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Common use of Calculation of Losses Clause in Contracts

Calculation of Losses. The Parties acknowledge and agree that in the event any payment is required to be made by a party pursuant to this Article XII or Article IX in respect of any Losses or Taxes: (a) Subject to the provisions of this Article XII, Trimble shall pay any obligations owed to the AGCO Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i). (b) AGCO shall pay any obligations owed to Trimble Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i). (c) For purposes of Article IX and this Article XII, “Losses” shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except to the extent (i) actually awarded to a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damages.

Appears in 4 contracts

Samples: Sale and Contribution Agreement (Trimble Inc.), Sale and Contribution Agreement (Trimble Inc.), Sale and Contribution Agreement (Agco Corp /De)

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Calculation of Losses. The Parties acknowledge and agree that For purposes of determining the amount of any Losses subject to indemnification under this Section 9, the amount of such Losses will be determined net of (a) any amounts taken into account as liabilities or reserves in the event calculation of the Final Working Capital Amount or any payment is required other adjustments to the Purchase Price set forth in Section 2.5, (b) all liabilities or reserves reflected in the Financial Statements, (c) the sum of any amounts recovered or reasonably recoverable under insurance policies, or other amounts recovered or reasonably recoverable from third parties with respect to such Losses (net of any actual out-of-pocket expenses incurred in collecting such amounts) (“Insurance Proceeds”), and (d) any Tax benefit (including a correlative adjustment) reasonably expected to be realized by the Indemnified Party (or any consolidated, combined or unitary group of which the Indemnified Party is also a member, or any direct or indirect partner or member of the Indemnified Party), directly attributable to the incurrence, accrual, or payment of such Losses. In the event that any Insurance Proceeds are received by an Indemnified Party after payment for the related indemnification claim has been made by a party pursuant to this Article XII or Article IX in respect of any Losses or Taxes: (a) Subject Section 9, then the Indemnified Party shall pay to the provisions of this Article XIISeller or the Buyer, Trimble shall pay any obligations owed as the case may be, an amount equal to the AGCO Indemnified Parties as follows: (i) amount of the reduction in Losses that would have been applied pursuant to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes first sentence of this Section 12.3(a)9.4 had such Insurance Proceeds been received at the time such indemnification claim was made. Each Indemnified Party shall use commercially reasonable efforts to seek recovery from third parties who may be responsible, Losses of AGCO consisting of in whole or in part, for Losses suffered indirectly by such Indemnified Party and to make claims under insurance policies (including the R&W Policy) providing coverage with respect to Losses suffered by such Indemnified Party. Notwithstanding anything herein to the contrary, no disputed matter that would result in its capacity as an equityholder a breach of the Company a representation, warranty, covenant or any of its Subsidiaries agreement herein that is subject to indemnification pursuant to this Section 9 shall be deemed raised to be losses suffered by the Company or support any of its Subsidiaries payable adjustment to Purchase Price pursuant to the terms of Section 12.3(a)(i). (b) AGCO shall pay any obligations owed to Trimble Indemnified Parties as follows: (i) to 2.5 in a manner that would circumvent the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of monetary limitations set forth in this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i)9. (c) For purposes of Article IX and this Article XII, “Losses” shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except to the extent (i) actually awarded to a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damages.

Appears in 2 contracts

Samples: Stock Purchase Agreement, Stock Purchase Agreement (IES Holdings, Inc.)

Calculation of Losses. The Parties acknowledge and agree that in the event any payment is required to be made by a party pursuant to this Article XII or Article IX in respect of any Losses or Taxes: (a) Subject to the provisions The amount of any Loss for which indemnification is provided under this Article XII, Trimble IX shall pay any obligations owed to the AGCO Indemnified Parties as follows: be (i) increased to take account of any net Tax cost incurred by the Indemnified Party resulting from the accrual or receipt of indemnity payments hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax benefit actually realized by the Indemnified Party arising from the incurrence or payment of any such Loss. Any indemnity payment under this Agreement shall be treated as additional proceeds in exchange for the Indemnified Party’s transfer or issuance, as applicable, of shares for Tax purposes, unless a final determination by a Governmental Entity with respect to the extent the indemnifiable Loss is suffered by the Company Indemnified Party or any of its Subsidiaries, Trimble shall pay 85% of Affiliates causes any such Loss to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed payment not to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i)treated as such for Tax purposes. (b) AGCO The amount of any Loss for which indemnification is provided under this Article IX shall pay any obligations owed to Trimble Indemnified Parties as follows: be net of (i) to the extent the indemnifiable Loss is suffered by the Company any insurance proceeds or any other cash receipts or sources of its Subsidiaries, AGCO shall pay 15% reimbursement in respect of such Loss to Trimble or, at Xxxxxxx’x election, 100% (after deducting therefrom the amount of the Loss to the Company; and expenses incurred by it in procuring such proceeds or reimbursement) and (ii) to any amounts actually recovered by the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i)any indemnification by or indemnification agreement with any third party. (c) For purposes Notwithstanding anything to the contrary contained herein, no Party shall be liable to or otherwise responsible to any other Party or any Affiliate of any other Party under this Article IX and this Article XII, “Losses” shall not include any for consequential, special, exemplary, incidental, indirect or punitive damagesdamages or for diminution in value (but except as provided by the second parenthetical in Section 9.1(a)) or lost profits that arise out of or relate to this Agreement or the performance or breach hereof. (d) The FEMSA Parties and the Heineken Parties shall use commercially reasonable efforts to mitigate any Losses for which they (or, as applicable, FEMSA Parties indemnitees or Heineken Parties indemnitees) may seek indemnification hereunder. In respect of any Loss for which an Indemnified Party is entitled to indemnification by a third party pursuant to a written indemnification agreement, such Indemnified Party shall, at the request and expense of the Indemnifying Party, take actions reasonably necessary to enforce rights under such indemnification agreement, including, actual or potential lost profitsif the recovery from the indemnitor would exceed $5,000,000, diminution in value or multiple the commencement and prosecution of earnings, in each case, except to the extent (i) actually awarded to a third party (including as part of a settlement) Proceedings in connection therewith, provided that a material failure to take such actions that adversely affects the FEMSA Parties shall bar the Heineken Parties from exercising their rights under this Article IX with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damagesrespect to such Loss.

Appears in 2 contracts

Samples: Share Exchange Agreement, Share Exchange Agreement (Mexican Economic Development Inc)

Calculation of Losses. The Parties acknowledge and agree that in In calculating amounts payable to any Stockholder Indemnitee or Parent Indemnitee (each such person, an “Indemnified Party”) for a claim for indemnification hereunder, the event any payment is required to be made by a party pursuant to this Article XII or Article IX in respect amount of any indemnified Losses or Taxes: (a) Subject to the provisions shall be determined without duplication of this Article XII, Trimble any other Loss for which an indemnification claim has been made and shall pay any obligations owed to the AGCO Indemnified Parties as follows: be computed net of (i) to the extent the indemnifiable Loss is suffered payments actually recovered by the Company or any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% on behalf of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party under any insurance policy (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss R&W Policy) with respect to such AGCO Indemnified Party; it being understoodLosses (provided, thathowever, for purposes that (A) the amount of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries such payments shall be deemed adjusted to be losses suffered account for the cost incurred by an Indemnified Party for increased insurance premiums (other than in connection with the Company R&W Policy) and (B) nothing contained herein or otherwise shall create any obligation on the part of its Subsidiaries payable pursuant any Indemnified Party to Section 12.3(a)(i). (b) AGCO shall pay pursue any obligations owed insurance recovery with respect to Trimble Indemnified Parties as follows: (i) to any Losses other than under the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the CompanyR&W Policy; and (ii) to any prior or subsequent actual recovery by the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party from any Person with respect to such Losses (provided, however, that nothing contained herein or otherwise shall create any obligation on the part of any Indemnified Party to pursue any such recovery with respect to any Losses other than under the Company or R&W Policy); and (iii) the amount of any of its Subsidiaries)net Tax benefit, then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries which shall be deemed measured by actual cash Tax savings, that is attributable to be losses suffered by the Company any deduction or any of its Subsidiaries payable pursuant to Section 12.3(b)(i). (c) For purposes of Article IX and this Article XII, “Losses” shall not include any consequential, special, exemplary, incidental, indirect loss resulting from or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except to the extent (i) actually awarded to a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence arising out of the relevant breach Loss and that is actually realized by the Indemnified Party during or action and were not caused prior to the taxable year in which the Indemnified Party receives the relevant indemnification payment. In addition, each Indemnified Party shall make commercially reasonably efforts to mitigate any Losses that an Indemnified Party asserts under this Article X within a reasonable period of time following the discovery by special circumstances such Indemnified Party of the fact, event or circumstances giving rise to such Losses (and, for an indemnified Person that is not a natural person, the bringing to the attention of a responsible officer thereof of such fact, event or circumstance). In the event that an Indemnified PartiesParty shall fail to make such commercially reasonable efforts to mitigate any such Losses, excluding punitive damagesthen notwithstanding anything else to the contrary contained herein, the indemnifying Party shall not be required to indemnify any Indemnified Party for such portion of any Loss that could reasonably have been avoided if the Indemnified Party had made such efforts.

Appears in 2 contracts

Samples: Merger Agreement, Merger Agreement (C&J Energy Services, Inc.)

