction from the Escrow SharesClosing Date; provided, thathowever, each Shareholder may elect, at its sole option, to satisfy such that no indemnification obligation in cash (the "Shareholder Cap"). Notwithstanding the foregoing, any Breach of any covenant (or any Proceeding relating directly or indirectly to any such failure or Breach) of the Shareholders contained in Sections 1.1, 1.2(b), 1.2(c), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 or 7.12 of this Agreement shall be satisfied exclusively by available for such costs to the payment in cash of the amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or any claim extent that they are accounted for in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. For purposes of the indemnity obligations under Section 6, the value per share of Purchaser Series 1 Stock shall be deemed to be the Series 1 Value on the date of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a final, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that may be satisfied by the surrender of Escrow Shares shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) equal to the amount of the indemnification obligationCapex Budget.
Appears in 1 contract
Sources: Merger Agreement (Nn Inc)
Indemnification by the Shareholders. The Subject to the limitations set forth herein, from and after the Closing, the Shareholders will severally (and not jointly) shall defend, indemnify and hold harmless Acquirer, its controlled Affiliates, each of their respective Representatives and indemnify the successors and assigns of each of the Purchaser Indemnitees foregoing (collectively, the “Acquirer Indemnified Parties”), from and againstagainst and in respect of any and all losses, liabilities, damages, judgments, settlements and shall compensate and reimburse each of the Purchaser Indemnitees forexpenses, any Damages that are directly or indirectly suffered or including reasonable attorneys’ fees (collectively, “Losses”), incurred by any of the Purchaser Indemnitees Acquirer Indemnified Parties arising out of, based upon or related to which (i) any inaccuracy or breach of any of the Purchaser Indemnitees may otherwise become subject representations or warranties (regardless either when made or as if made as of whether the Closing Date) made by the Shareholders in this Agreement, (ii) any breach of or not failure to comply with any covenant or agreement made by the Shareholders in this Agreement, (iii) any Taxes incurred by either Company or the Shareholders with respect to taxable periods (or portions thereof) ending on or before the Closing Date, including, without limitation, any such Damages relate to any third-party claim) and that arise Taxes directly or indirectly from arising out of or as a direct relating to the consummation of the Stock Purchase or indirect result ofany of the other Contemplated Transactions; provided, or are directly or indirectly connected with:
however, that any Transfer Taxes shall be paid fifty percent (a50%) any Breach by the Shareholders of any representation and fifty percent (50%) by Acquirer, or warranty of the Shareholders contained in this Agreement or any other Transactional Agreement;
(biv) any Breach of any covenant of the Shareholders contained in this Agreement or any other Transactional Agreement; and
(c) any Proceeding relating directly or indirectly to any Breach, alleged Breach, Liability or matter of the type referred to in clauses "(a)" or "(b)" above (including any Proceeding commenced claims made by any Purchaser Indemnitee for the purpose of enforcing any of its rights under this Section 6). The Purchaser Indemnitees shall not be entitled to indemnification pursuant to the provisions of this Section 6.2 until the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations current or warranties pursuant to this Section 6.2 (and excluding any Damages arising pursuant to Section 6.3 below)) exceeds $100,000 (the "Basket Amount") (it being understood and agreed that the Basket Amount is intended as a deductibleformer employees, and the Shareholders will not be liable for the first $100,000 of Damages for which the Purchaser Indemnitees are entitled to indemnification). Notwithstanding the foregoing, no Basket Amount shall apply to (a) claims based on fraud officers or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. Subject to Sections 6.3 and 7.14 below, all of the indemnification obligations directors of either of the Companies or its Subsidiaries related to matters arising prior to the Closing Date or with respect to Contemplated Transactions, provided, however, that the Shareholders shall be satisfied exclusively by deduction from liable for Taxes pursuant to the Escrow Shares; provided, that, each Shareholder may elect, at its sole option, foregoing clause (iii) only to satisfy the extent that such indemnification obligation Taxes (A) are not Excluded Taxes and (B) are in cash (the "Shareholder Cap"). Notwithstanding the foregoing, any Breach of any covenant (or any Proceeding relating directly or indirectly to any such failure or Breach) of the Shareholders contained in Sections 1.1, 1.2(b), 1.2(c), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 or 7.12 of this Agreement shall be satisfied exclusively by the payment in cash excess of the amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. For purposes of the indemnity obligations under Section 6, the value per share of Purchaser Series 1 Stock shall be deemed to be the Series 1 Value specifically accrued for such Taxes on the date books and records of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a final, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that may be satisfied by the surrender of Escrow Shares shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) equal to the amount of the indemnification obligationeach Company.
