Common use of Indemnification by BioMarin Clause in Contracts

Indemnification by BioMarin. (a) From and after the Effective Date, BioMarin shall hold harmless and indemnify the Ascent Indemnitees from and against, and shall compensate and reimburse each of the Ascent Indemnitees for, any Damages that are suffered or incurred by the Ascent Indemnitees or to which the Ascent Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any Third Party Claim) and that arise from: (i) any Breach of any representation or warranty made by BioMarin or BioMarin Acquisition in this Agreement; (ii) any Breach of any covenant or obligation of BioMarin or BioMarin Acquisition in this Agreement; and (iii) any Third Party Claim arising from the conduct or operation of making, manufacturing, marketing, selling, distributing, importing, exporting and developing of the Licensed Products following the Effective Date, except Damages suffered or incurred or arising from the Breach of Medicis, Ascent or Medicis Manufacturing, as applicable, under this Agreement, the Supply Agreement, or the Transition Services Agreement; (iv) any Proceeding relating directly or indirectly to any Breach, Liability or Third Party Claim of the type referred to in clauses "(i)" through "(iii)" above (including any Proceeding commenced by any Ascent Indemnitee for the purpose of enforcing its rights under this Section 12.3). (b) Subject to Section 12.3(d), BioMarin shall not be required to make any indemnification payment pursuant to Section 12.3(a)(i) of this Agreement, Section 9.3(a)(i) of the Asset Purchase Agreement or Section 8.3(a)(i) of the Securities Purchase Agreement until such time as and to the extent that the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of its representations or warranties) that have been directly or indirectly suffered or incurred by the Ascent Indemnitees, or to which the Ascent Indemnitees have otherwise become subject, exceeds, in the aggregate, $250,000 and then only to the extent of such excess. (c) Notwithstanding anything in this Agreement to the contrary, but subject to Section 12.3(d), the aggregate liability for any indemnification payments pursuant to Section 12.3(a)(i) of this Agreement, Section 9.3(a)(i) of the Asset Purchase Agreement and Section 8.3(a)(i) of the Securities Purchase Agreement, will be limited to, and shall not exceed, in the aggregate, $66.5 million (the "BIOMARIN CAP"), provided, however, that the BioMarin Cap shall not apply to any indemnification obligation of BioMarin arising out of any Breach of Section 8.1. (d) The limitation on the indemnification obligations of BioMarin that is set forth in Section 12.3(b) and Section 12.3(c) shall not apply to (i) any failure by BioMarin Acquisition to make any payment pursuant to Section 4.1, or (ii) any willful Breach, intentional misrepresentation or fraud by BioMarin or BioMarin Acquisition. (e) To the extent that actions or failures to act or other circumstances result in a Breach of a representation, warranty or covenant or other triggering event giving rise to a right of indemnification to a party under this Agreement, the Asset Purchase Agreement and/or the Securities Purchase Agreement, such party shall be entitled to only one recovery of the Damages resulting from such actions, failures to act or other circumstances giving rise to the right of indemnification, regardless of whether the actions, failures to act or other circumstances giving rise to the right of indemnification constitute a breach of more than one agreement. The parties acknowledge that the purpose of this provision is to prevent duplicative recovery for the same Damages, and not to preclude the recovery of Damages for separate and independent indemnity claims that may arise under the various agreements.