Calculation of Losses. The Parties acknowledge (a) Any indemnity payment made by an Indemnifying Party to an Indemnified Party pursuant to Sections 10.1 or 10.2 shall be made net of (x) any amounts actually recovered by the Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible for the matters underlying such indemnity payment less (y) any related costs and agree expenses, including the aggregate cost of pursuing any related insurance claims plus any related increases in insurance premiums or other chargebacks; provided, however, that notwithstanding anything in Section 10.3(c) to the contrary no party shall have any obligation to seek to recover any insurance proceeds or to initiate a lawsuit against any other Person in connection with making a claim under this Article X. If the Indemnified Party receives any amounts under applicable insurance policies or from any other Person alleged to be responsible for the matters underlying such indemnity payment subsequent to an indemnification payment by the Indemnifying Party, then the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by the Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party. (b) Each Indemnified Party shall use commercially reasonable efforts to mitigate any Loss that the Indemnified Party asserts or is reasonably likely to assert under this Article X upon a responsible officer of any Indemnified Party becoming aware of any event that would reasonably be expected to give rise to such assertion. In the event that the Indemnified Party shall fail to make, or cause to be made, any such commercially reasonable efforts to mitigate any such claim or liability, then notwithstanding anything to the contrary contained in this Agreement, the Indemnifying Party shall not be required to indemnify any Indemnified Party for that portion of any Losses that would reasonably be expected, individually or in the event aggregate, to have been avoided if the Indemnified Party had made such efforts. (c) Each Indemnified Party shall, use all commercially reasonable efforts to collect any and all amounts available under insurance coverage or from any other Person alleged to be responsible for any Losses payable under Section 10.1, and shall take such actions in such respect as the Indemnifying Party may reasonably request. If the Indemnified Party receives any payment is required to be made by a party pursuant to this Article XII or Article IX from the Indemnifying Party in respect of any Losses pursuant to Section 10.1 or Taxes:10.2 and the Indemnified Party could have recovered all or part of such Losses from a third party based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall assign such of its rights to proceed against such third party as are necessary to permit the Indemnifying Party to recover from such third party the amount of such payment. (ad) Subject No Indemnifying Party shall be liable pursuant to Sections 10.1 and 10.2 in respect of any Loss if such Loss would not have arisen but for, or to the provisions of this Article XIIextent any Loss is increased as a result of, Trimble shall pay any obligations owed to the AGCO Indemnified Parties as follows: (i) the passing of, or a change in, a Law or a change to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% written interpretation of the Loss to Law or administrative practice of any Governmental Authority occurring on or after the Company; and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i). (b) AGCO shall pay any obligations owed to Trimble Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i). (c) For purposes of Article IX and this Article XII, “Losses” shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except to the extent (i) actually awarded to a third party (including as part of a settlement) in connection with a Third Party Claim Closing or (ii) recoverable the change by statute or by any regulatory or other official auditing standards body of any accounting policy applicable to the applicable Indemnified Party. (e) No Indemnifying Party shall be liable to any Indemnified Party in respect of any Loss under applicable principles this Article X to the extent such Loss is attributable to, or to the extent any Loss is increased as a result of, any (i) act, omission, transaction, or arrangement carried out at the written request of Delaware contract law because they were or with the naturalwritten approval of such Indemnified Party, probable and reasonably foreseeable consequence (ii) act, transaction or arrangement carried out by or on behalf of the relevant such Indemnified Party if such act, transaction or arrangement was not commercially reasonable independent of such Indemnified Party’s rights to indemnification under this Agreement, or (iii) breach by such Indemnified Party of any of its obligations under this Agreement or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damagesany obligations entered into pursuant hereto.

Appears in 2 contracts

Samples: Master Distribution Agreement (Ml Life Insurance Co of New York), Master Distribution Agreement (Ml Life Insurance Co of New York)

Calculation of Losses. The Parties acknowledge (a) Notwithstanding anything to the contrary in this Agreement, the amount of any Losses suffered or incurred by any Indemnified Person shall be calculated after giving effect to (i) any insurance proceeds actually received by the Indemnified Person with respect to such Losses from third party insurers, net of (A) all out-of-pocket costs and agree that expenses relating to collection of such amounts from such insurers, (B) any deductible associated therewith, and (C) any increase in premiums resulting therefrom; and (ii) the event amount of any indemnification, contribution, and other similar payment is required to be made proceeds actually recovered by a party pursuant to this Article XII or Article IX such Indemnified Person in respect of such Loss, net of any Losses or Taxes: (a) Subject costs associated with obtaining such proceeds. The Indemnified Person agrees to the provisions use commercially reasonable efforts to seek recovery of this Article XIIinsurance proceeds, Trimble shall pay with respect to Purchaser Indemnified Parties, with respect to any obligations owed to the AGCO Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i)Losses. (b) AGCO shall pay The Indemnified Persons will not be entitled to recover any obligations owed Losses relating to Trimble Indemnified Parties as follows: (i) any matter arising under a provision of this Agreement to the extent that the indemnifiable Loss is suffered by the Company Indemnified Persons have already recovered Losses with respect to such matter pursuant to another provision of this Agreement, or any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and (ii) any Losses as and to the extent reflected in the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than determination of the Company Final Consideration or otherwise as and to the extent taken into account in the calculation of the Final Consideration or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i)adjustment thereto. (c) For purposes of Article IX and Notwithstanding anything to the contrary elsewhere in this Article XIIAgreement, “Losses” shall not include no Party shall, in any consequentialevent, special, exemplary, be liable to any other Person for any (i) punitive damages or (ii) incidental, indirect or punitive damagesspecial damages of such other Person, including, actual or potential any damages based on any kind of multiple (including “multiple of lost profits, diminution in value or multiple of earningscash flow” or any similar valuation methodology), or claims for lost profits or diminution of value, in each casecase of any kind or nature, except regardless of the form of action through which any of the foregoing are sought, other than to the extent (i) actually awarded such Losses or damages are required to be paid to a third party (including as part of a settlement) in connection with pursuant to a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damageshereunder.

Appears in 2 contracts

Samples: Merger Agreement (Proficient Auto Logistics, Inc), Stock Purchase Agreement (Proficient Auto Logistics, Inc)

Calculation of Losses. The Parties acknowledge and agree that in the event any payment is required to be made by a party pursuant to this Article XII or Article IX in respect of any Losses or Taxes: (a) Subject to the provisions The amount of any Loss for which indemnification is provided in clause (i), (ii), (iii), (iv) or (v)(A) of Section 13.01(a) of this Article XIIAgreement or clause (i), Trimble (ii), (iii), (iv) or (v)(A) of Section 13.02(a) of this Agreement shall pay be net of any obligations owed amounts actually recovered by the indemnified party under the True Insurance Policies (as such term is defined in the ATCA) with respect to such Loss; provided, however, that the AGCO Indemnified Parties as follows: indemnified party shall not have any obligation to seek any such recovery under any True Insurance Policy. The amount of any Loss for which indemnification is provided pursuant to Section 13.01(a) or Section 13.02(a) of this Agreement shall be (i) increased to the extent the indemnifiable Loss is suffered take account of any net Tax cost incurred by the Company indemnified party arising from the receipt or any accrual of its Subsidiaries, Trimble shall pay 85% of indemnity payments hereunder (grossed up for such Loss to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and increase) and (ii) reduced to take account of any net Tax Benefit (as defined in the extent ATCA) realized by the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than indemnified party arising from the Company deductibility of any such Loss. In computing the amount of any such Tax cost or any of its Subsidiaries)Tax Benefit, then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries indemnified party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder or the deductibility of any indemnified Loss. Any indemnification payment hereunder shall initially be losses suffered made without regard to clauses (i) and (ii) in the second sentence of this Section 13.03, and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax Benefit only after the indemnified party has actually realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have "actually realized" a net Tax cost or a net Tax Benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the Company case may be, the amount of Taxes, that such indemnified party would be required to pay but for the receipt or accrual of the indemnity payment or the deductibility of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of its Subsidiaries payable pursuant Form 870 AD or successor form) with respect to Section 12.3(a)(i)the indemnified party's liability for Taxes, and payments between the indemnified party and the indemnifying party to reflect such adjustment shall be made if necessary. (b) AGCO shall pay any obligations owed to Trimble Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries No indemnified party shall be deemed entitled to be losses suffered by the Company or any of its Subsidiaries payable indemnification pursuant to Section 12.3(b)(i). (c13.01(a) For purposes with respect to any Loss that has been taken account of Article IX and this Article XII, “Losses” shall not include in any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except adjustment pursuant to the extent (i) actually awarded to a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damages.Section 1.05

Appears in 2 contracts

Samples: Master Agreement (Ashland Inc), Master Agreement (Ashland Inc)

Calculation of Losses. The Parties acknowledge and agree that For purposes of determining the amount of any Losses subject to indemnification under this Article 9, the amount of such Losses will be determined net of (a) any amounts taken into account as liabilities or reserves in the calculation of the Final Working Capital Amount, (b) all related liabilities or reserves reflected in the Financial Statements, (c) the sum of any amounts recovered under insurance policies or other amounts recovered from third parties with respect to such Losses (net of any actual out-of-pocket expenses incurred in collecting such amounts) (“Insurance or Other Proceeds”), and (d) the net Tax benefit actually realized in the year in which the Loss was incurred or the subsequent two years by the Indemnified Party (or any consolidated, combined or unitary group of which the Indemnified Party is also a member), attributable to (i) the incurrence or payment of such Losses or (ii) a correlative adjustment that makes allowable to the Indemnified Party or its consolidated, combined or unitary group any deduction, amortization, exclusion from income or other allowance. In the event that any Insurance or Other Proceeds are received by an Indemnified Party after payment is required to be for the related indemnification claim has been made by a party pursuant to this Article XII 9, then the Indemnified Party shall pay to the Seller or Article IX the Buyer, as the case may be, an amount equal to the amount of the reduction in Losses that would have been applied pursuant to the first sentence of this Section 9.4 had such Insurance or Other Proceeds been received at the time such indemnification claim was made. Each Indemnified Party shall use commercially reasonable efforts to seek recovery from third parties who may be responsible, in whole or in part, for Losses suffered by such Indemnified Party and to make claims under insurance policies providing coverage with respect to Losses suffered by such Indemnified Party; provided, however, that no Indemnified Party shall be required file suit to pursue such Insurance or Other Proceeds. Notwithstanding any other provision of this Agreement, the Seller shall not be obligated to indemnify or hold harmless any Buyer Indemnified Parties from or against any Losses resulting from or Taxes: relating to any Taxes that (a) Subject are attributable to any transaction occurring after the Closing that is not in the ordinary course of business of the Acquired Companies as carried on prior to the provisions of this Article XIIClosing Date, Trimble shall pay any obligations owed to the AGCO Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i). (b) AGCO shall pay arise as a result of any obligations owed change in Tax rates after the Closing Date that would have retroactive effect on Taxes imposed with respect -60- to Trimble Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company a Pre-Closing Tax Period or any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i). (c) For arise as a result of a change after the Closing Date in any accounting policy, any tax reporting practice or the length of any accounting period for Tax purposes of Article IX and this Article XII, “Losses” shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except to the extent (i) actually awarded to a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damagesAcquired Companies.