Appears in 1 contract
Indemnification by the Shareholders. The Shareholders (a) Subject to the limitations contained in Section 8.2(b) and elsewhere in this Article VIII, each Shareholder and each holder of Executive Stock Options (collectively, the "Indemnifying Securityholders" and, individually, an "Indemnifying Securityholder"), severally (and not jointly) shall , will indemnify and hold harmless harmless, Buyer, its subsidiaries, Affiliates, each of their respective partners, directors, officers, employees and indemnify agents, and each of the Purchaser Indemnitees heirs, executors, successors and assigns of any of the foregoing (collectively, the "Buyer Indemnified Parties") from and against, and shall compensate and or pay or reimburse each of in the Purchaser Indemnitees manner set forth in Section 8.2(b) the Buyer Indemnified Parties for, such Indemnifying Securityholders' Pro-Rata Share (as set forth in Schedule 8.2(a)) of, any Damages that are directly and all Covered Liabilities actually incurred or indirectly suffered or incurred paid by any of the Purchaser Indemnitees or to which any of the Purchaser Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim) and that arise directly or indirectly from or Buyer Indemnified Parties as a direct or indirect result of, or are directly or indirectly connected with:
(ai) any Breach inaccuracy contained in, omission from or breach of, a representation and warranty made by the Shareholders of any representation or warranty of the Shareholders contained Company in this Agreement or in any document delivered at the Closing pursuant hereto (as the same has been modified by disclosure in the applicable Schedules); provided that for -------- purposes of determining whether an inaccuracy, omission or breach has occurred and the amount of Covered Liabilities arising therefrom any materiality, material adverse effect, substantial compliance or similar exception or qualification contained in or otherwise applicable to such representation or warranty shall be disregarded;
(ii) the nonfulfillment, nonperformance or other Transactional breach of any covenant or agreement of the Company contained in this Agreement;
(biii) any Breach liability or obligation, whether civil or criminal, arising out of or related to any covenant of the Shareholders contained Action required to be set forth in this Agreement or any other Transactional AgreementSchedule 3.12, but which is not set forth therein; and
(civ) any Proceeding relating directly or indirectly the matters set forth in Schedule 8.2(a)(iv); provided a Buyer Claims Notice with respect to any Breach, alleged Breach, Liability such Buyer Claim is given to -------- the Shareholders' Representatives on or prior to the Survival Period Termination Date applicable to the subject matter of the type referred to in clauses "(a)" or "such Buyer Claims Notice.
