Fill and Sign the Mo Rev Stat351459 Section 351459 Definitions Form

§ 23.07 Indemnification—L ong-Form Provi sion Page 662 Article X—INDE MNIFICAT ION [Insert the follo wing definitions into the Definitions article.] “Affiliate” means, with respect to any person or entity, each stockholder, subsidiary, officer, director, agent, and employee of that person or entity. “Claim” has the meaning assigned in Section X.09(a). “Indemnifiable Losses” means the aggregate of Losses and Litigation Expenses. “Indemnitee” means any person who makes a claim for indemnification under this Article, and each Affiliate of the Indemnitee. “Indemnitor” means any person against whom an Indemnitee makes a claim for indemnification under this Article. “Litigation Expense” means any court filing fee, court cost, arbitration fee or cost, witness fee, and each other fee and cost of investigating and defending or asserting a claim for indemnification under this Article, including, without limitation, in each case, attorneys’ fees, other professionals’ fees, and disbursements. “Loss” means any liability, loss, claim, settlement payment, cost and expense, interest, award, judgment, damages (including punitive damages), diminution in value, fines, fees, and penalties or other charge, other than a Litigation Expense. “Third Party Claim” has the meaning assigned in Section X.10(a). Section X.01. Indemni fication of B uyer. Subject to the limitations set forth in Section X.03 [Survival of Representations and Warranties], Section X.05 [Basket], Section X.06 [Limitation of Indemnity Obligations], and Section X.07 [Taxes], Seller and ParentCo. shall indemnify Buyer against all Indemnifiable Losses arising out of or relating to any one or more of the following: (a) Any [material] misrepresentation or breach of warranty by Seller of any representation or warranty set forth in this Agreement [or any Closing Document that Seller delivered]. (b) Any [material] breach by Seller of any covenant or other agreement set forth in this Agreement [or any Closing Document that Seller delivered]. (c) Seller’s failure to pay or discharge any Retained Liabilities. (d) The claim referred to in Item ___ of Section ___ of Seller’s Disclosure Schedule pertaining to the action to hold Seller responsible for the [insert the disclosed liability against which Seller will indemnify Buyer]. Section X.02. Indemni fication of Seller. Subject to the limitations set forth in [the Sections, if any, setting forth the contractual statute of limitations, the basket, and limitation on indemnity obligations with respect to indemnification of Seller], Buyer shall indemnify Seller and ParentCo. against all Indemnifiable Losses arising out of or relating to any one or more of the following: (a) Any [material] misrepresentation or breach of warranty by Buyer of any representation or warranty set forth in this Agreement [or any Closing Document that Buyer delivered]. (b) Any [material] breach by Buyer of any covenant or other agreement set forth in this Agreement [or any Closing Document that Buyer delivered]. (c) Buyer’s failure to pay or discharge any Assumed Liabilities. Section X.03. Survival of Representat ions and Warranties. Except as otherwise provided, the representations and warranties contained in Article [insert the number of the Article containing Seller’s representations and warranties] survive the Closing Date to and including the day immediately preceding the second anniversary of the Closing Date; except that (a) the representations and warranties contained in Section [insert the number of the Section that sets forth the representation and warranty concerning taxes] survive the Closing Date to and including the 60th day after the expiration of the applicable statutes of limitation for the assessment of Taxes; (b) if any representation or warranty contained in Article [insert the number of the Article containing Seller’s representations and warranties] is fraudulently given, it survives the Closing Date for an unlimited period of time; and (c) any representation or warranty that is the subject of a claim or action survives until either (i) the claim is resolved or the action is final (including any appeals); or (ii) payment in respect of any claim or action, if any is owing, is paid, but only if the party asserting the claim or prosecuting the action gives notice pursuant to Section X.10. Section X.04. Right to Rely Despite Investigati on. Buyer is entitled to rely fully upon the representations, warranties, and covenants of Seller set forth in this Agreement and upon the accuracy of any [document, certificate, Exhibit or Schedule] [Transaction Document] given or delivered to Buyer contemporaneously with the execution of this Agreement or at the Closing despite, in each instance, (a) any right of Buyer to investigate fully the affairs of Seller; and (b) any knowledge of facts determined or determinable by Buyer pursuant to its investigation or right of investigation. Section X.05. Basket. Buyer is entitled to seek indemnification under this Article only when the aggregate of its Indemnifiable Losses exceeds $_______, in which case Seller and ParentCo. shall indemnify Buyer pursuant to this Article from