Appears in 2 contracts

Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Solera Holdings, Inc)

Calculation of Losses. The Parties acknowledge and agree that in the event any payment is required to be made by a party pursuant to this Article XII or Article IX in respect of any Losses or Taxes: (a) Subject All Purchaser Losses or Seller Losses that any Purchaser Indemnified Party or Seller Indemnified Party, as the case may be, is entitled to the provisions of indemnification under this Article XII, Trimble VIII shall pay any obligations owed to the AGCO Indemnified Parties as follows: be calculated after giving effect to: (i) any proceeds actually received from insurance policies covering the damage, loss, liability or expense that is the subject to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiariesclaim for indemnity, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and (ii) any proceeds actually received from third parties, including through indemnification, counterclaim, reimbursement arrangement, contract or otherwise in compensation for the subject matter of an indemnification claim by such Indemnitee (such arrangements referenced in clauses (i) and (ii), collectively, “Alternative Arrangements”) and (iii) the Tax Benefit to the extent Indemnitee resulting from, or as a consequence of, the indemnifiable Loss damage, loss, liability or expense that is suffered by an AGCO Indemnified Party the subject of the indemnity, in the case of clauses (other than the Company or any of its Subsidiariesi), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes of this Section 12.3(a(ii) and (iii), Losses net of AGCO consisting any reasonable out-of-pocket expenses incurred by such Indemnitee in collecting such amount. In computing the amount of Losses suffered indirectly any such Tax Benefit referred to in its capacity as an equityholder of the Company or any of its Subsidiaries foregoing sentence, the Indemnitee shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any Purchaser Losses or Seller Losses, as the case may be. Without limiting clause (iii), the taking of a Tax deduction in connection with any such damage, loss, liability or expense that is subject to a claim for indemnification shall be losses suffered by at the Company or any discretion of its Subsidiaries payable pursuant to Section 12.3(a)(i)the Indemnitee. (b) AGCO Following the Closing, each Purchaser Indemnified Party and each Seller Indemnified Party shall pay utilize their commercially reasonable best efforts, consistent with normal practices and policies and good commercial practice, to mitigate any obligations owed amounts payable under Section 8.02, including pursuing all reasonable remedies to Trimble Indemnified Parties collect any proceeds pursuant to Alternative Arrangements covering the Purchaser Loss or Seller Loss, as follows: (i) applicable, that is the subject to the extent claim for indemnity (provided that the indemnifiable Loss is suffered Indemnitee shall not be required to institute a lawsuit in respect of any Alternative Arrangement). If any such proceeds, benefits or recoveries are actually received by any Indemnitee with respect to any Purchaser Losses or Seller Losses, as the case may be, after any Indemnitee has actually received proceeds in respect of such indemnification claim, such Indemnitee shall promptly, but in any event no later than ten (10) Business Days after the receipt, realization or recovery of such proceeds, benefits or recoveries, pay to the Indemnifying Party the amount of such proceeds, benefits or recoveries actually received (such amount not to exceed, in any event, the amount previously paid in respect thereof by the Company or any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Indemnifying Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i). (c) For purposes of Article IX and No Indemnitee will be entitled to indemnification pursuant to this Article XII, “Losses” shall not include VIII with respect to (x) any consequentialindirect, special, exemplary, incidental, indirect consequential or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except to the extent (i) actually that any such indirect, special, incidental, consequential or punitive damages are awarded to a third party (including as part of a settlement) in connection with a Third Party Claim parties, or (iiy) recoverable under applicable principles of Delaware contract law because they were any claim or liability to the natural, probable and reasonably foreseeable consequence extent taken into account in the calculation of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damagesfinal Net Working Capital Adjustment Amount pursuant to Section 2.03(c).

Appears in 1 contract

Samples: Stock Purchase Agreement (Brand Energy & Infrastructure Services, Inc)

Calculation of Losses. The Parties acknowledge and agree that in Notwithstanding anything to the event any payment is required to be made by a party pursuant to this Article XII or Article IX in respect contrary contained herein, for purposes of determining the amount of any Losses that are the subject matter of a claim for indemnification hereunder, the Basket shall be the aggregate materiality standards for all purposes hereunder and, therefore, each representation, warranty and other provision contained in this Agreement or Taxesin any Exhibit, Schedule or certificate delivered hereunder shall be read without regard and without giving effect to any materiality or Material Adverse Effect standard or qualification contained in such representation or warranty (as if such standard or qualification were deleted from such representation and warranty) (other than in Section 3.7, but not disregarding any reference to “materiality” contained in such representation or warranty). In addition, for purposes of calculating Losses hereunder: (a) Subject the amount of any Losses hereunder will be reduced by the amount of any accrual or reserve (in the ordinary course of business and consistent with past practice and GAAP (taking into account, without limitation, applicable rules regarding the proper timing for inclusion of items)) reflected on the financial statements of the Transferred Companies as of the Closing Date; (b) no party shall be entitled to recover Losses in respect of any claim or otherwise obtain reimbursement or restitution more than once with respect to any claim hereunder - without limiting the foregoing, notwithstanding anything to the provisions of contrary in this Article XIIAgreement, Trimble Buyer shall pay not be entitled to indemnification with respect to any obligations owed to the AGCO Indemnified Parties Losses as follows: (i) a result of, or based upon or arising from, any claim or liability to the extent such claim or liability is taken into account in determining the indemnifiable Loss is suffered amount of any adjustment to the Purchase Price in accordance with Section 2.2; (c) if Indemnitor makes any indemnification payment pursuant to this ARTICLE 9 or otherwise by reason of the Company or transactions contemplated hereby under any theory of its Subsidiariesrecovery, Trimble Indemnitor shall pay 85% be subrogated, to the extent of such Loss payment and to AGCO orthe extent permitted by law, at AGCO’s election, 100% to any rights and remedies of the Loss Indemnitee to recoup amounts paid from third parties with respect to the Companymatters giving rise to indemnification hereunder; (d) the amount of any and all Losses under this ARTICLE 9 shall be determined net of any amounts recovered by Indemnitee under the insurance policies, indemnities or other reimbursement arrangements of the Transferred Companies with respect to such Losses (calculated net of any deductibles, co-payments, increase in insurance premiums or other payment obligations (including attorneys’ fees and other costs of collection) resulting from the related claims under applicable insurance policies); and (iie) The amount of any Loss claimed by an Indemnitee hereunder shall be reduced to the extent of any Tax savings or benefits realized by the indemnifiable Loss Indemnitee that is suffered by an AGCO Indemnified Party (attributable to any deduction, loss, credit or other than the Company Tax benefit resulting from or any arising out of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries Loss. The Indemnitee shall be deemed to be losses suffered realize, with respect to any taxable year, a Tax benefit (“Tax Benefit”) attributable to a Loss if, and to the extent that, the Indemnitee’s cumulative liability for Taxes through the end of such taxable year, calculated by excluding any Tax items attributable to the Company or Loss from all taxable years, exceeds the Indemnitee’s cumulative liability for Taxes through the end of such taxable year, calculated by taking into account any of its Subsidiaries payable pursuant Tax items attributable to Section 12.3(a)(i)the Loss for all taxable years. (bf) AGCO shall pay In no event will any obligations owed party be entitled to Trimble Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company recover or make a claim for any amounts in respect of its Subsidiariesconsequential, AGCO shall pay 15% incidental or indirect damages, lost profits or punitive damages and, in particular, no “multiple of such Loss to Trimble or, at Xxxxxxx’x election, 100% profits” or “multiple of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company cash flow” or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries similar valuation methodology shall be deemed to be losses suffered by used in calculating the Company or amount of any of its Subsidiaries payable pursuant to Section 12.3(b)(i)Losses. (c) For purposes of Article IX and this Article XII, “Losses” shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except to the extent (i) actually awarded to a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damages.

Appears in 1 contract

Samples: Stock Purchase Agreement (IHS Inc.)

Calculation of Losses. (a) The Parties acknowledge and agree that in amount of any Losses payable under this Article 10 by the event Indemnifying Party shall be net of any payment is required to be made (i)amounts recovered by a party the Indemnified Party under applicable insurance policies, or from any other Person other than the Indemnifying Party (pursuant to this Article XII 10) alleged to be responsible therefor, and (ii)Tax benefit realized by the Indemnified Party arising from the incurrence or Article IX in respect payment of any Losses such Losses. If the Indemnified Party receives any amounts under applicable insurance policies, or Taxes: from any other Person other than the Indemnifying Party (apursuant to this Article 10) Subject alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification payment up to the provisions of this Article XII, Trimble shall pay any obligations owed to the AGCO Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered amount received by the Company or any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company net of any costs or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company expenses incurred or any of its Subsidiaries shall be deemed to be losses suffered incurred by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(iIndemnified Party in obtaining such amount). (b) AGCO shall pay any obligations owed to Trimble Indemnified Parties as follows: (i) Notwithstanding anything to the extent contrary herein, the indemnifiable Loss is suffered by the Company Indemnifying Party shall not be liable under this Agreement for any (i)consequential, indirect, incidental, special, exemplary or any of its Subsidiariespunitive Losses, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% (ii)Losses for lost profits or opportunities or (iii)Losses specifically reserved on one of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i)Balance Sheets. (c) For purposes of Article IX and Each Indemnified Party must use its commercially reasonable efforts to mitigate any Losses for which such Indemnified Party seeks indemnification under this Agreement. (d) Each Indemnified Party shall use its commercially reasonable efforts to collect any amounts available under insurance coverage, or from any other Person other than the Indemnifying Party potentially responsible, for any Losses payable under this Article XII, “Losses” shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except to the extent (i) actually awarded to a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damages10.

Appears in 1 contract

Samples: Subscription Agreement (Oriental Financial Group Inc)

Calculation of Losses. The Parties acknowledge amount of the Loss of an Indemnified Party as to which indemnification exists under this Agreement shall be calculated by taking into account (a) the present value, based on a discount rate equal to the mid-term applicable federal rate as determined under Section 1274(d) of the Code at the time, of any Tax benefit actually realized by such Indemnified Party (as defined below) in connection with or as a result of the occurrence of such Loss to the extent the present value of such Tax benefit exceeds the present value of any Tax to be paid by such Indemnified Party in connection with the indemnification proceeds, (b) any insurance proceeds actually received by such Indemnified Party (and agree not applied by such Indemnified Party on an equitable basis against any portion of a Loss that is not indemnified hereunder) and increased insurance costs incurred in connection with or as a direct result of the event occurrence of such Loss, (c) any indemnification proceeds received by Details Holdings or such Indemnified Party (including proceeds from the indemnification provisions described in Section 4.9 and the indemnification provisions set forth in (i) the Amended and Restated Recapitalization Agreement dated as of October 4, 1997 by and among DI Acquisition Corp., Details Holdings and the stockholders listed on Schedule 1 thereto and (ii) the Cuplex Agreement) and (d) if such Loss results from the diminution in value of such Indemnified Party's equity interest in Details Holdings, such Loss shall be calculated based on such Indemnified Party's fully diluted equity interest in Details Holdings at the later of the business day after the Closing Date or the date such Loss is incurred. If the amount to be netted pursuant to this Section 6.3 against any payment is by an Indemnifying Party of any amount otherwise required to be made by a party paid pursuant to this Article XII or Article IX in respect of any Losses or Taxes: (a) Subject VI shall be undetermined, the Indemnified Party shall repay to the provisions Indemnifying Party, promptly after such determination, any amount that Indemnifying Party would not have had to pay (or, in the case of a payment by Details Holdings pursuant to section 6.5(a), surrender to Details Holdings for cancellation shares of Class L Stock Details Holdings would not have had to issue) pursuant to this Article XII, Trimble shall pay any obligations owed to VI had such determination been made at the AGCO Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, Trimble shall pay 85% time of such Loss to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and payment (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(iissuance). (b) AGCO shall pay any obligations owed to Trimble Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i). (c) For purposes of Article IX and this Article XII, “Losses” shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except to the extent (i) actually awarded to a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damages.

Appears in 1 contract

Samples: Merger Agreement (Details Capital Corp)

Calculation of Losses. The Parties acknowledge Notwithstanding anything to the contrary contained herein, for purposes of determining the amount of any Losses that are the subject matter of a claim for indemnification hereunder, the Basket shall be the aggregate materiality standards for all purposes hereunder and, therefore, each representation, warranty and agree that other provision contained in this Agreement or in any Exhibit, Schedule or certificate delivered hereunder shall be read without regard and without giving effect to any materiality or Material Adverse Effect standard or qualification contained in such representation or warranty (as if such standard or qualification were deleted from such representation and warranty) (other than in Section 3.7, but not disregarding any reference to “materiality” contained in such representation or warranty). In addition, for purposes of calculating Losses hereunder: (a) the amount of any Losses hereunder will be reduced by the amount of any accrual or reserve (in the event any payment is required ordinary course of business and consistent with past practice and GAAP (taking into account, without limitation, applicable rules regarding the proper timing for inclusion of items)) reflected on the financial statements of the Transferred Companies as of the Closing Date; (b) no party shall be entitled to be made by a party pursuant to this Article XII or Article IX recover Losses in respect of any Losses claim or Taxes: (a) Subject otherwise obtain reimbursement or restitution more than once with respect to any claim hereunder - without limiting the foregoing, notwithstanding anything to the provisions of contrary in this Article XIIAgreement, Trimble Buyer shall pay not be entitled to indemnification with respect to any obligations owed to the AGCO Indemnified Parties Losses as follows: (i) a result of, or based upon or arising from, any claim or liability to the extent such claim or liability is taken into account in determining the indemnifiable Loss is suffered amount of any adjustment to the Purchase Price in accordance with Section 2.2; (c) if Indemnitor makes any indemnification payment pursuant to this ARTICLE 9 or otherwise by the Company or any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% reason of the Loss to the Company; and (ii) transactions contemplated hereby under any theory of recovery, Indemnitor shall be subrogated, to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i). (b) AGCO shall pay any obligations owed to Trimble Indemnified Parties as follows: (i) payment and to the extent the indemnifiable Loss is suffered permitted by the Company or law, to any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% rights and remedies of the Loss Indemnitee to recoup amounts paid from third parties with respect to the Companymatters giving rise to indemnification hereunder; (d) the amount of any and all Losses under this ARTICLE 9 shall be determined net of any amounts recovered by Indemnitee under the insurance policies, indemnities or other reimbursement arrangements of the Transferred Companies with respect to such Losses (calculated net of any deductibles, co-payments, increase in insurance premiums or other payment obligations (including attorneys’ fees and other costs of collection) resulting from the related claims under applicable insurance policies); and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i). (c) For purposes of Article IX and this Article XII, “Losses” shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except to the extent (i) actually awarded to a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damages.

Appears in 1 contract

Samples: Stock Purchase Agreement

Calculation of Losses. The Parties acknowledge and agree For the purposes of calculating Losses to which an Indemnified Party is entitled under this Section 9, such Losses (i) shall not include (x) any punitive, special or exemplary damages or (y) any consequential, incidental, indirect, or multiple damages or any lost profits, opportunity costs or similar items; provided, however, (A) that in the event case of clauses (x) and (y) the Indemnified Party shall not be precluded from claiming as Losses any payment is required such damage or loss paid by the Indemnified Party to a third party, (B) that in case of clause (y) the Indemnified Party shall not be made by a party pursuant to this Article XII precluded from claiming as Losses any such damage or Article IX in respect of any Losses or Taxes: loss (a) Subject to the provisions of this Article XII, Trimble shall pay any obligations owed to the AGCO Indemnified Parties as follows: (iexcluding multiple damages) to the extent the indemnifiable Loss is suffered reasonably foreseeable by the Company or any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% parties as of the Loss date hereof as a direct or indirect and probable result of the breach or the event otherwise giving rise to the Company; and right of indemnification and (iiC) that in the case of clause (y) that the Indemnified Party shall not be precluded from claiming Losses for multiple damages to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party can prove that the Losses pertain to underlying damages indemnifiable hereunder and pertain to items representing impairments that will continue for the foreseeable future or result in impairments of future cash flows that would reasonably be expected to continue for the foreseeable future (other than the Company including because of an increase in future expenses or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, a decrease in future revenue that, for purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i). (b) AGCO shall pay any obligations owed to Trimble Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i). (c) For purposes of Article IX and this Article XII, “Losses” shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except would reasonably be expected to be continue for the foreseeable future); (ii) shall be determined without duplication of amount recovered by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) shall be reduced by the amount of any proceeds that any Indemnified Party receives pursuant to the terms of any insurance policies; provided, however, such Indemnified Party shall promptly reimburse the Indemnifying Party for any subsequent recoveries from such sources if previously indemnified hereunder so as to avoid a double recovery; (v) shall be reduced by the amount of any prior or subsequent recovery by an Indemnified Party from any other Person (other than a Seller) with respect to such Losses; (vi) shall not include Losses to the extent reserved for or reflected on the Final Closing Date Net Working Capital (ias finally determined pursuant to Section 2.2 above); and (vii) shall be determined net of any Tax deduction or Tax credit benefits actually awarded realized by the Indemnified Party as a result of any Losses in any tax year in which or prior to a which such Losses were incurred or, if later, any tax year in which an indemnification payment is made. An Indemnified Party shall diligently pursue recovery for Losses under any available insurance coverage and shall use commercially reasonable efforts (taking into account the existence of any customer relationships and the merits of the claim) to pursue payment from any third party (including as part of a settlement) in connection with a Third under any agreement, contract, arrangement or commitment pursuant to which the Company, the Subsidiary or an Indemnified Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the is entitled to indemnification for any Loss for which an Indemnified Parties, excluding punitive damagesParty seeks indemnification pursuant to this Section 9.

Appears in 1 contract

Samples: Membership Interests Purchase Agreement (Cipher Pharmaceuticals Inc)

Calculation of Losses. The Parties acknowledge and agree that Notwithstanding anything to the contrary in the event any payment is required to be made by a party pursuant to this Article XII or Article IX in respect of any Losses or TaxesAgreement: (a) Subject No Buyer Indemnitee shall be entitled to the provisions of indemnification under Article VI or this Article XII, Trimble shall pay any obligations owed to the AGCO Indemnified Parties as follows: (i) IX to the extent the indemnifiable Loss is suffered by the Company a Liability or any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% of the Loss reserve relating to the Company; and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss matter giving rise to such AGCO Indemnified Party; it being understood, that, for purposes Losses has been included in the calculation of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i)Final Closing Net Working Capital. (b) AGCO shall pay The amount of any obligations owed to Trimble Loss for which an Indemnified Parties as follows: Party claims indemnification under this Agreement (i) shall be reduced (but not below zero) by the amount, if any, of the net reduction in Taxes actually paid by Buyer or its Affiliates with respect to such Loss, (ii) shall be reduced by the amount of any payment actually received by such Indemnified Party with respect to such Loss from a third-party insurer or other third party (net of costs or expenses of recovery and applicable premiums and self-insured retentions); provided that receipt of such proceeds, benefits or recoveries shall not be a predicate to indemnification for such Loss or require the Indemnified Party to use anything other than commercially reasonable efforts to collect any amounts available under such insurance coverage, and (iii) shall not include any special, punitive or exemplary damages, except to the extent the indemnifiable Indemnified Party has become liable to a third party for such Losses due to a Third-Party Claim. In addition, if, at any time following the payment of an indemnification obligation to an Indemnified Party with respect to a Loss is suffered under this Agreement, the Indemnified Party actually realizes any net reduction in Taxes or receives any payment by the Company an insurance carrier or any of its Subsidiaries, AGCO shall pay 15% of other third party with respect to such Loss not previously effected as a reduction payment to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and clauses (i) or (ii) of this Section 9.07(b), then the value of any such amount recovered by the Indemnified Party up to the amount of such indemnification payment hereunder, but net of any costs or expenses of recovery, shall promptly be repaid by such Indemnified Party to the Indemnifying Party; provided, however, that the Basket shall not be deemed exceeded if such recovery by the Indemnified Party causes the aggregate amount of Losses subject to the Basket to fall below the amount of the Basket; provided, further, that such Indemnified Party shall not make such repayment to the extent the indemnifiable Loss is suffered by a Trimble applicable Cap has been exceeded. An Indemnified Party (shall use commercially reasonable efforts to pursue all legal rights and remedies available in order to mitigate Losses for which indemnification is provided to it under this Agreement. Without limiting the foregoing, each Indemnified Party shall use commercially reasonable efforts to pursue, and to cause its Affiliates to pursue, all reductions in Taxes and insurance or other than third-party recoveries to which it may be entitled in connection with any Loss it incurs, and the Company or Parties shall cooperate with each other in pursuing insurance and other third-party claims with respect to any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i)Losses. (c) For purposes In the event an Indemnified Party shall recover Losses in respect of a claim of indemnification under Article IX and VI or this Article XIIIX, “Losses” no other Indemnified Party shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution be entitled to recover the same Losses in value or multiple of earnings, in each case, except to the extent (i) actually awarded to a third party (including as part respect of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damagesclaim for indemnification.

Appears in 1 contract

Samples: Stock Purchase Agreement (Smith a O Corp)

Calculation of Losses. The Parties acknowledge and agree that in the event any payment is required to be made by a party pursuant to this Article XII or Article IX in respect of any Losses or Taxes: (a) Subject Any liability for any Loss will be determined without duplication of recovery by reason of the state of facts giving rise to the provisions such Loss constituting a breach of more than one representation, warranty, covenant, or agreement of this Article XII, Trimble shall pay any obligations owed to the AGCO Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i)Agreement. (b) AGCO The amount of any Losses for which indemnification is provided under this ARTICLE VII shall pay any obligations owed to Trimble Indemnified Parties as follows: be (i) net of any amounts actually recovered by the Indemnified Party under insurance policies, third party indemnification obligations, or otherwise with respect to such Losses, net of any deductible or other expense incurred by the Indemnified Party in obtaining such recovery; and (ii) reduced by the value of any Tax benefits actually realized by the Indemnified Party to the extent the indemnifiable Loss claim for which indemnification is suffered sought gives rise to a deductible loss, credit or expense. If an insurance or other recovery is obtained by Purchaser, the Company or any one of its their Subsidiaries, AGCO then a refund equal to the aggregate amount of the net recovery shall be promptly delivered to Seller upon receipt. To the extent any proceeds are received after a Purchaser Indemnified Party has been indemnified for the applicable Loss, Purchaser shall pay 15% of or cause to be paid such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss amounts to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i)Indemnifying Parties. (c) For purposes of Article IX and Notwithstanding anything to the contrary elsewhere in this Article XIIAgreement, “Losses” shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earningsneither Party shall, in each caseany event, except be liable to any other Person for any Losses pursuant to this ARTICLE VII to the extent such Losses constitute speculative, indirect, special or punitive damages (i) actually except if and only to the extent any such damages are awarded against an Indemnified Party pursuant to a third party claim). (including as part d) Notwithstanding anything to the contrary elsewhere in this Agreement, the Purchaser Indemnified Parties are not entitled to indemnification pursuant to this ARTICLE VII to the extent that any matter, amount, item of a settlement) other fact for which they are seeking indemnification hereunder was included in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence determination of the relevant breach Final Adjustment Amount for purposes of determining adjustments to the Purchase Price under this Agreement (nor shall such Losses be applied to or action and were not caused by special circumstances considered for purposes of calculating the aggregate amount of Purchaser Indemnified Parties’ Losses for purposes of calculation of the Indemnified Parties, excluding punitive damagesDe Minimis Amount or the Basket Amount).

Appears in 1 contract

Samples: Purchase and Sale Agreement (VEREIT Operating Partnership, L.P.)

Calculation of Losses. 9.5.1. The Parties acknowledge amount of any Losses payable under Section 9.2 by the Indemnifying Party shall be net of any (a) amounts recovered (and agree subject to Indemnified Party obligations pursuant to Section 9.5.4) by the Indemnified Party under applicable insurance policies (less the amount of any premium paid) or from any other Person alleged to be responsible therefor and (b) Tax benefit realized by the Indemnified Party arising from the incurrence or payment of any such Losses. In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Losses. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount, including any premium paid. 9.5.2. The Indemnifying Party shall not be liable under Section 9.2 for any (a) Losses relating to any matter to the extent that (A) there is included in the event any payment is required Financial Statements a specific liability or reserve relating to be made by a party such matter or (B) the Indemnified Party had otherwise been compensated for such matter pursuant to this Article XII the Purchase Price adjustment hereunder. 9.5.3. An Indemnified Party shall not be entitled to recover Losses or Article IX obtain payment, reimbursement, restitution or indemnity more than once in respect of any Losses Loss, breach or Taxes:other set of circumstances which gives rise to more than one Claim. (a) Subject 9.5.4. Each Indemnified Party must mitigate in accordance with Applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement, including by enforcement of its rights under any applicable insurance policies. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the provisions Indemnifying Party the extent of this Article XII, Trimble shall pay any obligations owed the value of the benefit to the AGCO Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party of that mitigation (other than less the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes ’s reasonable costs of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of mitigation) within two Business Days after the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i)benefit is received. (b) AGCO shall pay any obligations owed to Trimble Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i). (c) For purposes of Article IX and this Article XII, “Losses” shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except to the extent (i) actually awarded to a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damages.

Appears in 1 contract

Samples: Share Purchase Agreement (DPW Holdings, Inc.)

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Calculation of Losses. (a) The Parties acknowledge and agree that in the event any payment is required to be made by a party pursuant to this Article XII or Article IX in respect amount of any Losses or Taxes: (a) Subject to payable under this ARTICLE XI by the provisions Indemnifying Party shall be net of this Article XII, Trimble shall pay any obligations owed to the AGCO Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered amounts actually recovered by the Company Indemnified Party under applicable insurance policies or from any of its Subsidiaries, Trimble shall pay 85% of such Loss other Person alleged to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and be responsible therefor and (ii) the net reduction in Taxes actually realized by the Indemnified Party arising from the incurrence or payment of any such Losses. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Losses or a Tax benefit subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the extent amount received by the indemnifiable Loss is suffered Indemnified Party, net of any expenses incurred by an AGCO such Indemnified Party (in collecting such amount. The Indemnified Party shall use Best Efforts to collect any amounts available under such insurance coverage or from such other than the Company or party alleged to have responsibility therefor prior to making any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, claim for purposes of indemnification under this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i)ARTICLE XI. (b) AGCO The Indemnifying Party shall pay not be liable under this ARTICLE XI for any obligations owed to Trimble Indemnified Parties as follows: (i) Losses relating to any matter to the extent that there is included in the indemnifiable Loss is suffered by the Company Closing Statement a specific liability or any of its Subsidiariesreserve relating to such matter, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and (ii) Losses the Indemnified Party had otherwise been compensated for pursuant to the extent adjustments to the indemnifiable Loss is suffered by a Trimble Indemnified Party Merger Consideration pursuant to SECTION 3.3, or (iii) punitive damages (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss amounts paid to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(ithird parties). (c) For purposes of Article IX The Indemnified Parties shall take, and this Article XIIshall cause their respective Affiliates to take, “Losses” shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except all reasonable steps to mitigate and otherwise minimize their Losses to the maximum extent reasonably possible upon and after becoming aware of any event which would reasonably be expected to give rise to any Losses. (id) actually awarded to If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses and the Indemnified Party could have recovered all or a part of such Losses from a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were based on the naturalunderlying claim asserted against the Indemnifying Party, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damagesParty shall assign such of its rights to proceed against such third party as are necessary to permit the Indemnifying Party to recover from such third party the amount of such indemnification payment.

Appears in 1 contract

Samples: Merger Agreement (Pactiv Corp)

Calculation of Losses. The Parties acknowledge and agree that in the event any payment is required to be made by a party pursuant to this Article XII or Article IX in respect of any Losses or Taxes: (a) Subject to the provisions of this Article XII, Trimble shall pay any obligations owed to the AGCO Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i). . (b) AGCO shall pay any obligations owed to Trimble Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i). (c) For purposes of Article IX and this Article XII, “Losses” shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except to the extent (i) actually awarded to a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damages.

Appears in 1 contract

Samples: Sale and Contribution Agreement (Agco Corp /De)

Calculation of Losses. The Parties acknowledge and agree that in For the event any payment is required purposes of calculating Losses to be made by a party pursuant to which the Buyer Indemnitees are entitled under this Article XII or Article IX in respect of any Losses or Taxes: (a) Subject to the provisions of this Article XIIX, Trimble shall pay any obligations owed to the AGCO Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i). (b) AGCO shall pay any obligations owed to Trimble Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i). (c) For purposes of Article IX and this Article XII, “Losses” shall not include any consequential, special, exemplary, incidental, indirect punitive damages relating to the breach or punitive damages, including, actual or potential lost profits, diminution in value or multiple alleged breach of earnings, in each casethis Agreement, except to the extent (i) actually punitive damages are awarded to a third party (including as part of a settlement) in connection with a Third Third-Party Claim or Claim; (ii) recoverable under applicable principles such Losses shall be determined without duplication of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence recovery by reason of the relevant state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or action and were agreement; (iii) such Losses shall not caused by special circumstances include Losses related to any matter that was subject to the determination of the Indemnified Partiesamount of any post-Closing adjustment pursuant to Section 2.14; and (iv) such Losses shall be reduced by the amount of any net proceeds that any Buyer Indemnitees actually receives pursuant to the terms of any insurance policies (taking into account any premiums, excluding punitive damagesfees, expenses or other costs incurred by such Buyer Indemnitee in pursuing coverage under such insurance policies); provided, however, such Buyer Indemnitee shall promptly reimburse the Sellers for any subsequent recoveries for such sources if previously indemnified hereunder so as to avoid a double recovery; and (v) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Buyer Indemnitee from any other Person with respect to such Losses; provided, however, such Buyer Indemnitee shall promptly reimburse the Sellers for any subsequent recoveries for such sources if previously indemnified hereunder so as to avoid a double recovery; and (vi) such Losses shall not include Losses reserved for in the Reference Balance Sheet. Buyer Indemnitees shall use commercially reasonable efforts to pursue recovery for Losses under any available insurance coverage (other than the R&W Insurance Policy, which is addressed above) and payment from any applicable Person under any agreement, contract, arrangement or commitment pursuant to which the Company Group or a Buyer Indemnitee is entitled to indemnification for any Loss for which a Buyer Indemnitee seeks indemnification pursuant to this Article X; provided, however, the pursuit of recovery under any available insurance coverage (other than the R&W Insurance Policy) or under any Contract shall not be a condition for such Buyer Indemnitee to seek recovery for Losses under this Article X. Without limiting Buyers’ obligations in the prior sentence or Sellers remedies hereunder, if Xxxxxx fail to pursue or unsuccessfully obtain recoveries under any applicable insurance policies or from such other applicable Persons, including pursuant to indemnification obligations of other applicable Persons in favor of the Company Group, then the Sellers’ Representative, without limiting the foregoing provisions or any of its other rights or remedies hereunder, shall have the right of subrogation to pursue such insurance policies or other applicable Persons on behalf of the Sellers and may take any reasonable actions necessary, at Sellers’ sole cost and expense, to pursue such rights of subrogation in a manner reasonably acceptable to Buyers (such approval not to be unreasonably withheld, conditioned or delayed) in its name or the name of the party from whom subrogation is obtained. Buyers shall use commercially reasonable efforts to cooperate with the Sellers’ Representative to pursue any such subrogation claim at Sellers’ sole cost and expense.

Appears in 1 contract

Samples: Securities Purchase Agreement (Skyline Champion Corp)

Calculation of Losses. (a) The Parties acknowledge amount of any Losses payable under this Article X by the Indemnifying Person shall be net of (i) any amounts actually received by the Indemnified Person under applicable insurance policies or from any other Person alleged to be responsible therefore or pursuant to any indemnity, contribution or other similar payment by any Person with respect thereto, net of any expenses reasonably incurred in connection with the collection thereof, including deductibles and agree self-insured retentions or from any other source; and (ii) any related Tax benefit actually realized by the Indemnified Person in connection with such Losses. If the Indemnified Person receives any amounts under applicable insurance policies, or from any other source, or a Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Person, then such Indemnified Person shall promptly reimburse the Indemnifying Person for any payment made or expense incurred by such Indemnifying Person in connection with providing such indemnification payment up to the amount received by the Indemnified Person, net of any expenses reasonably incurred by such Indemnified Person in collecting such amount (including deductibles and self-insured retentions). The Indemnified Person shall use reasonable efforts to collect any amounts available under such insurance coverage or from such other Person alleged to have responsibility therefor; provided, however, that (i) doing so is commercially reasonable and (ii) such obligation shall not be a condition to, or a limitation on, indemnification rights hereunder prior to making any claim for indemnification under this Article X. (b) The Indemnifying Person shall not be liable under this Article X for any Losses that are for punitive Losses, except in the case of fraud or criminal or willful misconduct and except to the extent such Losses were actually awarded, paid or incurred in respect of a third party Claim. (c) The Indemnified Person shall take, and shall cause its respective related Persons to take, all reasonable steps to mitigate and otherwise minimize their Losses to the maximum extent reasonably possible upon and after becoming aware of any event which would reasonably be expected to give rise to any Losses and an Indemnifying Person shall not be liable for any Losses to the extent that such Losses are attributable to the Indemnified Person’s failure to mitigate. (d) If the Indemnified Person receives any payment is required to be made by a party pursuant to this Article XII or Article IX from an Indemnifying Person in respect of any Losses and the Indemnified Person could have recovered all or Taxes: (a) Subject to a part of such Losses from a third party based on the provisions of this Article XIIunderlying claim asserted against the Indemnified Person, Trimble the Indemnified Person shall pay any obligations owed to the AGCO Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any assign such of its Subsidiaries, Trimble shall pay 85% rights to proceed against such third party as are necessary to permit the Indemnifying Person to recover from such third party the amount of such Loss to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i)indemnification payment. (be) AGCO shall pay any obligations owed to Trimble Indemnified Parties as follows: (i) Notwithstanding anything to the extent contrary contained herein, for the indemnifiable Loss is suffered by purpose of determining Losses associated with a breach of any representation or warranty, but not for the Company or any purpose of its Subsidiaries, AGCO shall pay 15% determining the occurrence of such Loss breach, all qualifications and exceptions contained in this Agreement relating to Trimble or, at Xxxxxxx’x election, 100% materiality or words of the Loss to the Company; and similar import (iiincluding Material Adverse Effect) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i)disregarded. (c) For purposes of Article IX and this Article XII, “Losses” shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except to the extent (i) actually awarded to a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damages.

Appears in 1 contract

Samples: Stock Purchase Agreement (Willdan Group, Inc.)

Calculation of Losses. (a) The Parties acknowledge amount of any Losses payable under ARTICLE IX or this ARTICLE X by the Indemnifying Party shall be net of any (i) amounts recovered or recoverable by the Indemnified Party under applicable insurance policies or from any other Person alleged to be responsible therefor (including, without limitation, under any release and/or acknowledgement signed by a Person in favor of Buyer, the Company, and/or the Subsidiary), and agree (ii) the Tax benefits realizable by the Indemnified Party arising from the incurrence or payment of any such Losses. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses reasonably incurred by such Indemnified Party in collecting such amount. The Indemnified Party shall use Reasonable Efforts to collect any amounts available under such insurance coverage or from such other Person alleged to have responsibility therefor, but shall not be required to commence or exhaust such efforts prior to making any claim for indemnification under this ARTICLE X. The Indemnifying Party shall not be liable under ARTICLE IX or this ARTICLE X for any (i) Losses relating to any matter to the extent that (A) there is included in the event Latest Balance Sheet or the Closing Date Balance Sheet a specific liability or a specific or general reserve relating to such matter, except that the foregoing limitation on an Indemnifying Party’s liability shall not apply to Losses arising out of a breach of the representation contained in Section 3.22 that exceed an otherwise unused general reserve of $200,000 or less, or (B) the Indemnified Party has otherwise been adequately compensated for such matter pursuant to any payment is required Transaction Consideration adjustments under Section 2.2, or (ii) solely with respect to be claims made by a party pursuant Buyer Indemnified Party, Losses arising with respect to this Article XII the representations and warranties relating to Taxes to the extent such Losses are attributable to periods (or Article IX portions thereof) beginning after the Closing Date, unless such Losses (A) are attributable to a breach of the representation set forth in Section 3.7(g), or (B) are attributable to a reduction in Pre-Closing Tax Period NOL’s (other than by reason of a change of a change of ownership under Code §382). In the case of a breach of the representation set forth in Section 3.7(g), the amount of the Loss will equal the reduction in the net present value of any Pre-Closing Tax Period NOL’s resulting from the change of ownership under Code §382. For purposes hereof, the net present value of the Pre-Closing Tax Period NOL’s that are subject to a Code §382 limitation arising from a change in control prior to the Closing Date (the “Section 382 Loss Present Value”) shall be determined using the following assumptions: (1) the value of the losses equals 40% of such losses, (2) the available losses are deemed to be used to the extent allowable under Code §382 limitation on January 1 of each year, and (3) the discount rate is equal to the rate in effect under Code §382(f) on the date of the ownership change. The indemnification amount shall equal the excess of (A) 40% of the net operating loss shown on the tax return for the tax period ending on the Closing Date over (B) the Section 382 Loss Present Value. In the case of any reduction in Pre-Closing Tax Period NOL’s (other than by reason of a change of a change of ownership under Code §382), the amount of such indemnification shall equal the actual increase in tax attributable to the reduction or disallowance of such Pre-Closing Tax Period NOL’s, taking into account the effect of other Pre-Closing Tax Period NOL’s which remain available. No indemnity payment shall be required in respect of any Losses a breach of Section 3.7(g) or Taxes: (a) Subject to the provisions of this Article XII, Trimble shall pay any obligations owed to the AGCO Indemnified Parties as follows: (i) a reduction in Pre-Closing Tax Period NOL’s to the extent the indemnifiable Loss is suffered by the Company that Buyer or any of Affiliate breaches its Subsidiaries, Trimble shall pay 85% of such Loss obligations relating to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company Tax Returns for Post-Closing Tax Periods or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes of this tax positions under Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i9.1(d). (b) AGCO shall pay any obligations owed to Trimble Indemnified Parties as follows: (i) to All materiality qualifications contained in the extent Company’s or the indemnifiable Loss is suffered by the Company Stockholder’s representations and warranties in this Agreement or any of its Subsidiariesother Agreements, AGCO including the term “Material Adverse Effect” shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, be ignored and not given effect under this Section 10.5 for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as determining whether a breach or violation has occurred for which an equityholder indemnity obligation exists. Without limiting the generality of the Company foregoing, with respect to any representation or any of its Subsidiaries warranty that is breached, all such qualifications shall be deemed to be losses suffered by ignored and not given effect for purposes of determining the Company amount of any damages resulting from any such breach or any violation and for the purpose of its Subsidiaries payable pursuant to Section 12.3(b)(i)determining whether the Minimum Individual Claim Amount or Threshold have been exceeded. (c) For purposes of Article IX The Indemnified Parties shall take, and this Article XIIshall cause their respective Affiliates to take, “Losses” shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except all reasonable steps to mitigate and otherwise minimize their Losses to the maximum extent reasonably possible upon and after becoming aware of any event which would reasonably be expected to give rise to any Losses. (id) actually awarded to If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses and the Indemnified Party could have recovered all or a part of such Losses from a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were based on the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of underlying claim asserted against the Indemnified PartiesParty, excluding punitive damagesthe Indemnified Party shall assign such of its rights to proceed against such third party as are necessary to permit the Indemnifying Party to recover from such third party the amount of such indemnification payment.

Appears in 1 contract

Samples: Stock Purchase Agreement (Epiq Systems Inc)

Calculation of Losses. (a) The Parties acknowledge and agree that in the event any payment is required to be made by a party pursuant to this Article XII or Article IX in respect amount of any Losses payable under Section 9.2 by the Indemnifying Party shall be net of any amounts actually recovered by the Indemnified Party under applicable insurance policies or Taxes: (a) Subject from any other Person alleged to be responsible therefor, less reasonable costs or expenses incurred by the Indemnifying Party in obtaining such recovery. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by the Indemnifying Party in connection with providing such indemnification payment up to the provisions of this Article XII, Trimble shall pay any obligations owed to amount actually received by the AGCO Indemnified Parties as follows: Party (less (i) to the extent the indemnifiable Loss is aggregate amount of applicable Losses incurred or suffered by the Company or any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% of Indemnified Party for which Indemnifying Party did not indemnify the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, understood and agreed that, for purposes of this Section 12.3(a)clause, Losses of AGCO consisting any amount of Losses suffered indirectly in its capacity as an equityholder of set off against the Company or any of its Subsidiaries Basket Amount shall be deemed to be losses suffered have been paid by the Company Indemnifying Party to the Indemnified Party) and (ii) any reasonable cost or any of its Subsidiaries payable pursuant to Section 12.3(a)(iexpense incurred by the Indemnified Party in obtaining such recovery). (b) AGCO The Indemnifying Party shall pay not be liable under Section 9.2 for any obligations owed to Trimble Indemnified Parties as follows: (i) punitive or exemplary Losses, except to the extent the Indemnified Party is required to pay any amounts to any Third Party for such Losses in regard to a matter that is otherwise indemnifiable Loss is suffered by the Company or any of its Subsidiarieshereunder. In addition, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss notwithstanding anything herein to the Company; and (iicontrary, Losses indemnifiable by Contributor under Section 9.2(a) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (shall expressly exclude any and all diminution in value of any Person other than the Company (or any of its Subsidiariessuccessor), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes including any decrease in the value or price of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i)WPZ Units. (c) For purposes of Article IX and this Article XII, “Losses” Contributor shall not include have no obligation to indemnify Acquirer or its Affiliates pursuant to Section 9.2 with respect to any consequential, special, exemplary, incidental, indirect Losses or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except alleged Losses to the extent that the matter forming the basis for such Losses or alleged Losses was taken into account in the determination of Final Purchase Price Adjustment Amount. (id) actually awarded Any indemnity payment under this Agreement shall be treated as an adjustment to a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damagesFinal Purchase Price for Tax purposes.

Appears in 1 contract

Samples: Contribution Agreement (Williams Partners L.P.)

Calculation of Losses. (a) The Parties acknowledge and agree that in the event any payment is required to be made by a party pursuant to this Article XII or Article IX in respect amount of any Losses for which indemnification is provided under Section 8.2 or Taxes: (a) Subject to the provisions Section 9.6 shall be net of this Article XII, Trimble shall pay any obligations owed to the AGCO Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered any amounts actually received by the Company Indemnified Party pursuant to any indemnification by or indemnification agreement with any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and non-Affiliate third party and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party any insurance proceeds (other than proceeds received from self-insurance, captive insurers, retrospective insurance policies or the Company or any of its SubsidiariesR&W Policy) actually received as an offset against such Losses, in each case with respect to the forgoing clauses (i) and (ii), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understoodless any costs, thatexpenses, for purposes of deductibles, premiums, and future premium increases incurred in connection therewith. Nothing in this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries 8.7 shall be deemed to (x) require an Indemnified Party to proceed or seek action or recovery from any third party as a requirement hereunder or as a condition to seeking or recovering indemnification from any Indemnifying Party hereunder, or (y) be losses suffered by the Company construed or interpreted as a guaranty of any level or amount of its Subsidiaries payable pursuant insurance recovery with respect to Section 12.3(a)(i)any Losses hereunder or as a requirement to obtain or maintain any insurance or to make any claim for insurance as a condition to any indemnification hereunder, and no Seller Indemnifying Party shall have any right to subrogation under any insurance or third party indemnification agreement and each Seller Indemnifying Party, for itself and on behalf of all Seller Indemnifying Parties, hereby waives such rights, if any. (b) AGCO shall pay any obligations owed to Trimble Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% Each of the Loss representations and warranties that contains any “Material Adverse Effect,” “material,” “materially” or similar qualifications shall be read as though such qualifications were not contained therein for the purposes of determining whether a breach has occurred and the amount of Losses to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble which such Indemnified Party may be entitled under this Article 8; provided, however, that when such qualifications are used in Section 3.7(b) or in a definitional manner (other than the Company e.g., Material Customer or any of its SubsidiariesMaterial Supplier), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i). (c) For purposes of Article IX and this Article XII, “Losses” qualifications shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except to the extent (i) actually awarded to a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damagesbe disregarded.

Appears in 1 contract

Samples: Merger Agreement (Alkami Technology, Inc.)

Calculation of Losses. (a) The Parties acknowledge and agree that in the event any payment is required to be made by a party pursuant to this Article XII or Article IX in respect amount of any Losses or Taxes: (a) Subject to payable under Section 9.2 by the provisions applicable Indemnifying Party shall be net of this Article XII, Trimble shall pay any obligations owed to the AGCO Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered amounts recovered by the Company Indemnified Party or its Affiliates under applicable insurance policies or from any of its Subsidiariesother Person alleged to be responsible therefor, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and and (ii) Tax benefit actually realized in a Post-Closing Tax Period by the Indemnified Party or its Affiliates arising from the incurrence or payment of any such Losses with respect to the extent taxable year of incurrence or payment of such Losses. In computing the indemnifiable Loss is suffered by an AGCO amount of any such Tax benefit, the Indemnified Party (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to fully utilize, at the highest applicable marginal Tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Losses. If the Indemnified Party (x) receives any amounts under applicable insurance policies, or from any other Person alleged to be losses suffered responsible for any Losses, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Company Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount or (y) realizes any net Tax benefit subsequent to an indemnification payment by the Indemnifying Party that was not previously taken into account in the indemnification payment, then such Indemnified Party shall promptly pay to the Indemnifying Party the amount of its Subsidiaries payable such net Tax benefit (as computed pursuant to this Section 12.3(a)(i9.6), net of any out-of-pocket expenses incurred by such Indemnified Party in collecting such amount. (b) AGCO The Indemnifying Party shall pay not be liable under Section 9.2 for any obligations owed to Trimble Indemnified Parties as follows: (i) Losses relating to any matter to the extent that the indemnifiable Loss is suffered by related Liabilities were reflected in or taken into account in the Company determination of Final Closing Working Capital or any Final Closing Indebtedness (for the avoidance of its Subsidiariesdoubt, AGCO shall pay 15% of such Loss to Trimble orSeller being the Indemnifying Party), at Xxxxxxx’x election, 100% of the Loss to the Company; and or (ii) consequential, indirect, incidental, special, exemplary, punitive or other similar Losses or Losses for lost profits or diminution in value except to the extent the indemnifiable Loss is suffered that such Losses are awarded by a Trimble judgment or Order against, and paid by, an Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i)a Third Party Claim. (c) For purposes Each Indemnified Party shall use commercially reasonable efforts to mitigate any Losses for which such Indemnified Party seeks indemnification under this Agreement upon becoming aware of Article IX and this Article XII, “Losses” shall not include any consequential, special, exemplary, incidental, indirect event or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except circumstance that gives rise to indemnification obligations pursuant to Section 9.2 to the extent (i) actually awarded required by Applicable Law. If such Indemnified Party mitigates its Losses after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that Losses, the Indemnified Party must notify the Indemnifying Party and pay to a third party (including as part of a settlement) in connection with a Third the Indemnifying Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence extent of the relevant breach or action and were not caused by special circumstances value of the benefit to the Indemnified PartiesParty of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within ten (10) Business Days after the benefit is received. (d) Each Indemnified Party and its Affiliates shall use commercially reasonable efforts to collect any amounts available under insurance coverage, excluding punitive damagesor from any other Person alleged to be responsible, for any Losses payable under Section 9.2; provided, however, that no Indemnified Party shall be required to commence any Action in any court of competent jurisdiction against an insurance provider.

