|ARCH COAL INC filed this Form 8-K on 09/19/2017|
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purchase of the Shares by the Company.
7. Termination. This Agreement shall terminate and the terms and conditions set forth herein shall be of no further force or effect (i) upon mutual agreement in writing by the Company and the Sellers or (ii) on September 22, 2017, provided the Closing has not occurred by such date; and provided that termination under this clause (ii) shall not excuse a party from liability for any breaches of this Agreement by such party prior to termination.
8. Covenant Against Transfer. Each Seller covenants that, upon signing this Agreement, it will not take any action to transfer the Shares to a third party or otherwise take any action to subject the Shares to any Lien.
9. Tax Indemnity. The Sellers shall, jointly and severally, indemnify, save and hold the Company harmless from and against (a) any and all Losses incurred that are directly attributable to (i) any breach or inaccuracy of any representation set forth in Section 4(k) hereof or (ii) any U.S. federal withholding taxes imposed with respect to the payment of the Purchase Price and (b) any Losses arising out of or resulting from the receipt of any payment pursuant to this Section 9. The term Losses shall mean any and all Taxes and reasonable expenses (including reasonable fees and expenses of attorneys, auditors, consultants and other agents), in each case to the extent paid by the Company, and the term Taxes shall mean (x) any federal, state or local tax, duty, fee, assessment or other similar governmental charge (including all interest and penalties thereon and additions thereto) and (y) any loss of or utilization of any net operating loss or other tax attribute. As a condition to the obligations in this Section 9, in the event that the Company becomes aware of any event or matter that could result in an indemnification obligation hereunder, the Company shall promptly (and in any event, prior to paying any Losses) notify the Sellers of such event or matter and shall give the Sellers a reasonable amount of time to pay any Losses directly prior to the Company paying any such Losses. For the avoidance of doubt, Section 4(k) hereof and this Section 9 shall survive the Closing Date, and shall survive until 90 days following the expiration of the applicable statute of limitations.
10. Further Assurances. Subject to the terms and conditions of this Agreement, each party will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under applicable laws and regulations to consummate the transactions contemplated by this Agreement.
11. Legal and Equitable Remedies. Each party has the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief without prejudice to any other rights or remedies such party may have at law or in equity for breach of this Agreement.
12. Costs. Each party will pay its own legal and other fees in connection with the negotiation and preparation of this Agreement; provided that if any action is brought to enforce the terms of this Agreement, the prevailing party will be entitled to recover its reasonable and documented attorneys fees, costs and expenses from the other party, in addition to any other relief to which the prevailing party may be entitled.
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