the first dollar of the Indemnifiable Losses. Section X.06. Limitatio n of Indemnity Obligations. The aggregate obligations of Seller and ParentCo. under this Article are limited to $_______, except that the obligations are unlimited with respect to any Indemnifiable Loss arising out of or relating to fraud or willful misconduct by Seller or ParentCo. Section X.07. Tax es. (a) Net Tax Benefit Payment. If an Indemnitor is liable to an Indemnitee under this Article, the Indemnitee shall pay the Indemnitor an amount equal to the value of any net Tax benefit that the Indemnitee actually realized and used to reduce its otherwise payable Taxes. (b) Purchase Price Adjustmen t. For purposes of determining the net Tax benefit of any payment to Seller, the payment is presumed to be a Purchase Price adjustment rather than constituting taxable income to Seller, unless Buyer provides Seller an opinion of nationally recognized tax counsel that the payment should not be treated as a purchase price adjustment for federal income tax purposes. (c) Entitlement to a Gross-Up. An Indemnitor shall increase its payment to an Indemnitee by the amount calculated pursuant to subsection (d) if (i) the Indemnitor is obligated to make a payment to an Indemnitee pursuant to this Article; and (ii) there is an increase to the tax liability of the Indemnitee as a result of (A) an Indemnifiable Loss; or (B) its receipt of a payment pursuant to this Article. (d) The Amount of the Gr oss-Up. The Indemnitor shall increase the payment to the Indemnitee so that (i) the amount of the payment, including any increase, minus (ii) the amount of all taxes payable with respect to its receipt (but taking into account all correlative tax benefits resulting from an Indemnifiable Loss and its payment), equals the amount of the payment that the Indemnitee is otherwise entitled to receive pursuant to this Article. Section X.08. Exclusivity. The rights and remedies set forth in this Article constitute the exclusive rights and remedies of Seller, ParentCo., Buyer and Buyer’s Affiliates with respect to the matters indemnified under Sections X.01 and X.02. Section X.09. Non -Third Party C laims. (a) Indemnitee to Give Notice of Claim. An Indemnitee shall notify each Indemnitor in writing, and with reasonable promptness, of any claim that does not involve a Third Party Claim (a “Claim”). (b) Ramification of Indemni tee’s Failure to Deliver Timely Notice. It is a condition precedent to an Indemnitor’s obligation to indemnify an Indemnitee with respect to a Claim that the Indemnitee perform its obligations under subsections (a) and (c). However, failure to satisfy the condition precedent relieves an Indemnitor of its obligation to indemnify with respect to a Claim only to the extent that the Indemnitor actually has been prejudiced by the Indemnitee’s failure to give notice as required. (c) Contents of Notice. In the notice delivered pursuant to subsection (a), an Indemnitee shall include the following: (i) A description of any claim, event or fact known to the Indemnitee that gives rise or may give rise to a Claim by the Indemnitee against an Indemnitor based on this Agreement, including the nature and basis of the claim, event or fact and the amount to the extent known. (ii) A statement in prominent and conspicuous type as follows: THE INDEMNITEE’S CLAIM IS CONCLUSIVELY DEEMED A LIABILITY OF THE INDEMNITOR IF THE INDEMNITOR DOES NOT DISPUTE ITS LIABILITY BY WRITTEN NOTICE TO THE INDEMNITEE BEFORE THE END OF THE 30- DAY PERIOD FOLLOWING THE INDEMNITOR’S RECEIPT OF THE NOTICE OF THE CLAIM. (d) Indemnitor’s Right to Dispute a Claim. An Indemnitor has the right, by written notice, for a 30-day period, to dispute its liability to an Indemnitee with respect to a Claim. The 30-day period begins the day after the Indemnitor’s receipt of the Indemnitee’s notice pursuant to subsection (a) and ends at 5:00 P.M . on the 30th day. (e) Good Faith Negotiat ion. If an Indemnitor timely disputes its liability to an Indemnitee with respect to a Claim, the Indemnitor and the Indemnitee shall negotiate in good faith to resolve the dispute. (f) Deemed Loss. (i) Circumstances Under Which a Claim Is Deemed a Loss. The Claim set forth in the notice is conclusively deemed a Loss of an Indemnitor if (A) the Indemnitee has provided the Indemnitor notice as required in subsection (c); and (B) the Indemnitor does not dispute its liability pursuant to subsection (d). (ii) Payment of Deemed Loss. If a Claim has been deemed a Loss pursuant to subsection (f)(i), the Indemnitor shall pay the amount of the Loss to the Indemnitee (A) on demand; or (B) on the later date when the amount of the Loss (or a portion of it) becomes finally determined if the Indemnitee estimated the amount of the Loss (or any portion of it) in its notice. (iii) Other Payments. In addition to making the payment under subsection (f)(ii), the Indemnitor shall make any other payments required by this Article, including, without limitation, the payment of the Indemnitee’s Litigation Expenses. Section X.10. Th ird Party Claims. (a) Notice of Third Party Claim. If any third party makes any claim or brings any action, suit or proceeding against an Indemnitee (a “Third