Appears in 1 contract

Samples: Asset and Stock Purchase Agreement (Whirlpool Corp /De/)

Calculation of Losses. 9.5.1. The Parties acknowledge amount of any Losses payable under Section ‎9.2 by the Indemnifying Party shall be net of any (a) amounts recovered (and agree subject to Indemnified Party obligations pursuant to Section ‎9.5.4) by the Indemnified Party under applicable insurance policies (less the amount of any premium paid) or from any other Person alleged to be responsible therefor and (b) Tax benefit realized by the Indemnified Party arising from the incurrence or payment of any such Losses. In computing the amount of any such Tax benefit, the Indemnified Party shall be deemed to fully utilize, at the highest marginal tax rate then in effect, all Tax items arising from the incurrence or payment of any indemnified Losses. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount, including any premium paid. 9.5.2. The Indemnifying Party shall not be liable under Section ‎9.2 for any (a) Losses relating to any matter to the extent that (A) there is included in the event any payment is required Financial Statements a specific liability or reserve relating to be made by a party such matter or (B) the Indemnified Party had otherwise been compensated for such matter pursuant to this Article XII the Purchase Price adjustment hereunder. 9.5.3. An Indemnified Party shall not be entitled to recover Losses or Article IX obtain payment, reimbursement, restitution or indemnity more than once in respect of any Losses Loss, breach or Taxes:other set of circumstances which gives rise to more than one Claim. (a) Subject 9.5.4. Each Indemnified Party must mitigate in accordance with Applicable Law any loss for which such Indemnified Party seeks indemnification under this Agreement, including by enforcement of its rights under any applicable insurance policies. If such Indemnified Party mitigates its loss after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the provisions Indemnifying Party the extent of this Article XII, Trimble shall pay any obligations owed the value of the benefit to the AGCO Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party of that mitigation (other than less the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for purposes ’s reasonable costs of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of mitigation) within two Business Days after the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i)benefit is received. (b) AGCO shall pay any obligations owed to Trimble Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i). (c) For purposes of Article IX and this Article XII, “Losses” shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except to the extent (i) actually awarded to a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damages.

Appears in 1 contract

Samples: Share Purchase Agreement (Micronet Enertec Technologies, Inc.)

Calculation of Losses. The Parties acknowledge and agree that in the event any payment is required to be made by a party pursuant to this Article XII or Article IX in respect of any Losses or Taxes: (a) Subject to the provisions of this Article XII, Trimble shall pay any obligations owed to the AGCO Indemnified Parties as follows: (i) No Indemnified Person is required hereunder to pursue recovery under a contract for insurance prior to exercising its rights under an applicable indemnity set forth in this Agreement. If and to the extent an Indemnified Person elects to make a claim to its insurer for such Losses hereunder or as a result of a Third Party Claim subject to indemnification hereunder, is not making such claim as an additional insured under the indemnifiable Indemnifying Person’s insurance policy, and recovers monies pursuant to a contract for insurance for a Third Party Claim or Loss for which it has also received or is also pursuing or may be entitled to payment pursuant to an indemnity under this Agreement, the Indemnified Person will promptly pay the Indemnifying Person the amounts of such insurance recoveries that such Indemnified Person collects within 12 months of when such Losses were incurred or suffered by such Indemnified Person (up to the Company or amounts the Indemnifying Person has already paid in fulfilling its indemnification obligations) and shall modify and reduce the outstanding claims under such indemnity against the Indemnifying Person by any and all remaining amounts *** Portions of its Subsidiaries, Trimble shall pay 85% of such Loss this page have been omitted pursuant to AGCO or, at AGCO’s election, 100% a request for Confidential Treatment filed separately with the Commission. of the Loss insurance recoveries in order to prevent any duplicative recovery. Notwithstanding anything to the Company; andcontrary in this Section 8.5(e) or otherwise in this Agreement, no recovery by an Indemnified Person under any insurance policy shall limit the Indemnifying Person’s indemnification obligations under this Agreement for any Third Party Claim or Loss not covered by any recovery by the Indemnified Person under a contract for insurance for a Third Party Claim or Loss.” (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for For all purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i). (b) AGCO shall pay any obligations owed to Trimble Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i). (c) For purposes of Article IX and this Article XII8, “Losses” shall not include any consequential, special, exemplary, incidental, indirect or punitive damages, including, actual or potential lost profits, diminution in value or multiple of earnings, in each case, except to the extent (i) actually awarded to a third party (including as part of a settlement) in connection with a Third Party Claim or (ii) recoverable under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence of the relevant breach or action and were not caused by special circumstances of the Indemnified Parties, excluding punitive damagesbe *** *** .

Appears in 1 contract

Samples: Stock Acquisition Agreement (Active Network Inc)

Calculation of Losses. The Parties acknowledge and agree that in the event any payment is required to be made by a party pursuant to this Article XII or Article IX in respect of any Losses or Taxes: (a) Subject to the provisions of this Article XII, Trimble shall pay any obligations owed to the AGCO Indemnified Parties as follows: (i) No Indemnified Person is required hereunder to pursue recovery under a contract for insurance prior to exercising its rights under an applicable indemnity set forth in this Agreement. If and to the extent an Indemnified Person elects to make a claim to its insurer for such Losses hereunder or as a result of a Third Party Claim subject to indemnification hereunder, is not making such claim as an additional insured under the indemnifiable Indemnifying Person’s insurance policy, and recovers monies pursuant to a contract for insurance for a Third Party Claim or Loss for which it has also received or is also pursuing or may be entitled to payment pursuant to an indemnity under this Agreement, the Indemnified Person will promptly pay the Indemnifying Person the amounts of such insurance recoveries that such Indemnified Person collects within 12 months of when such Losses were incurred or suffered by such Indemnified Person (up to the Company or amounts the Indemnifying Person has already paid in fulfilling its indemnification obligations) and shall modify and reduce the outstanding claims under such indemnity against the Indemnifying Person by any of its Subsidiaries, Trimble shall pay 85% of such Loss to AGCO or, at AGCO’s election, 100% and all remaining amounts of the Loss insurance recoveries in order to prevent any duplicative recovery. Notwithstanding anything to the Company; andcontrary in this Section 8.5(e) or otherwise in this Agreement, no recovery by an Indemnified Person under any insurance policy shall limit the Indemnifying Person’s indemnification obligations under this Agreement for any Third Party Claim or Loss not covered by any recovery by the Indemnified Person under a contract for insurance for a Third Party Claim or Loss.” (ii) to the extent the indemnifiable Loss is suffered by an AGCO Indemnified Party (other than the Company or any of its Subsidiaries), then Trimble shall pay such Loss to such AGCO Indemnified Party; it being understood, that, for For all purposes of this Section 12.3(a), Losses of AGCO consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(a)(i). (b) AGCO shall pay any obligations owed to Trimble Indemnified Parties as follows: (i) to the extent the indemnifiable Loss is suffered by the Company or any of its Subsidiaries, AGCO shall pay 15% of such Loss to Trimble or, at Xxxxxxx’x election, 100% of the Loss to the Company; and (ii) to the extent the indemnifiable Loss is suffered by a Trimble Indemnified Party (other than the Company or any of its Subsidiaries), then AGCO shall pay such Loss to such Trimble Indemnified Party; it being understood, that, for purposes of this Section 12.3(b), Losses of Trimble consisting of Losses suffered indirectly in its capacity as an equityholder of the Company or any of its Subsidiaries shall be deemed to be losses suffered by the Company or any of its Subsidiaries payable pursuant to Section 12.3(b)(i). (c) For purposes of Article IX and this Article XII8, “Losses” shall not include be net of any consequentialTax benefit “currently realized” by the Indemnified Party or its affiliates arising in connection with the accrual, specialincurrence, exemplaryor payment of any Losses (including Taxes) or claims. Losses or Taxes for which indemnification is provided under Section 8.1 or 9.1, incidentalshall be increased by the amount of any Tax detriment “currently suffered” by the Indemnified Party or its Affiliates arising in connection with the accrual, indirect incurrence, or punitive damages, including, actual payment of any Losses (including Taxes) or potential lost profits, diminution in value or multiple of earnings, in each case, except claims. A Tax benefit is “currently realized,” and a Tax detriment is “currently suffered,” if and to the extent (iit is realized or suffered in the tax year in which the indemnity payment is made or any prior tax year. The Indemnified Party and its Affiliates shall not be deemed to have realized a Tax benefit unless and until such Person has utilized all of its other deductions, losses, credits and other items. The parties shall cooperate in good faith in providing each other the information necessary to determine the Tax benefit or Tax detriment, as the case may be. If the amount of any Tax benefit or Tax detriment initially determined pursuant to this Section 8.5(e) actually awarded to is subsequently increased or decreased as a third party (including as part result of a settlement) in connection with a Third Party Claim or (ii) recoverable final “determination” under applicable principles of Delaware contract law because they were the natural, probable and reasonably foreseeable consequence Section 1313 of the relevant breach Code (or action and were not caused by special circumstances similar provision of state or foreign law), then the Indemnifying Party or the Indemnified Party, as the case may be, shall pay to the other an amount such that the aggregate amount paid to the Indemnified Party pursuant to Section 8.1 or 9.1 equals the amount that would have been paid to the Indemnified Party pursuant to Section 8.1 or 9.1 had the result of the Indemnified Parties, excluding punitive damagesfinal “determination” been taken into account in the initial calculation of the amount of the Tax benefit or Tax detriment.

Appears in 1 contract

Samples: Stock Acquisition Agreement (Active Network Inc)

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