(b)" above (including any Proceeding commenced by any Purchaser Indemnitee for the purpose of enforcing any of its rights under this Section 6). The Purchaser Indemnitees shall not be entitled to indemnification pursuant to the provisions of this Section 6.2 until the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties pursuant to this Section 6.2 (and excluding any Damages arising pursuant to Section 6.3 below)) exceeds $100,000 (the "Basket Amount") (it being understood and agreed that the Basket Amount is intended as a deductible, and the Shareholders will not be liable for the first $100,000 of Damages for which the Purchaser Indemnitees are entitled to indemnification). Notwithstanding the foregoing, no Basket Amount shall apply to except for common law fraud, (ai) claims based on fraud or any claim in the nature of fraud or (b) claims arising Buyer Claims pursuant to Section 6.3 below. Subject 8.2(a) (other than with respect to the representations and warranties set forth in Sections 6.3 3.2) shall be settled solely and 7.14 below, all exclusively by adjustment to the Merger Consideration out of the indemnification obligations of either General Escrow Fund in accordance with the terms of the Shareholders shall Escrow Agreement and (ii) Buyer Claims with respect to a breach of the representations and warranties set forth in Section 3.2 shall, if and to the extent there are sufficient funds in the Special Escrow Fund, be satisfied exclusively settled by deduction from adjustment of the Merger Consideration out of the Special Escrow SharesFund; provided, provided that, each Shareholder may elect, at its sole option, if and to satisfy such indemnification obligation in cash (the "Shareholder Cap"). Notwithstanding extent that the foregoing, any Breach of any covenant (or any Proceeding relating directly or indirectly to any such failure or Breach) -------- aggregate sum of the Shareholders contained in Sections 1.1, 1.2(b), 1.2(c), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 Covered Liabilities arising out of or 7.12 of this Agreement shall be satisfied exclusively by the payment in cash related to breaches of the amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or any claim representations and warranties in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. For purposes of the indemnity obligations under Section 6, the value per share of Purchaser Series 1 Stock shall be deemed to be the Series 1 Value on the date of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a final, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that may be satisfied by the surrender of Escrow Shares shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) equal to 3.2 exceed the amount of the indemnification obligation.monies available for payment to the Buyer Indemnified Parties out of the Special Escrow Fund, each Indemnifying Securityholder, severally and not jointly, shall indemnify and hold harmless the Buyer Indemnified Parties from and against such Indemnifying Securityholder's Allocable Share (as set forth in Schedule 8.5) of such excess (the "Excess Section 3.2
Appears in 1 contract
Sources: Merger Agreement (Collins & Aikman Floor Coverings Inc)
Indemnification by the Shareholders. The Shareholders shall be jointly and severally (responsible and not jointly) shall liable for, and hereby agree to indemnify, defend and hold harmless the Buyer, SICC and indemnify each of the Purchaser Indemnitees their respective officers, directors, managers, agents, employees, successors and permitted assigns, at all times from and againstafter the Closing, from, against and in respect of all losses, damages, liabilities, deficiencies, Taxes, and shall compensate and reimburse each of the Purchaser Indemnitees for, any Damages that are directly expense (“Loss” or indirectly suffered or incurred by any of the Purchaser Indemnitees or to which any of the Purchaser Indemnitees may otherwise become subject (regardless of whether or not such Damages relate to any third-party claim“Losses”) and that arise directly or indirectly resulting from or as a direct or indirect result of, or are directly or indirectly connected with:
(a) any Breach by the Shareholders failure, untruth, inaccuracy or breach of any representation or warranty of the Shareholders or SICC contained in this Agreement or in any other Transactional Agreement;
agreement, Schedule or certificate delivered pursuant hereto or in connection herewith; (b) any Breach breach or non-fulfillment of any covenant or agreement of the Shareholders contained SICC or any Shareholder made in this Agreement or in any other Transactional Agreementagreement, Schedule or certificate delivered pursuant hereto or in connection herewith; and