Indemnification by BioMarin. (a) From and after the Effective Date, BioMarin shall hold harmless and indemnify the Ascent Medicis Indemnitees from and against, and shall compensate and reimburse each of the Ascent Medicis Indemnitees for, any Damages that are suffered or incurred by any of the Ascent Medicis Indemnitees or to which any of the Ascent Medicis Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any Third Party Claim) and that arise from: (i) any Breach of any representation or warranty made by BioMarin or BioMarin Acquisition in this Agreement; (ii) any Breach of any covenant or obligation of BioMarin or BioMarin Acquisition contained in this Agreement; and; (iii) any Third Party Claim arising from the conduct or operation of making, manufacturing, marketing, selling, distributing, importing, exporting and developing of the Licensed Products following the Effective Date, except Damages suffered or incurred or arising from the Breach of Medicis, Ascent or Medicis Manufacturing, as applicable, under this Agreement, the Supply Agreement, or the Transition Services Agreement or the License Agreement; (iv) any Proceeding relating directly or indirectly to any Breach, Liability or Third Party Claim of the type referred to in clauses "(i)" through "(iii)" above (including any Proceeding commenced by any Ascent Medicis Indemnitee for the purpose of enforcing its rights under this Section 12.38.3). (b) Subject to Section 12.3(d8.3(d), BioMarin shall not be required to make any indemnification payment pursuant to Section 12.3(a)(i8.3(a)(i) of this Agreement, Section 9.3(a)(i) of the Asset Purchase Agreement or and Section 8.3(a)(i12.3(a)(i) of the Securities Purchase Agreement License Agreement, until such time as and to the extent that the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of its any representations or warranties) that have been directly or indirectly suffered or incurred by the Ascent IndemniteesMedicis Indemnitees or Ascent, or to which the Medicis Indemnitees or Ascent Indemnitees have otherwise become subject, exceeds, in the aggregate, $250,000 and then only to the extent of such excess. (c) Notwithstanding anything in this Agreement to the contrary, but subject to Section 12.3(d8.3(d), the aggregate liability for any indemnification payments pursuant to Section 12.3(a)(i8.3(a)(i) of this Agreement, Section 9.3(a)(i) of the Asset Purchase Agreement and Section 8.3(a)(i12.3(a)(i) of the Securities Purchase License Agreement, will be limited to, and shall not exceed, in the aggregate, $66.5 million (the "BIOMARIN CAP"), ; provided, however, that the BioMarin Cap shall not apply to any indemnification obligation of BioMarin arising out of any Breach of Section 8.13.3. (d) The limitation on the indemnification obligations of BioMarin that is set forth in Section 12.3(b8.3(b) and Section 12.3(c8.3(c) shall not apply to (i) any failure by BioMarin Acquisition to make any payment pursuant to Section 4.11.4(b), or (ii) any willful Breach, intentional misrepresentation or fraud by BioMarin or BioMarin Acquisition. (e) To the extent that actions or failures to act or other circumstances result in a Breach of a representation, warranty or covenant or other triggering event giving rise to a right of indemnification to a party under this Agreement, the Asset Purchase License Agreement and/or the Securities Asset Purchase Agreement, such party shall be entitled to only one recovery of the Damages resulting from such actions, failures to act or other circumstances giving rise to the right of indemnification, regardless of whether the actions, failures to act or other circumstances giving rise to the right of indemnification constitute a breach of more than one agreement. The parties acknowledge that the purpose of this provision is to prevent duplicative recovery for the same Damages, and not to preclude the recovery of Damages for separate and independent indemnity claims that may arise under the various agreements.

Indemnification by BioMarin. (a) From and after the Effective DateTime, BioMarin shall hold harmless and indemnify the Ascent Medicis Indemnitees from and against, and shall compensate and reimburse each of the Ascent Medicis Indemnitees for, any Damages that are suffered or incurred by any of the Ascent Medicis Indemnitees or to which any of the Ascent Medicis Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any Third Party Claim) and that arise from: (i) any Breach of any representation or warranty made by BioMarin or BioMarin Acquisition in this Agreement, the assignment documents described in Section 1.5(b)(i) or the Assumption Agreement; (ii) any Breach of any covenant or obligation of BioMarin or BioMarin Acquisition in this Agreement; and, the assignment documents described in Section 1.5(b)(i) or the Assumption Agreement; (iii) any Third Party Claim arising from the conduct or operation of making, manufacturing, marketing, selling, distributing, importing, exporting and developing of the Licensed Products following the Effective DateTime, except Damages suffered or incurred or arising from the Breach of Medicis, Ascent or Medicis Manufacturing, as applicable, under this Agreement, the Supply Agreement, or the Transition Services Agreement or the License Agreement; (iv) any Assumed Liability; or (v) any Proceeding relating directly or indirectly to any Breach, Liability or Third Third-Party Claim of the type referred to in clauses "(i)" ) through "(iii)" iv) above (including any Proceeding commenced by any Ascent Medicis Indemnitee for the purpose of enforcing its rights under this Section 12.39.3). (b) Subject to Section 12.3(d9.3(d), BioMarin shall not be required to make any indemnification payment pursuant to Section 12.3(a)(i9.3(a)(i) of this Agreement, Section 9.3(a)(i) of the Asset Purchase Agreement or Section 8.3(a)(i) of the Securities Purchase Agreement or Section 12.3(a)(i) of the License Agreement, until such time as and to the extent that the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of its representations or warranties) that have been directly or indirectly suffered or incurred by the Ascent Medicis Indemnitees, or to which the Ascent Medicis Indemnitees have otherwise become subject, exceeds, in the aggregate, $250,000 and then only to the extent of such excess. (c) Notwithstanding anything in this Agreement to the contrary, but subject to Section 12.3(d9.3(d), the aggregate liability for any indemnification payments pursuant to Section 12.3(a)(i9.3(a)(i) of this Agreement, Section 9.3(a)(i) of the Asset Purchase Agreement and Section 8.3(a)(i) of the Securities Purchase Agreement and Section 12.3(a)(i) of the License Agreement, will be limited to, and shall not exceed, in the aggregate, $66.5 million (the "BIOMARIN CAP"), ; provided, however, that the BioMarin Cap shall not apply to any indemnification obligation of BioMarin arising out of any Breach of Section 8.13.2. (d) The limitation limitations on the indemnification obligations of BioMarin that is set forth in each of Section 12.3(b9.3(b) and Section 12.3(c9.3(c) shall not apply to (i) any failure by BioMarin Acquisition to make any payment pursuant to Section 4.1, or (ii) any willful Breach, intentional misrepresentation or fraud by BioMarin or BioMarin Acquisition. (e) To the extent that any actions or failures to act or other circumstances result in a Breach of a representation, warranty or covenant or other triggering event giving rise to a right of indemnification to a party under this Agreement, the Asset Purchase License Agreement and/or the Securities Purchase Agreement, such party shall be entitled to only one recovery of the Damages resulting from such actions, failures to act or other circumstances giving rise to the right of indemnification, regardless of whether the actions, failures to act or other circumstances giving rise to the right of indemnification constitute a breach of more than one agreement. The parties acknowledge that the purpose of this provision is to prevent duplicative recovery for the same Damages, and not to preclude the recovery of Damages for separate and independent indemnity claims that may arise under the various agreements.

Indemnification by BioMarin. (a) From and after the Effective Date, BioMarin shall hold harmless and indemnify the Ascent Indemnitees from and against, and shall compensate and reimburse each of the Ascent Indemnitees for, any Damages that are suffered or incurred by the Ascent Indemnitees or to which the Ascent Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any Third Party Claim) and that arise from: (i) any Breach of any representation or warranty made by BioMarin or BioMarin Acquisition in this Agreement; (ii) any Breach of any covenant or obligation of BioMarin or BioMarin Acquisition in this Agreement; and (iii) any Third Party Claim arising from the conduct or operation of making, manufacturing, marketing, selling, distributing, importing, exporting and developing of the Licensed Products following the Effective Date, except Damages suffered or incurred or arising from the Breach of Medicis, Ascent or Medicis Manufacturing, as applicable, under this Agreement, the Supply Agreement, or the Transition Services Agreement; (iv) any Proceeding relating directly or indirectly to any Breach, Liability or Third Party Claim of the type referred to in clauses "“(i)" ” through "“(iii)" ” above (including any Proceeding commenced by any Ascent Indemnitee for the purpose of enforcing its rights under this Section 12.3). (b) Subject to Section 12.3(d), BioMarin shall not be required to make any indemnification payment pursuant to Section 12.3(a)(i) of this Agreement, Section 9.3(a)(i) of the Asset Purchase Agreement or Section 8.3(a)(i) of the Securities Purchase Agreement until such time as and to the extent that the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of its representations or warranties) that have been directly or indirectly suffered or incurred by the Ascent Indemnitees, or to which the Ascent Indemnitees have otherwise become subject, exceeds, in the aggregate, $250,000 and then only to the extent of such excess. (c) Notwithstanding anything in this Agreement to the contrary, but subject to Section 12.3(d), the aggregate liability for any indemnification payments pursuant to Section 12.3(a)(i) of this Agreement, Section 9.3(a)(i) of the Asset Purchase Agreement and Section 8.3(a)(i) of the Securities Purchase Agreement, will be limited to, and shall not exceed, in the aggregate, $66.5 million (the "BIOMARIN CAP"“BioMarin Cap”), provided, however, that the BioMarin Cap shall not apply to any indemnification obligation of BioMarin arising out of any Breach of Section 8.1. (d) The limitation on the indemnification obligations of BioMarin that is set forth in Section 12.3(b) and Section 12.3(c) shall not apply to (i) any failure by BioMarin Acquisition to make any payment pursuant to Section 4.1, or (ii) any willful Breach, intentional misrepresentation or fraud by BioMarin or BioMarin Acquisition. (e) To the extent that actions or failures to act or other circumstances result in a Breach of a representation, warranty or covenant or other triggering event giving rise to a right of indemnification to a party under this Agreement, the Asset Purchase Agreement and/or the Securities Purchase Agreement, such party shall be entitled to only one recovery of the Damages resulting from such actions, failures to act or other circumstances giving rise to the right of indemnification, regardless of whether the actions, failures to act or other circumstances giving rise to the right of indemnification constitute a breach of more than one agreement. The parties acknowledge that the purpose of this provision is to prevent duplicative recovery for the same Damages, and not to preclude the recovery of Damages for separate and independent indemnity claims that may arise under the various agreements.

