Survival Indemnification Certain Remedies. 12.1 The representations and warranties of Seller and Buyer contained in this Agreement shall survive the Closing for the period of three years after the Closing Date (the "Indemnification Deadline"); provided, however, that the representations and warranties of Seller and Shareholder shall survive the Closing and continue in full force and effect forever thereafter in the event of (i) any intentional or willful breaches of the representations or warranties set forth in Section , (ii) any intentional or willful failure to perform any covenant hereunder, (iii) any Excluded Liabilities or (iv) any other intentional fraud committed by Seller under this Agreement or otherwise. It being understood that in the event notice of any claim for indemnification under Section or has been given prior to the Indemnification Deadline, the representations and warranties that are the subject of such indemnification claim shall survive with respect to such claim until such time as such claim is finally resolved. 12.2 Seller and Shareholder jointly and severally hereby agree that from and after the Closing they shall indemnify, defend and hold harmless Buyer and its directors, officers, shareholders, agents, representatives and employees and their heirs, successors and permitted assigns, each in their capacity as such (the "Buyer Indemnified Parties") from, against and in respect of any damages, losses, charges, liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, taxes, interest, penalties, and costs and expenses (including removal costs, remediation costs, closure costs, fines, penalties and expenses of investigation and ongoing monitoring, reasonable attorneys' fees, and reasonable out of pocket disbursements) (collectively, "Losses") imposed on, sustained, incurred or suffered by, or asserted against, any of the Buyer Indemnified Parties, whether in respect of third party claims, claims between the parties hereto, or otherwise, directly or indirectly relating to, arising out of or resulting from (i) any breach of any representation or warranty made by Seller or Shareholder contained in this Agreement, (ii) any breach of any covenant or agreement of Seller or Shareholder contained in this Agreement, (iii) any Excluded Liability and (iv) failure to comply with any applicable bulk sale laws. 12.3 Buyer hereby agrees that from and after the Closing it shall indemnify, defend and hold harmless Seller and its directors, officers, shareholders, agents, representatives and employees and their heirs, successors and permitted assigns, each in their capacity as such (the "Seller Indemnified Parties" and together with the Buyer Indemnified Parties, the "Indemnified Parties") from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of the Seller Indemnified Parties, whether in respect of third party claims, claims between the parties hereto, or otherwise, directly or indirectly relating to, arising out of or resulting from (i) any breach of any representation or warranty made by Buyer contained in this Agreement, (ii) any of the Assumed Liabilities, (iii) any breach of a covenant or agreement of Buyer contained in this Agreement, and (iv) Buyer's operation or ownership of the Purchased Assets or the Business following the Closing. 12.4 In the event that any written claim or demand for which an indemnifying party (an "Indemnifying Party") may have liability to any Indemnified Party hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a "Third Party Claim"), such Indemnified Party shall promptly, but in no event more than 10 days following such Indemnified Party's receipt of a Third Party Claim, notify the Indemnifying Party in writing of such Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a "Claim Notice"); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third Party Claim. The Indemnifying Party shall have 30 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the "Notice Period") to notify the Indemnified Party that it desires to defend the Indemnified Party against such Third Party Claim. 12.5 In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, or (ii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, as provided in the first sentence of Section . The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third Party Claim on a basis that would result in (i) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any of its affiliates, (ii) a finding or admission of a violation of law or violation of the rights of any Person by the Indemnified Party or any of its affiliates, (iii) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its affiliates, or (iv) any monetary liability of the Indemnified Party that will not be promptly paid or reimbursed by the Indemnifying Party. 12.6 If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise or (ii) after assuming the defense of a Third Party Claim, fails to take reasonable steps necessary to defend diligently such Third Party Claim within 10 days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. The Indemnified Party shall not settle a Third Party Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld. 12.7 Notwithstanding anything to the contrary contained in this Agreement, no party shall be liable under this Section for any consequential, punitive, special, incidental or indirect damages, including lost profits, except to the extent awarded by a court of competent jurisdiction in connection with a Third Party Claim. 12.8 The rights and remedies of Seller and Buyer under this Section are in addition to any and all other rights and remedies that Seller and Buyer may have under this Agreement or otherwise.
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Sources: Asset Purchase Agreement, Asset Purchase Agreement (Lenco Mobile Inc.)
Survival Indemnification Certain Remedies. 12.1 (a) The representations and warranties of Seller and Buyer contained in this Agreement shall survive the Closing for the period of three years one year after the Closing Date (the "“Indemnification Deadline"”); provided, however, that the representations and warranties of Seller and Shareholder shall survive the Closing and continue in full force and effect forever thereafter in the event of (ia) any intentional or willful breaches of the representations or warranties set forth in Section 6, (iib) any intentional or willful failure to perform any covenant hereunder, (iiic) any Excluded Liabilities or (ivd) any other intentional fraud committed by Seller under this Agreement or otherwise. It being understood that in the event notice of any claim for indemnification under Section 15(b) or Section 15(d) hereof has been given (within the meaning of Section 15) prior to the Indemnification Deadline, the representations and warranties that are the subject of such indemnification claim shall survive with respect to such claim until such time as such claim is finally resolved.