Party Claim”) with respect to which an Indemnitor may have liability, the Indemnitee must promptly notify the Indemnitor in writing of the Third Party Claim and deliver to the Indemnitor a copy of the claim, process, and all legal pleadings with respect to the Third Party Claim. Receipt of this notice is a condition precedent to the Indemnitor’s liability with respect to the Third Party Claim. (b) The Indemnitor’s Assu mption of the Defense. If an Indemnitor wishes to assume the defense of a Third Party Claim, it shall do so by sending notice of the assumption to the Indemnitee. The Indemnitor’s assumption of the defense acknowledges its obligation to indemnify. Promptly after sending the notice, the Indemnitor shall choose and employ independent legal counsel of reputable standing. After sending the notice, the Indemnitor is entitled to contest, pay, settle or compromise the Third Party Claim as it determines, subject to the provisions of subsection (e). (c) The Indemnitee’s R ight to Undertake Def ense. Despite the provisions of subsection (b), an Indemnitee is entitled (i) to participate in the defense of a Third Party Claim; and (ii) to defend a Third Party Claim with counsel of its own choosing and without the participation of the Indemnitor if (A) Indemnitor fails or refuses to defend the Third Party Claim on or before the ___ day after the Indemnitee has given written notice to the Indemnitor of the Third Party Claim; or (B) representation of the Indemnitor and the Indemnitee by the same counsel would, in the opinion of that counsel, constitute a conflict of interest. (d) Litigation Expenses. The Indemnitor shall pay the Litigation Expenses incurred by the Indemnitee to and including the date the Indemnitor assumes the defense of the Third Party Claim. Upon the Indemnitor’s assumption of the defense of the Third Party Claim, the Indemnitor’s obligation ceases for any Litigation Expenses the Indemnitee subsequently incurs in connection with the defense of the Third Party Claim. Despite the previous sentence, the Indemnitor is liable for the Indemnitee’s Litigation Expenses, if (i) the Indemnitee has employed counsel in accordance with the provisions of subsection (c)(ii); or (ii) the Indemnitor has authorized in writing the employment of counsel and stated in that authorization the dollar amount of Litigation Expenses for which the Indemnitor is obligated. (e) Compromise and Se ttlement of Third P arty Claims. (i) General Rule. If an Indemnitor assumes the defense of a Third Party Claim, it may not effect any compromise or settlement of the Third Party Claim without the consent of the Indemnitee, and the Indemnitee has no liability with respect to any compromise or settlement of a Third Party Claim effected without its consent. (ii) Exceptions. Despite the provisions of subsection (e)(i), an Indemnitor may effect a compromise or settlement of a Third Party Claim without an Indemnitee’s consent if the following three conditions are met: (A) There is no finding or admission of any violation of law or any violation of the rights of any person and no effect on any other claim that may be made against the Indemnitee. (B) The sole relief provided is monetary damages that are paid in full by the Indemnitors. (C) The compromise or settlement includes, as an unconditional term, the claimant’s or the plaintiff’s release of the Indemnitee, in form and substance satisfactory to the Indemnitee, from all liability in respect of the Third Party Claim. Section X.11. Third Party Beneficiarie s. The Affiliates of Buyer are third party beneficiaries of this Agreement in accordance with its terms. Any modification of this Agreement executed by the signatories is binding upon these Affiliates, and any action taken or consent given by Buyer on its own behalf is binding upon the Affiliates for the purposes of this Agreement. This Agreement is not intended to, nor may it be deemed to, create any rights of enforcement in any person who is neither a signatory to this Agreement nor an Affiliate of Buyer. Section X.12. Joint and Several Liability. All promises of Seller and ParentCo. in this Article are joint and several. Section X.13. Con tribution. (a) Agreement to Contribut e. To provide for just and equitable contribution, each Indemnitor shall contribute to the Indemnifiable Losses on the basis of the relative fault of each Indemnitor as set forth in subsection (b); except that an Indemnitor is in no event required to contribute to all Indemnitees an aggregate amount in excess of the Indemnifiable Losses incurred by all Indemnitees. (b) Determination of Relative Fault. The relative fault of each Indemnitor is to be determined by reference to, among other things, (i) whether the misrepresentations, or alleged misrepresentations, or the breach of, or alleged breach of, any warranties, covenants or other agreements contained in this Agreement relate to information supplied by, or was within the control of, a specific Indemnitor; and (ii) each Indemnitor’s relative intent, knowledge, access to information, and opportunity to correct or prevent the breach. Include the following on the signature page: PARENTCO. By: _____________________________________________Title: