Further Limitations on Indemnification. (a) Following the Closing, except with respect to matters covered by Section 1.5, the rights of the parties under Sections 8.2 and 8.3 (and under Article IX) will be the exclusive remedy of the parties (and the Transferred Companies) with respect to any claims a party may have against the other party or such other party’s Affiliates under, relating to or in connection with this Agreement and the transactions contemplated hereby, and except with respect to the matters covered by Section 1.5, or for the obligations of Parent under Section 8.2 (and under Article IX), Parent shall have no liability to Buyer or its Affiliates under, relating to or in connection with this Agreement or the transactions contemplated hereby; provided, however, that nothing in this Section 8.7 limits or modifies any rights of either party to seek specific performance or specific enforcement of, or other injunctive or equitable relief in respect of, any express provision of this Agreement.
(b) In the event that an Indemnifying Party is obligated to indemnify an Indemnified Party pursuant to this Article VIII, the Indemnifying Party will, upon payment of such indemnity, be subrogated to all rights of the Indemnified Party with respect to claims to which such indemnification relates.
(c) Notwithstanding anything to the contrary herein, (i) other than with respect to the survival of the representations or warranties set forth in Section 2.7, this Article VIII shall have no application with respect to indemnification for Taxes, which shall otherwise be covered exclusively by Sections 9.1 and 9.2 and (ii) nothing in this Article VIII shall limit the rights or remedies of any Person under this Agreement based upon or in connection with fraud, intentional misrepresentation or willful misconduct.
Further Limitations on Indemnification. Notwithstanding the foregoing provisions of this Section 7, the right to indemnification under this Section 7 shall be subject to the following:
(a) No Indemnifying Party shall have liability under Section 7.3 except to the extent that Damages exceed $100,000 in the aggregate, in which event the Indemnifying Party shall be liable for all Damages.
(b) No Indemnifying Party shall have liability under Section 7.3 in excess of the liquidation preference of the Parent Series A Preferred Stock originally issued to such Indemnifying Party pursuant to Section 1.6(a).
(c) No indemnification shall be payable pursuant to Section 7.3 after the Expiration Date, except (i) for claims for Damages made prior to the Expiration Date but not then resolved, or (ii) for claims for Damages made with respect to an inaccuracy or breach of any representation or warranty contained in Section 2.9, which representation and warranty shall survive until the expiration of the applicable statute of limitations, or Sections 2.3, which representations and warranties shall survive indefinitely in all cases, without giving effect to any limitation or qualification as to knowledge, Material Adverse Effect or other materiality limitation or qualification.
(d) The limitations of Sections 7.1, 7.2 and 7.5(a) and (b) shall not apply to any claim for Damages that are determined by a court of competent jurisdiction, in a proceeding from which no further appeal is permitted to be taken, to have been primarily caused by fraud or intentional misrepresentation or intentional breach of such Indemnifying Party.
(e) In determining the amount of any indemnity under Section 7.3, the Damages shall be reduced (including, without limitation, retroactively) by any insurance proceeds, tax benefit or other similar recovery or offset realized, directly or indirectly, by the Indemnified Party actually recovered by or on behalf of such Indemnified Party in reduction of the loss giving rise to the claim for Damages.
(f) In the event an Indemnifying Party fails to satisfy an indemnification payable pursuant to Section 7.3 within 30 days after the final amount of Damages have been determined and after all other provisions of this Section 7 have been satisfied, then the Indemnifying Party shall surrender to Parent for cancellation that number of shares of Parent Preferred Stock with a redemption value equal to the amount of the indemnification obligation.
Further Limitations on Indemnification. In addition to the limitations on Indemnification set forth in Section 1(b) above, the Company shall not be obligated pursuant to this Agreement:
Further Limitations on Indemnification. 54 10.8 Issuance of Parent Indemnity Shares to Satisfy Claims for Damages. . . . . . . . . 55
Further Limitations on Indemnification. Notwithstanding the foregoing, the right to indemnication under this Section 10 shall be subject to the following:
(a) No Indemnifying Party shall have liability under Section 10.3 or Section 10.4 except to the extent that the Damages exceed $50,000 in the aggregate, in which event the Indemnifying Party shall be liable for all Damages, subject to the provisions of this Section 10.
(b) No indemnification shall be payable pursuant to Sections 10.3 or 10.4, as the case may be, after the Expiration Date, except (i) for claims for Damages made prior to the
Further Limitations on Indemnification. (a) The rights of the parties under Section 4.25 and Article VIII and Article IX will be the exclusive remedy of the parties with respect to breaches of representations, warranties, covenants or agreements contained in or made pursuant to this Agreement.
(b) Buyer, on behalf of itself and its Affiliates (and from and after the Closing, the Transferred Companies) and their respective shareholders, managers, officers, directors, employees and agents), hereby to the maximum extent permitted by applicable Law waives and releases Seller and its Affiliates (and their respective shareholders, managers, officers, directors, employees and agents) from any statutory or other rights of contribution or indemnity (except as set forth in Sections 1.5 or 4.25, this Article VIII and Article IX and claims or causes of action arising from fraud and claims or causes of action with respect to any breach of any covenant or agreement to be performed after the Closing) with respect to Seller’s ownership of the Shares or control or operation of, or otherwise relating to, the Transferred Companies and the Business. Buyer consents to the execution by the Transferred Companies prior to or at the Closing of an instrument by which they agree to be bound by the provisions of (and in any event waive and release those matters specified in) this Section 8.7(b) to the maximum extent permitted by applicable Law.
(c) Each Rockwood Seller, effective upon the Closing, hereby fully, finally and forever releases, discharges and covenants not to xxx and otherwise agrees not to enforce any claim, cause of action, right, title or interest against, any Transferred Company and each director, officer and employee of each Transferred Company and their respective successors and permitted assigns (collectively, the “Released Persons”), of, from and with respect to any and all claims, debts, covenants, agreements, obligations, Liabilities, actions or demands of any kind or character, based upon any fact or circumstance, whether known or unknown, suspected or unsuspected, which presently exists or has ever existed in the past, that such Rockwood Sellers have or may have in any manner whatsoever, either singly or jointly with others against any of the Released Persons; provided, however, that the Rockwood Sellers are not releasing any claims related to the enforcement of this Agreement or accounts payable included in the calculation of Closing Working Capital.
(d) In the event that an Indemnifying Party is ...
Further Limitations on Indemnification. (i) Each addition to the asset portion of the Company's balance sheet that corresponds to a liability, obligation, cost or expense to be indemnified by Seller hereunder shall be taken into account as an offset to such corresponding liability, obligation, cost or expense for purposes of determining Seller's indemnification liability with respect to such liability, obligation, cost and expense, to the extent such asset addition did not appear on the Latest Balance Sheet or Closing Balance Sheet (i.e., if a liability under a capital lease is to be indemnified by Seller hereunder, the corresponding asset under such capital lease shall also be taken into account for purposes of determining Seller's indemnification liability, but only to the extent of such liability).
(ii) No breach of Seller's and the Company's representations and warranties and no claim for adjustment of the Purchase Price shall be asserted by Buyer based upon any change in the accounting methods set forth on the Accounting Schedule.
(iii) No breach of the representations and warranties and no claim for adjustment of the Purchase Price shall be asserted that results from the creation of any new or additional reserve fund(s) with respect to accrual of liabilities for future or contingent claims or otherwise unless the Company had knowledge of a specific claim.
(iv) Notwithstanding any provision herein to the contrary, any Loss for which an Indemnitor claims indemnification under this Section 8.2 shall take into account (A) the proceeds of any insurance actually received by the Indemnitee with respect to such Loss less any increase in premiums to such Person as a result of such claim for insurance proceeds (the "INSURANCE RECOVERY AMOUNT"), (B) the amount of any reduction in Tax that (1) is actually realized by a reduction of Taxes actually paid or by a refund actually received by the Indemnitee, and (2) is attributable to any deduction, loss, credit or other Tax benefit arising from or arising out of such Loss (the "TAX REDUCTION AMOUNT"). Any indemnification payment under this Section 8.2 shall initially be made without regard to clauses (A) and (B) of this Section 8.2(b)(v) and the Indemnitee shall remit to the Indemnitor the Tax Reduction Amount or the Insurance Recovery Amount, as the case may be, when the Indemnitee actually realizes the Tax Reduction Amount or actually receives the Insurance Recovery Amount, as the case may be.
Further Limitations on Indemnification. Notwithstanding the foregoing, the right to indemnification under this Section 7 shall be subject to the following: (a) No Target Stockholder shall have liability under Section 7.2 except to the extent that the Damages exceed $400,000 in the aggregate for all Target Stockholders, in which event Target Stockholders shall be liable only to the extent the aggregate Damages exceed $400,000, subject to the provisions of this Section 7.
Further Limitations on Indemnification. 55 10.7 Stockholders' Agent............................................................ 56 10.8 Actions of the Stockholders' Agent............................................. 56
Further Limitations on Indemnification. Notwithstanding the foregoing, the right to indemnification under this Section 10 shall be subject to the following:
(a) No Indemnifying Party shall have liability under Section 10.3 or Section 10.4 except to the extent that the Damages exceed $50,000 in the aggregate, in which event the Indemnifying Party shall be liable for all Damages.
(b) No indemnification shall be payable pursuant to Sections 10.3 or 10.4, as the case may be, after the Expiration Date, except for claims for Damages made prior to the Expiration Date but not then resolved.
(c) Parent shall be entitled to offset the amount of any Damages incurred by Parent pursuant to Section 10.3. Any such offset for Damages under this Section 10.6(c) shall be effected by the cancellation of that number of Merger Shares in the Escrow Fund. For purposes of determining the number of Merger Shares to be delivered to Parent out of the Escrow Fund, the Merger Shares will be valued at $7.50 per share (as adjusted for stock splits, combinations, recapitalizations or similar events).
(d) The limitations of Sections 10.1, 10.2 and 10.6(a) shall not apply to any claim for Damages that are determined by a court of competent jurisdiction in a proceeding from which no further appeal is permitted to be taken to have been primarily caused by fraud or intentional misrepresentation or intentional breach of any party.
(e) In determining the amount of any indemnity under Section 10.3 or 10.4, the Damages shall be reduced (including, without limitation, retroactively) by any insurance proceeds, tax benefit or other similar recovery or offset realized, directly or indirectly, by the