12.2 (b) Seller and Shareholder jointly and severally hereby agree agrees that from and after the Closing they it shall indemnify, defend and hold harmless Buyer and its directors, officers, shareholders, agents, representatives and employees and their heirs, successors and permitted assigns, each in their capacity as such (the "“Buyer Indemnified Parties"” collectively with the Seller Indemnified Parties, the “Indemnified Parties”) from, against and in respect of any damages, losses, charges, liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, taxes, interest, penalties, and costs and expenses (including removal costs, remediation costs, closure costs, fines, penalties and expenses of investigation and ongoing monitoring, reasonable attorneys' ’ fees, and reasonable out of pocket disbursements) (collectively, "“Losses"”) imposed on, sustained, incurred or suffered by, or asserted against, any of the Buyer Indemnified Parties, whether in respect of third party claims, claims between the parties hereto, or otherwise, directly or indirectly relating to, arising out of or resulting from from, subject to Section 15(c), (i) any breach of any representation or warranty made by Seller or Shareholder contained in this Agreement, Agreement for the period such representation or warranty survives and (ii) any breach of any covenant or agreement of Seller or Shareholder contained in this Agreement.
(c) Seller shall not be liable to the Buyer Indemnified Parties for any Losses with respect to the matters contained in Section 15(b) unless the Losses therefrom exceed an aggregate amount equal to $10,000. Once Losses exceed the aggregate amount of $10,000, Seller shall be liable to Buyer for all amounts incurred by such Losses. Seller’s liability for Buyer’s Losses relating to unintentional breaches of the representations and warranties set forth in Section 6 will not exceed the aggregate amount of $1,100,000; provided, however, that there shall be no limitation on Seller’s indemnification obligations hereunder with respect to any Losses that Buyer suffers resulting from (a) any intentional or willful breaches of the representations or warranties set forth in Section 6, (iiib) any intentional or willful failure to perform any covenant hereunder, (c) any Excluded Liability and Liabilities or (ivd) failure to comply with any applicable bulk sale lawsother intentional fraud committed by Seller under this Agreement or otherwise.
12.3 (d) Buyer hereby agrees that from and after the Closing it shall indemnify, defend and hold harmless Seller and its directors, officers, shareholders, agents, representatives and employees and their heirs, successors and permitted assigns, each in their capacity as such (the "“Seller Indemnified Parties" and together with the Buyer Indemnified Parties, the "Indemnified Parties"”) from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of the Seller Indemnified Parties, whether in respect of third party claims, claims between the parties hereto, or otherwise, directly or indirectly relating to, arising out of or resulting from (i) any breach of any representation or warranty made by Buyer contained in this AgreementAgreement for the period such representation or warranty survives, (ii) any of the Assumed Liabilities, (iii) any breach of a covenant or agreement of Buyer contained in this Agreement, and (iv) Buyer's ’s operation or ownership of the Purchased Assets or the Business following the Closing.
12.4 (e) Buyer shall not be liable to the Seller Indemnified Parties for any Losses with respect to the matters contained in Section 15(d) unless the Losses therefrom exceed an aggregate amount equal to $10,000. Once Losses exceed the aggregate amount of $10,000, Buyer shall be liable to Seller for all amounts incurred by such Losses. Buyer’s liability for Seller’s Losses relating to unintentional breaches of the representations and warranties set forth in Section 7 will not exceed the aggregate amount of $1,100,000; provided, however, that there shall be no limitation on Buyer’s indemnification obligations hereunder with respect to any Losses that Seller suffers resulting from (a) any intentional or willful breaches of the representations or warranties set forth in Section 7, (b) any intentional or willful failure to perform any covenant hereunder, (c) any Assumed Liabilities or (d) any other intentional fraud committed by Seller under this Agreement or otherwise.
(f) In the event that any written claim or demand for which an indemnifying party (an "“Indemnifying Party"”) may have liability to any Indemnified Party hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a "“Third Party Claim"”), such Indemnified Party shall promptly, but in no event more than 10 ten days following such Indemnified Party's ’s receipt of a Third Party Claim, notify the Indemnifying Party in writing of such Third Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a "“Claim Notice"”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third Party Claim. The Indemnifying Party shall have 30 days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the "“Notice Period"”) to notify the Indemnified Party that it desires to defend the Indemnified Party against such Third Party Claim.
12.5 (g) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party shall participate in any such defense at its expense unless (i) the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, or (ii) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently pursue a Third Party Claim it has assumed, as provided in the first sentence of Section 15(h). The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third Party Claim on a basis that would result in (i) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any of its affiliates, (ii) a finding or admission of a violation of law or violation of the rights of any Person person by the Indemnified Party or any of its affiliates, (iii) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its affiliates, or (iv) any monetary liability of the Indemnified Party that will not be promptly paid or reimbursed by the Indemnifying Party.
12.6 If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise or (ii) after assuming the defense of a Third Party Claim, fails to take reasonable steps necessary to defend diligently such Third Party Claim within 10 days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party's right to indemnification for a Third Party Claim shall not be adversely affected by assuming the defense of such Third Party Claim. The Indemnified Party shall not settle a Third Party Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld.
12.7 Notwithstanding anything to the contrary contained in this Agreement, no party shall be liable under this Section for any consequential, punitive, special, incidental or indirect damages, including lost profits, except to the extent awarded by a court of competent jurisdiction in connection with a Third Party Claim.
12.8 The rights and remedies of Seller and Buyer under this Section are in addition to any and all other rights and remedies that Seller and Buyer may have under this Agreement or otherwise.or
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