Indemnification by BioMarin. (a) From and after the Effective DateTime, BioMarin shall hold harmless and indemnify the Ascent Medicis Indemnitees from and against, and shall compensate and reimburse each of the Ascent Medicis Indemnitees for, any Damages that are suffered or incurred by any of the Ascent Medicis Indemnitees or to which any of the Ascent Medicis Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any Third Party Claim) and that arise from: (i) any Breach of any representation or warranty made by BioMarin or BioMarin Acquisition in this Agreement, the assignment documents described in Section 1.5(b)(i) or the Assumption Agreement; (ii) any Breach of any covenant or obligation of BioMarin or BioMarin Acquisition in this Agreement; and, the assignment documents described in Section 1.5(b)(i) or the Assumption Agreement; (iii) any Third Party Claim arising from the conduct or operation of making, manufacturing, marketing, selling, distributing, importing, exporting and developing of the Licensed Products following the Effective DateTime, except Damages suffered or incurred or arising from the Breach of Medicis, Ascent or Medicis Manufacturing, as applicable, under this Agreement, the Supply Agreement, or the Transition Services Agreement or the License Agreement; (iv) any Assumed Liability; or (v) any Proceeding relating directly or indirectly to any Breach, Liability or Third Third-Party Claim of the type referred to in clauses "(i)" ) through "(iii)" iv) above (including any Proceeding commenced by any Ascent Medicis Indemnitee for the purpose of enforcing its rights under this Section 12.39.3). (b) Subject to Section 12.3(d9.3(d), BioMarin shall not be required to make any indemnification payment pursuant to Section 12.3(a)(i9.3(a)(i) of this Agreement, Section 9.3(a)(i) of the Asset Purchase Agreement or Section 8.3(a)(i) of the Securities Purchase Agreement or Section 12.3(a)(i) of the License Agreement, until such time as and to the extent that the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of its representations or warranties) that have been directly or indirectly suffered or incurred by the Ascent Medicis Indemnitees, or to which the Ascent Medicis Indemnitees have otherwise become subject, exceeds, in the aggregate, $250,000 and then only to the extent of such excess. (c) Notwithstanding anything in this Agreement to the contrary, but subject to Section 12.3(d9.3(d), the aggregate liability for any indemnification payments pursuant to Section 12.3(a)(i9.3(a)(i) of this Agreement, Section 9.3(a)(i) of the Asset Purchase Agreement and Section 8.3(a)(i) of the Securities Purchase Agreement and Section 12.3(a)(i) of the License Agreement, will be limited to, and shall not exceed, in the aggregate, $66.5 million (the "BIOMARIN CAP"“BioMarin Cap”), ; provided, however, that the BioMarin Cap shall not apply to any indemnification obligation of BioMarin arising out of any Breach of Section 8.13.2. (d) The limitation limitations on the indemnification obligations of BioMarin that is set forth in each of Section 12.3(b9.3(b) and Section 12.3(c9.3(c) shall not apply to (i) any failure by BioMarin Acquisition to make any payment pursuant to Section 4.1, or (ii) any willful Breach, intentional misrepresentation or fraud by BioMarin or BioMarin Acquisition. (e) To the extent that any actions or failures to act or other circumstances result in a Breach of a representation, warranty or covenant or other triggering event giving rise to a right of indemnification to a party under this Agreement, the Asset Purchase License Agreement and/or the Securities Purchase Agreement, such party shall be entitled to only one recovery of the Damages resulting from such actions, failures to act or other circumstances giving rise to the right of indemnification, regardless of whether the actions, failures to act or other circumstances giving rise to the right of indemnification constitute a breach of more than one agreement. The parties acknowledge that the purpose of this provision is to prevent duplicative recovery for the same Damages, and not to preclude the recovery of Damages for separate and independent indemnity claims that may arise under the various agreements.

