Certain Limitations; Source of Payment. The indemnification provided for in Section 9.2 and Section 9.3 shall be subject to the following limitations: (a) The Company Indemnitors shall not be liable to the Parent Indemnitees for indemnification under Section 9.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.2(a) exceeds $1,100,000 (the “Basket”), in which event the Company Indemnitors shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which the Company Securityholders shall be liable pursuant to Section 9.2(a) and Section 9.2(e) shall not exceed $18,000,000 (the “Cap”). (b) Parent shall not be liable to the Stockholder Indemnitees for indemnification under Section 9.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.3(a) exceeds the Basket, in which event Parent shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Parent shall be liable pursuant to Section 9.3(a) shall not exceed the Cap. (c) Notwithstanding the foregoing, the limitations set forth in Section 9.4(a) and Section 9.4(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 3.1, Section 3.2, Section 3.3(a), Section 3.14, Section 4.1, Section 4.2(a), and Section 4.9. (d) Notwithstanding anything in this Agreement to the contrary, in no event shall any Company Securityholder be (i) liable for Losses under this Agreement in an aggregate amount that exceeds the Pro Rata Portion of the Merger Consideration actually received by such Company Securityholder, (ii) liable for Fraud committed by any other Company Securityholder, or (iii) to the extent of Losses subject to the Cap, liable for Losses under this Agreement in an amount that exceeds such Company Securityholder’s Pro Rata Portion of the Cap. (e) For purposes of this Article IX, the existence of any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty. (f) The indemnified parties hereunder shall use its commercially reasonable efforts to mitigate any Loss for which it seeks to be indemnified pursuant to this Article IX in accordance with the requirements of applicable Law. (g) The amount of any Losses that any indemnified party hereunder will be entitled to recover pursuant to this Article IX will be calculated net of any insurance proceeds or any indemnity, contribution or other similar payment actually recovered by the indemnified party from any third party with respect to such Losses, in each case net of all costs of recovery (including any increased insurance premiums directly attributable to any such insurance recovery). In the event that any insurance proceeds or other indemnity, contribution or similar payment is actually recovered by any indemnified party with respect to any Losses for which such indemnified party has previously been indemnified pursuant to this Article IX, then the indemnified party will promptly refund to the indemnifying party an amount equal to the lesser of (A) the aggregate amount of such insurance proceeds or other indemnity, contribution or similar payment (net of all costs of recovery, including any increased insurance premiums directly attributable to any such insurance recovery) and (B) the aggregate amount previously paid to the indemnified party by the indemnifying party pursuant to this Article IX in respect of such Losses. In the event any payment is made by an indemnifying party in respect of Losses pursuant to this Article IX, such indemnifying party shall be subrogated to the extent of such payment to any related rights of recovery of the indemnified party receiving such payment against any Person in respect of the Losses to which such payment relates. (h) No Indemnified Party shall be entitled to indemnification pursuant to this Agreement with respect to the breach of any representation, warranty, covenant or agreement made by the Indemnifying Party in this Agreement if the Indemnified Party had, and the Indemnifying Party proves that the Indemnified Party had, actual knowledge of such breach as of the date hereof.
Appears in 2 contracts
Samples: Merger Agreement (Acreage Holdings, Inc.), Merger Agreement
Certain Limitations; Source of Payment. The indemnification provided for in Section 9.2 and Section 9.3 shall be subject to the following limitations:
(a) The Company Indemnitors shall not be liable to the Parent Indemnitees for indemnification under Section 9.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.2(a) exceeds $1,100,000 (the “Basket”), in which event the Company Indemnitors shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which the Company Securityholders shall be liable pursuant to Section 9.2(a) and Section 9.2(e) shall not exceed $18,000,000 (the “Cap”).
(b) Parent shall not be liable to the Stockholder Indemnitees for indemnification under Section 9.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.3(a) exceeds the Basket, in which event Parent shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Parent shall be liable pursuant to Section 9.3(a) shall not exceed the Cap.
(c) Notwithstanding the foregoing, the limitations set forth in Section 9.4(a) and Section 9.4(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 3.1, Section 3.2, Section 3.3(a), Section 3.14, Section 4.1, Section 4.2(a), and Section 4.9.
(d) Notwithstanding anything in this Agreement to the contrary, in no event shall any Company Securityholder be (i) liable for Losses under this Agreement in an aggregate amount that exceeds the Pro Rata Portion of the Merger Consideration actually received by such Company Securityholder, (ii) liable for Fraud committed by any other Company Securityholder, or (iii) to the extent of Losses subject to the Cap, liable for Losses under this Agreement in an amount that exceeds such Company Securityholder’s Pro Rata Portion of the Cap.
(e) For purposes of this Article IX, the existence of any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(f) The indemnified parties hereunder shall use its commercially reasonable efforts to mitigate any Loss for which it seeks to be indemnified pursuant to this Article IX in accordance with the requirements of applicable Law.
(g) The amount of any Losses that any indemnified party hereunder will be entitled to recover pursuant to this Article IX will be calculated net of any insurance proceeds or any indemnity, contribution or other similar payment actually recovered by the indemnified party from any third party with respect to such Losses, in each case net of all costs of recovery (including any increased insurance premiums directly attributable to any such insurance recovery). In the event that any insurance proceeds or other indemnity, contribution or similar payment is actually recovered by any indemnified party with respect to any Losses for which such indemnified party has previously been indemnified pursuant to this Article IX, then the indemnified party will promptly refund to the indemnifying party an amount equal to the lesser of (A) the aggregate amount of such insurance proceeds or other indemnity, contribution or similar payment (net of all costs of recovery, including any increased insurance premiums directly attributable to any such insurance recovery) and (B) the aggregate amount previously paid to the indemnified party by the indemnifying party pursuant to this Article IX in respect of such Losses. In the event any payment is made by an indemnifying party in respect of Losses pursuant to this Article IX, such indemnifying party shall be subrogated to the extent of such payment to any related rights of recovery of the indemnified party receiving such payment against any Person in respect of the Losses to which such payment relates.
(h) No Indemnified Party shall be entitled to indemnification pursuant to this Agreement with respect to the breach of any representation, warranty, covenant or agreement made by the Indemnifying Party in this Agreement if the Indemnified Party had, and the Indemnifying Party proves that the Indemnified Party had, actual knowledge of such breach as of the date hereof.
Appears in 1 contract
Samples: Merger Agreement
Certain Limitations; Source of Payment. The indemnification provided for in Section 9.2 and Section 9.3 shall be subject to the following limitations:
(a) The Company Indemnitors shall not be liable to the Parent Indemnitees for indemnification under Section 9.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.2(a) exceeds $1,100,000 500,000.00 (the “Basket”), in which event the Company Indemnitors shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which the Company Securityholders Members shall be liable pursuant to Section 9.2(a) and Section 9.2(e) shall not exceed $18,000,000 18,000,000.00 (the “Cap”).
(b) Parent shall not be liable to the Stockholder Member Indemnitees for indemnification under Section 9.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.3(a) exceeds the Basket, in which event Parent shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Parent shall be liable pursuant to Section 9.3(a) shall not exceed the Cap.
(c) Notwithstanding the foregoing, the limitations set forth in Section 9.4(a) and Section 9.4(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 3.1, Section 3.2, Section 3.3(a), Section 3.14, Section 4.1, Section 4.2(a), Section 4.3(a) and Section 4.94.8.
(d) Notwithstanding anything in this Agreement to the contrary, in no event shall any Company Securityholder be (i) liable for Losses under this Agreement in an aggregate amount that exceeds the Pro Rata Portion of the Merger Consideration actually received by such Company Securityholder, (ii) liable for Fraud committed by any other Company Securityholder, or (iii) to the extent of Losses subject to the Cap, liable for Losses under this Agreement in an amount that exceeds such Company Securityholder’s Pro Rata Portion of the Cap.
(e) For purposes of this Article IX, the existence of any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(f) The indemnified parties hereunder shall use its commercially reasonable efforts to mitigate any Loss for which it seeks to be indemnified pursuant to this Article IX in accordance with the requirements of applicable Law.
(g) The amount of any Losses that any indemnified party hereunder will be entitled to recover pursuant to this Article IX will be calculated net of any insurance proceeds or any indemnity, contribution or other similar payment actually recovered by the indemnified party from any third party with respect to such Losses, in each case net of all costs of recovery (including any increased insurance premiums directly attributable to any such insurance recovery). In the event that any insurance proceeds or other indemnity, contribution or similar payment is actually recovered by any indemnified party with respect to any Losses for which such indemnified party has previously been indemnified pursuant to this Article IX, then the indemnified party will promptly refund to the indemnifying party an amount equal to the lesser of (A) the aggregate amount of such insurance proceeds or other indemnity, contribution or similar payment (net of all costs of recovery, including any increased insurance premiums directly attributable to any such insurance recovery) and (B) the aggregate amount previously paid to the indemnified party by the indemnifying party pursuant to this Article IX in respect of such Losses. In the event any payment is made by an indemnifying party in respect of Losses pursuant to this Article IX, such indemnifying party shall be subrogated to the extent of such payment to any related rights of recovery of the indemnified party receiving such payment against any Person in respect of the Losses to which such payment relates.
(h) No Indemnified Party shall be entitled to indemnification pursuant to this Agreement with respect to the breach of any representation, warranty, covenant or agreement made by the Indemnifying Party in this Agreement if the Indemnified Party had, and the Indemnifying Party proves that the Indemnified Party had, actual knowledge of such breach as of the date hereof.
Appears in 1 contract
Samples: Merger Agreement