(c) Taxes for which the Shareholders are responsible in accordance with Article 7 of this Agreement, or any Proceeding relating directly liability of SICC to make payments to or indirectly indemnify any other Person with respect to Taxes, for any Taxable period or portion thereof ending on or before the Closing Date; and, (d) all actions, suits, proceedings, claims, demands, assessments, judgments, fines, penalties, amounts properly and reasonably paid in settlement to any Breachthird party, alleged Breach, Liability or matter and costs and expenses (including reasonable attorneys’ fees and expenses) incident to any of the type referred to in clauses "(a)" or "(b)" above (including any Proceeding commenced by any Purchaser Indemnitee for the purpose of enforcing any of its rights under this Section 6)foregoing. The Purchaser Indemnitees Shareholders shall not be entitled to indemnification pursuant to the provisions of this Section 6.2 until the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from liable for any other Breaches of any representations or warranties indemnity pursuant to this Section 6.2 (and excluding any Damages arising pursuant to Section 6.3 below)) exceeds $100,000 (the "Basket Amount"10.1(a) (it being understood other than claims with respect to the Shareholder Transaction Representations and agreed that claims arising from Section 7.1, which shall not be subject to this limitation) until the Basket Amount is intended as a deductibleaggregate of all Losses incurred by Buyer exceed $500,000, and the Shareholders will not be liable for the first $100,000 of Damages for which the Purchaser Indemnitees are entitled to indemnification). Notwithstanding the foregoing, no Basket Amount shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. Subject to Sections 6.3 and 7.14 below, all of the indemnification obligations of either of then the Shareholders shall be satisfied exclusively by deduction from liable for all such Losses beginning with the Escrow Shares; provided, that, each Shareholder may elect, at its sole option, to satisfy first dollar of such indemnification obligation in cash (the "Shareholder Cap")Loss. Notwithstanding the foregoing, any Breach of any covenant (foregoing or any Proceeding relating directly or indirectly to any such failure or Breach) of the Shareholders contained in Sections 1.1, 1.2(b), 1.2(c), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 or 7.12 other provision of this Agreement shall be satisfied exclusively by the payment in cash of the amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or any claim Related Document to the contrary, in no event shall the Shareholders, individually or collectively, be liable to Buyer for any claims for indemnity pursuant to this Section 10.1(a) (other than claims with respect to Shareholder Transaction Representations and claims arising from Section 7.1, which shall not be subject to this limitation) related to this Agreement or the transactions contemplated hereby, whether by indemnification or otherwise, for more than the funds held in the nature of fraud or (b) claims arising Escrow pursuant to Section 6.3 below. For purposes of the indemnity obligations under Section 6, the value per share of Purchaser Series 1 Stock shall be deemed to be the Series 1 Value on the date of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a final, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that may be satisfied by the surrender of Escrow Shares shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) equal to the amount of the indemnification obligation1.2.
Appears in 1 contract
Sources: Stock Purchase Agreement (Fairpoint Communications Inc)
Indemnification by the Shareholders. The Shareholders (i) Subject to the provisions of Section 8.1, Section 8.2(a) and Section 8.4 hereof, the Shareholders, severally (in accordance with their respective Shareholder Percentage, shall indemnify and not jointly) shall hold harmless Parent and indemnify each of the Purchaser Indemnitees Surviving Company, Sub and their directors, officers, employees, Affiliates, and agents (collectively, an “indemnitee”) at all times from and againstafter the Closing Date, against and shall compensate and reimburse each in respect of the Purchaser Indemnitees for, Losses arising from or relating to: (A) any Damages that are directly or indirectly suffered or incurred by breach of any of the Purchaser Indemnitees representations or warranties made by DAI or Shareholders in this Agreement, including, but not limited to, Section 4.19(b); (B) any breach of the covenants and agreements made by DAI or Shareholders in this Agreement; (C) any claims made by third parties that were not included on the schedules herein as actual or potential claims or liabilities, including, but not limited to, any claims for indemnification and by any taxing authority, arising from the operations of the DAI Business or any DAI agreements, transactions or contracts entered into prior to which and through the Closing Date; (D) any liability for any transactions or agreements between any of DAI’s current or former shareholders, Shareholders, officers, directors or employees entered into prior to and through the Purchaser Indemnitees may otherwise become subject Closing Date that were not included on the schedules herein as actual or potential claims or liabilities; and (regardless E) the enforcement by Parent and Sub or other Indemnitee of whether or not such Damages relate their rights to be indemnified, defended and held harmless under this Agreement.
(ii) No claim for indemnification shall be asserted against the Shareholders with respect to any third-single Loss in an amount less than $5,000, it being understood that the aggregate amount of all Losses arising from the same operative facts and circumstances shall be deemed a single Loss (a claim asserted against the Shareholders for a single Loss in excess of $5,000 being herein referred to as an “indemnifiable claim”). No Loss shall be deemed to have been sustained to the extent of any proceeds received by Sub or Parent or any other party claim) and that arise directly or indirectly from or as a direct or indirect result of, or are directly or indirectly connected with:
(a) any Breach indemnified by the Shareholders hereunder from any insurance policy with respect thereto.
