TO INDEMNIFY, DEFEND AND HOLD HARMLESS IN THE MANNER
AND SUBJECT TO THE LIMITATIONS AND QUALIFICATIONS SET FORTH IN THIS ARTICLE 11
THE SELLER, ANY SUBSIDIARY OR AFFILIATE OF SELLER AND EACH OF SELLER'S AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, STOCKHOLDERS, CONTROLLING PERSONS, EMPLOYEES,
AGENTS, REPRESENTATIVES, SUCCESSORS AND PERMITTED ASSIGNS (COLLECTIVELY, THE
"INDEMNIFIED SELLER GROUP") AGAINST, AND HOLD THE INDEMNIFIED SELLER GROUP
HARMLESS FROM AND IN RESPECT OF, ANY AND ALL LOSSES, LIABILITIES, DAMAGES,
DEFICIENCIES, COSTS, EXPENSES (INCLUDING, EXPENSES OF INVESTIGATION AND DEFENSE
AND REASONABLE FEES, DISBURSEMENTS AND EXPENSES OF COUNSEL INCURRED BY THE
INDEMNIFIED SELLER GROUP IN ANY ACTION OR PROCEEDING (INCLUDING, WITHOUT
LIMITATION, ANY ACTION OR PROCEEDING TO ENFORCE THE RIGHTS OF THE INDEMNIFIED
SELLER GROUP HEREUNDER) BETWEEN THE INDEMNIFIED SELLER GROUP AND THE BUYER OR
BETWEEN THE INDEMNIFIED SELLER GROUP AND ANY THIRD PARTY OR OTHERWISE), CLAIMS,
LIENS OR OTHER OBLIGATIONS OF ANY NATURE WHATSOEVER (COLLECTIVELY, "SELLER
LOSSES"), BASED UPON, ARISING OUT OF, OR OTHERWISE IN RESPECT OF OR WHICH MAY BE
INCURRED BY VIRTUE OF OR RESULT FROM:
(I)
THE INACCURACY IN OR BREACH OF ANY REPRESENTATION OR WARRANTY
MADE BY OR ON BEHALF OF THE BUYER IN THIS AGREEMENT OR IN ANY OF THE OTHER
TRANSACTION DOCUMENTS OR IN ANY DOCUMENT OR INSTRUMENT DELIVERED AT THE CLOSING
PURSUANT HERETO OR THERETO;
(II)
THE BREACH BY THE BUYER OF ANY COVENANT OR AGREEMENT SET FORTH IN
THIS AGREEMENT OR IN ANY OF THE OTHER TRANSACTION DOCUMENTS OR IN ANY DOCUMENT
OR INSTRUMENT DELIVERED AT THE CLOSING PURSUANT HERETO OR THERETO;
41
(III)
ANY INVESTIGATION OR REQUEST FOR INFORMATION MADE BY A
GOVERNMENTAL AUTHORITY REGARDING BUYER OR ITS OPERATIONS OR, TO THE EXTENT
ARISING FROM AN INVESTIGATION OR INQUIRY INTO BUYER OR ITS OPERATIONS, THE
TRANSACTIONS CONTEMPLATED HEREBY;
(IV)
ANY LIABILITY OR OBLIGATION OF, OR CLAIM AGAINST, THE SELLER WITH
RESPECT TO ALL OR ANY PORTION OF THE BUSINESS OR THE ACQUIRED ASSETS (INCLUDING,
THE ASSUMED CONTRACTS) (X) RELATING TO ANY PERIOD ON OR AFTER THE CLOSING DATE
(OTHER THAN THE EXCLUDED LIABILITIES) OR (Y) ARISING OUT OF ANY ACT OR OMISSION
OF THE BUYER OR ANY FACTS AND CIRCUMSTANCES WHICH DID NOT EXIST AT OR PRIOR TO
THE CLOSING DATE (OTHER THAN THE EXCLUDED LIABILITIES);
(V)
ANY FAILURE BY BUYER TO PAY, PERFORM OR DISCHARGE WHEN DUE ANY OF
THE ASSUMED LIABILITIES;
(VI)
THE OPERATION OF THE BUSINESS BY BUYER FROM AND AFTER THE CLOSING
(INCLUDING THE TERMINATION OF EMPLOYMENT OF ANY TRANSFERRED EMPLOYEE).
THE BUYER SHALL HAVE NO RIGHT TO SEEK CONTRIBUTION FROM THE SELLER WITH RESPECT
TO ALL OR ANY PART OF THE BUYER'S INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION
11.2(B); PROVIDED THAT THE FOREGOING SHALL NOT RESTRICT THE RIGHTS GRANTED
PURSUANT TO SECTION 11.7 HEREOF.
11.3
Limitations on Indemnity.
(a) Seller's obligations to the Indemnified
Buyer Group set forth in Section 11.2(a) shall be subject to each of the
following limitations:
(I)
OTHER THAN WITH RESPECT TO BUYER LOSSES ARISING OUT OF AN
INACCURACY OR BREACH OF THE REPRESENTATIONS AND WARRANTIES IN SECTION 5.11(A)