Indemnification by BioMarin. (a) From and after the Effective Date, BioMarin shall hold harmless and indemnify the Ascent Medicis Indemnitees from and against, and shall compensate and reimburse each of the Ascent Medicis Indemnitees for, any Damages that are suffered or incurred by any of the Ascent Medicis Indemnitees or to which any of the Ascent Medicis Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any Third Party Claim) and that arise from: (i) any Breach of any representation or warranty made by BioMarin or BioMarin Acquisition in this Agreement; (ii) any Breach of any covenant or obligation of BioMarin or BioMarin Acquisition contained in this Agreement; and; (iii) any Third Party Claim arising from the conduct or operation of making, manufacturing, marketing, selling, distributing, importing, exporting and developing of the Licensed Products following the Effective Date, except Damages suffered or incurred or arising from the Breach of Medicis, Ascent or Medicis Manufacturing, as applicable, under this Agreement, the Supply Agreement, or the Transition Services Agreement or the License Agreement; (iv) any Proceeding relating directly or indirectly to any Breach, Liability or Third Party Claim of the type referred to in clauses "“(i)" ” through "“(iii)" ” above (including any Proceeding commenced by any Ascent Medicis Indemnitee for the purpose of enforcing its rights under this Section 12.38.3). (b) Subject to Section 12.3(d8.3(d), BioMarin shall not be required to make any indemnification payment pursuant to Section 12.3(a)(i8.3(a)(i) of this Agreement, Section 9.3(a)(i) of the Asset Purchase Agreement or and Section 8.3(a)(i12.3(a)(i) of the Securities Purchase Agreement License Agreement, until such time as and to the extent that the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of its any representations or warranties) that have been directly or indirectly suffered or incurred by the Ascent IndemniteesMedicis Indemnitees or Ascent, or to which the Medicis Indemnitees or Ascent Indemnitees have otherwise become subject, exceeds, in the aggregate, $250,000 and then only to the extent of such excess. (c) Notwithstanding anything in this Agreement to the contrary, but subject to Section 12.3(d8.3(d), the aggregate liability for any indemnification payments pursuant to Section 12.3(a)(i8.3(a)(i) of this Agreement, Section 9.3(a)(i) of the Asset Purchase Agreement and Section 8.3(a)(i12.3(a)(i) of the Securities Purchase License Agreement, will be limited to, and shall not exceed, in the aggregate, $66.5 million (the "BIOMARIN CAP"“BioMarin Cap”), ; provided, however, that the BioMarin Cap shall not apply to any indemnification obligation of BioMarin arising out of any Breach of Section 8.13.3. (d) The limitation on the indemnification obligations of BioMarin that is set forth in Section 12.3(b8.3(b) and Section 12.3(c8.3(c) shall not apply to (i) any failure by BioMarin Acquisition to make any payment pursuant to Section 4.11.4(b), or (ii) any willful Breach, intentional misrepresentation or fraud by BioMarin or BioMarin Acquisition. (e) To the extent that actions or failures to act or other circumstances result in a Breach of a representation, warranty or covenant or other triggering event giving rise to a right of indemnification to a party under this Agreement, the Asset Purchase License Agreement and/or the Securities Asset Purchase Agreement, such party shall be entitled to only one recovery of the Damages resulting from such actions, failures to act or other circumstances giving rise to the right of indemnification, regardless of whether the actions, failures to act or other circumstances giving rise to the right of indemnification constitute a breach of more than one agreement. The parties acknowledge that the purpose of this provision is to prevent duplicative recovery for the same Damages, and not to preclude the recovery of Damages for separate and independent indemnity claims that may arise under the various agreements.