Determination of Damages and Related Matters. (a) For purposes of indemnification under Sections 12.1(a)(i)(A) and 12.1(b)(i)(A), any breach of any representation or warranty shall be deemed to constitute a breach of such representation or warranty notwithstanding any limitation or qualification as to materiality set forth in such representation or warranty on the scope, accuracy or completeness thereto, it being the intention of the parties hereto that, each Indemnified Party shall be indemnified and held harmless from and against any and all Losses arising out of or based upon or with respect to the failure of any such representation or warranty to be true, correct and complete in any respect. (b) To the extent any payment under this Article XII cannot properly be treated as an adjustment to the Consideration for Tax purposes, then any such amount shall be increased to take account of any net Tax cost incurred by the Indemnified Party by reason of the receipt of any indemnity payment (grossed-up for such increase). Any payment to an Indemnified Party pursuant to this Article XII shall be reduced to take account of any net Tax benefit actually realized by the Indemnified Party in respect of the taxable year in which such Loss is incurred or paid and, with respect to a Tax benefit arising in a year subsequent to the year in which the Loss is paid or incurred, the Indemnified Party shall pay to the Indemnifying Party the amount of such Tax benefit (including, as relevant, any member of its Affiliated Group) when such Tax benefit is actually realized. In computing the amount of any such Tax cost or Tax benefit, the 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 of any indemnity payment hereunder or the incurrence or payment of any indemnified loss, liability, claim, damage or expense.
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Samples: Asset Purchase Agreement (Hollywood Media Corp), Asset Purchase Agreement (Hollywood Media Corp)
Determination of Damages and Related Matters. (a) For purposes of indemnification under Sections 12.1(a)(i)(A11.1(a)(i)(A) and 12.1(b)(i)(A11.1(b)(i)(A), any breach of any representation or warranty shall be deemed to constitute a breach of such representation or warranty notwithstanding any limitation or qualification as to materiality set forth in such representation or warranty on the scope, accuracy or completeness thereto, it being the intention of the parties hereto that, each Indemnified Party shall be indemnified and held harmless from and against any and all Losses arising out of or based upon or with respect to the failure of any such representation or warranty to be true, correct and complete in any respect. Notwithstanding the foregoing, no Indemnifying Party shall be liable for purposes of indemnification under Section 11.1(a)(i)(A) or Section 11.1(b)(i)(A) until the amount of the Losses arising thereunder exceed $20,000, at which time the Indemnifying Party shall be liable for any and all Losses.
(ba) To the extent any payment under this Article XII XI cannot properly be treated as an adjustment to the Consideration for Tax purposes, then any such amount shall be increased to take account of any net Tax cost incurred by the Indemnified Party by reason of the receipt of any indemnity payment (grossed-up for such increase). Any payment to an Indemnified Party pursuant to this Article XII XI shall be reduced to take account of any net Tax benefit actually realized by the Indemnified Party in respect of the taxable year in which such Loss is incurred or paid and, with respect to a Tax benefit arising in a year subsequent to the year in which the Loss is paid or incurred, the Indemnified Party shall pay to the Indemnifying Party the amount of such Tax benefit (including, as relevant, any member of its Affiliated Group) when such Tax benefit is actually realized. In computing the amount of any such Tax cost or Tax benefit, the 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 of any indemnity payment hereunder or the incurrence or payment of any indemnified loss, liability, claim, damage or expense.
(b) In the absence of fraud or willful misconduct on the part of the Indemnifying Party or any of its employees or agents, an Indemnifying Party shall not have liability for Losses indemnifiable under Section 11.1(a) or Section 11.1(b) in excess of $2,500,000 in the aggregate; provided, however, that the foregoing cap shall not apply to any Losses in respect of Taxes for which Seller has indemnified Buyer under Section 11.1(a).
(c) Until the earlier of three years after the Closing Date and such time as it is no longer possible in law or fact for the Indemnified Party to sustain Losses by reason of any breach hereof or to assert a claim with respect to any such breach or Losses, except as otherwise provided herein, the indemnification provisions of this Article XI shall survive.