(iii) No amount shall be payable by the Shareholders with respect to any Indemnifiable Claims unless and until the aggregate amount of such Indemnifiable Claims payable by the Shareholders exceeds $75,000. Payment shall include the aggregate claims up to the initial $75,000.
(iv) The Shareholders’ aggregate liability for indemnification hereunder shall not exceed the fair market value of the Escrowed Shares as calculated on the Closing Date (the “Shareholders’ Liability Limit”). Each Shareholder’s individual liability for indemnification hereunder shall not exceed their Shareholder Percentage of the Shareholder’s Liability Limit. The Shareholder’s liability for payment of Indemnifiable Claims hereunder shall be limited exclusively to Parent’s right to receive for cancellation an appropriate number of Escrowed Shares pursuant to Section 8.4 of this Agreement and the Escrow Agreement. Notwithstanding the terms of this paragraph or any other provision of this Agreement or the Operative Documents, (i) Shareholders at their option may settle any Indemnifiable Claim by paying the full amount of the Indemnifiable Claim in cash, and (ii) Shareholders’ Liability Limit shall not apply to Osmose for any claim made by any party against Osmose or any party hereto, related to the treatment or usage of any representation or warranty materials containing chromated copper arsenate (“CCA”); provided, however, that this subparagraph (ii) shall in no event be construed as an admission by Osmose of any liability whatsoever related to CCA, nor shall this subparagraph (ii) imply that this Agreement creates any separate obligation on the Shareholders contained part of Osmose to indemnify any party with respect to claims related to CCA beyond what is specifically provided for elsewhere in this Agreement or in any other Transactional Agreement;valid agreement to which Osmose is a party.
(bv) any Breach An Indemnifiable Claim based upon a purported misrepresentation or breach of any warranty or covenant of by DAI or Shareholders must first be asserted within three (3) years from the Shareholders contained in this Agreement or any other Transactional Agreement; and
(c) any Proceeding relating directly or indirectly to any Breach, alleged Breach, Liability or matter of Closing Date. Any Indemnifiable Claim that is not asserted within the type referred to in clauses "(a)" or "(b)" period provided above (including any Proceeding commenced by any Purchaser Indemnitee for the purpose of enforcing any of its rights under this Section 6). The Purchaser Indemnitees shall not be entitled to indemnification pursuant to the provisions of this Section 6.2 until the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties pursuant to this Section 6.2 (and excluding any Damages arising pursuant to Section 6.3 below)) exceeds $100,000 (the "Basket Amount") (it being understood and agreed that the Basket Amount is intended as a deductible, and the Shareholders will not be liable for the first $100,000 of Damages for which the Purchaser Indemnitees are entitled to indemnification). Notwithstanding the foregoing, no Basket Amount shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. Subject to Sections 6.3 and 7.14 below, all of the indemnification obligations of either of the Shareholders therefor shall be satisfied exclusively by deduction from the Escrow Shares; provided, that, each Shareholder may elect, at its sole option, to satisfy such indemnification obligation in cash (the "Shareholder Cap"). Notwithstanding the foregoing, any Breach of any covenant (or any Proceeding relating directly or indirectly to any such failure or Breach) of the Shareholders contained in Sections 1.1, 1.2(b), 1.2(c), 1.4, 1.6, 4.1, 4.2(b), 6.1(e), 6.3, 6.4, 6.5, 6.6, 7.7, 7.8, 7.10 or 7.12 of this Agreement shall be satisfied exclusively by the payment in cash of the amount thereof. Notwithstanding the foregoing, no limitation shall apply to (a) claims based on fraud or any claim in the nature of fraud or (b) claims arising pursuant to Section 6.3 below. For purposes of the indemnity obligations under Section 6, the value per share of Purchaser Series 1 Stock shall be deemed to be the Series 1 Value on the date of a written settlement agreement executed on behalf of the indemnifying party or parties or on the date of receipt of a final, non-appealable judgment issued by a court of competent jurisdiction; any indemnification obligation that may be satisfied by the surrender of Escrow Shares shall be satisfied by transfer of that number of Escrow Shares with a value (based on such Series 1 Value) equal to the amount of the indemnification obligationforever barred.
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