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Determination of Damages and Related Matters. (a) For purposes of indemnification under Sections 12.1(a)(i)(A) and 12.1(b)(i)(A), any breach of any representation or warranty shall be deemed to constitute a breach of such representation or warranty notwithstanding any limitation or qualification as to materiality set forth in such representation or warranty on the scope, accuracy or completeness thereto, it being the intention of the parties hereto that, each Indemnified Party shall be indemnified and held harmless from and against any and all Losses arising out of or based upon or with respect to the failure of any such representation or warranty to be true, correct and complete in any respect.
(b) To the extent any payment Payments under this Article XII cannot properly XI to a Seller other than Baseline shall be treated treated, for federal income tax purposes (to the extent possible under applicable Tax law), as an adjustment to the Consideration for Tax purposessuch Seller received. In all other circumstances, then any such amount shall be increased to take account of any net Tax cost incurred by the Indemnified Party by reason of the receipt of any indemnity payment (grossed-up for such increase). Any payment to an Indemnified Party pursuant to this Article XII XI shall be reduced to take account of any net Tax benefit actually realized by the Indemnified Party in respect of the taxable year in which such Loss is incurred or paid and, with respect to a Tax benefit arising in a year subsequent to the year in which the Loss is paid or incurred, the Indemnified Party shall pay to the Indemnifying Party the amount of such Tax benefit (including, as relevant, any member of its Affiliated Group) when such Tax benefit is actually realized. In computing the amount of any such Tax cost or Tax benefit, the Indemnified Party (and all members of its Affiliated Group) 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 indemnified loss, liability, claim, damage or expense.
(b) The provisions of this Article XI shall survive, (i) with respect to the representations and warranties contained in this Agreement, as provided in Section 13.1 and (ii) with respect to all other Losses covered by Section 11.1, until such time as a court of law has determined that the statute of limitations has expired with respect to claims in respect of any such Losses. Until it is no longer possible in law or fact for the Indemnified Party to sustain Losses by reason of any breach hereof or to assert a claim with respect to any such breach or Losses, PKA shall not file a certificate of dissolution with respect to any voluntary dissolution or liquidation.
(c) If any claim is pending against Baseline or PKA pursuant to Section 11.1(a)(ii), (iii), (iv), (v) or (vi) on the second anniversary of the Closing Date, Seller shall be restricted, until such claim is resolved, from transferring a number of shares of Common Stock constituting the Stock Consideration or the Warrant Consideration (including the shares of Common Stock underlying the Warrant) having an aggregate market value equal to the amount of such claim.
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Determination of Damages and Related Matters. (a) For purposes of indemnification under Sections 12.1(a)(i)(A) and 12.1(b)(i)(A), any breach of any representation or warranty shall be deemed to constitute a breach of such representation or warranty notwithstanding any limitation or qualification as to materiality set forth in such representation or warranty on the scope, accuracy or completeness thereto, it being the intention of the parties hereto that, each Indemnified Party shall be indemnified and held harmless from and against any and all Losses arising out of or based upon or with respect to the failure of any such representation or warranty to be true, correct and complete in any respect.
(b) To the extent any payment under this Article XII XI cannot properly be treated as an adjustment to the Consideration for Tax purposes, then any such amount shall be increased to take account of any net Tax cost actually incurred by the Indemnified Party by reason of the receipt of any indemnity payment (grossed-up for such increase)) for the taxable year during which such payment is received. With respect to any Tax Cost arising in a year subsequent to the year in which the indemnity payment is made, the Indemnifying Party shall pay to the Indemnified Party the amount of such Tax Cost when such Tax Cost is actually incurred. Any payment to an Indemnified Party pursuant to this Article XII XI shall be reduced to take account of any net Tax benefit actually realized by the Indemnified Party in respect of the taxable year in which such Loss is incurred or paid and, with respect to a Tax benefit arising in a year subsequent to the year in which the Loss is paid or incurred, the Indemnified Party shall pay to the Indemnifying Party the amount of such Tax benefit (including, as relevant, any member of its Affiliated Group) when such Tax benefit is actually realized. In computing the amount of any such Tax cost or Tax benefit, the 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 of any indemnity payment hereunder or the incurrence or payment of any indemnified loss, liability, claim, damage or expense.
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