Common use of Indemnification by Medicis Clause in Contracts

Indemnification by Medicis. (a) From and after the Effective Time, Medicis shall hold harmless and indemnify each of the BioMarin Indemnitees from and against, and shall compensate and reimburse each of the BioMarin Indemnitees for, any Damages that are suffered or incurred by any of the BioMarin Indemnitees or to which any of the BioMarin 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 or as a result of: (i) any Breach of any of the representations or warranties made by Medicis or Ascent 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 Medicis or Ascent contained in this Agreement, 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 the Pediatrics Business prior to the Effective Time; (iv) any Excluded Liability; or (v) any Proceeding relating directly or indirectly to any Breach, Liability or Third-Party Claim of the type referred to in clause (i) through (iv) above (including any Proceeding commenced by any BioMarin Indemnitee for the purpose of enforcing any of its rights under this Section 9.2). (b) Subject to Section 9.2(d), Medicis shall not be required to make any indemnification payment pursuant to Section 9.2(a)(i) of this Agreement, Section 8.2(a)(i) of the Securities Purchase Agreement or Section 12.2(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 any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the BioMarin Indemnitees, or to which any one or more of the BioMarin Indemnitees has or 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 9.2(d), the aggregate liability for any indemnification payments pursuant to Section 9.2(a)(i) of this Agreement, Section 8.2(a)(i) of the Securities Purchase Agreement and Section 12.2(a)(i) of the License Agreement, will be limited to, and shall not exceed, in the aggregate, $66.5 million (the “Medicis Cap”); provided, however, that the Medicis Cap shall not apply to any indemnification obligation of Medicis arising out of any Breach of Section 2.2 or 2.6. (d) The limitations on the indemnification obligations of Medicis set forth in each of Section 9.2(b) and Section 9.2(c) shall not apply to any willful Breach, intentional misrepresentation or fraud by Medicis or Ascent. (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 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 Medicis. (a) From and after the Effective TimeDate, Medicis shall hold harmless and indemnify each of the BioMarin Indemnitees from and against, and shall compensate and reimburse each of the BioMarin Indemnitees for, any Damages that are suffered or incurred by any of the BioMarin Indemnitees or to which any of the BioMarin Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any Third-Third Party Claim) and that arise from or as a result offrom: (i) any Breach of any of the representations or warranties made by Medicis or Ascent 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 Medicis or Ascent contained in this Agreement, the assignment documents described in Section 1.5(b)(i) or the Assumption Agreement; (iii) any Third Party Claim arising from Liability of Ascent at the conduct or operation of the Pediatrics Business prior Option Closing, other than any Liability for which BioMarin has indemnified Medicis pursuant to the Effective Time;Section 8.3(a)(iii) below; and (iv) any Excluded Liability; or (v) any Proceeding relating directly or indirectly to any Breach, Breach or Liability or Third-Party Claim of the type referred to in clause clauses "(i) )" through "(iv) iii)" above (including any Proceeding commenced by any BioMarin Indemnitee for the purpose of enforcing any of its rights under this Section 9.28.2). (b) Subject to Section 9.2(d8.2(d), Medicis shall not be required to make any indemnification payment pursuant to Section 9.2(a)(iSections 8.2(a)(i) of this Agreement, Section 8.2(a)(i9.2(a)(i) of the Securities Asset Purchase Agreement or and Section 12.2(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 any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the BioMarin Indemnitees, or to which any one or more of the BioMarin Indemnitees has or 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 9.2(d8.2(d), the aggregate liability for any indemnification payments pursuant to Section 9.2(a)(i8.2(a)(i) of this Agreement, Section 8.2(a)(i9.2(a)(i) of the Securities Asset Purchase Agreement and Section 12.2(a)(i) of the License Agreement, will be limited to, and shall not exceed, in the aggregate, $66.5 million (the “Medicis Cap”"MEDICIS CAP"); provided, however, that the Medicis Cap shall not apply to any indemnification obligation of Medicis arising out of any Breach of Section 2.2 2.3, 2.6 or 2.62.7. (d) The limitations on the indemnification obligations of Medicis set forth in each of Section 9.2(b8.2(b) and Section 9.2(c8.2(c) shall not apply to any willful Breach, intentional misrepresentation or fraud by Medicis or Ascent. (e) The indemnification obligations of Medicis set forth in this Section 8.2 shall be without any right of Medicis or any of its Affiliates to any contribution from, or recourse against, Ascent. Medicis, on behalf of itself and each of its Affiliates, hereby completely releases and covenants not to ▇▇▇ Ascent and BioMarin and BioMarin Acquisition and their respective Affiliates, in their capacity as direct or indirect owners of Ascent, from or with respect to any and all Liabilities arising from or in connection with any Damages for which Medicis is obligated to indemnify under this Section 8.2. (f) 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 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 Medicis. (a) From and after the Effective Time, Medicis shall hold harmless and indemnify each of the BioMarin Indemnitees from and against, and shall compensate and reimburse each of the BioMarin Indemnitees for, any Damages that are suffered or incurred by any of the BioMarin Indemnitees or to which any of the BioMarin 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 or as a result of: (i) any Breach of any of the representations or warranties made by Medicis or Ascent 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 Medicis or Ascent contained in this Agreement, 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 the Pediatrics Business prior to the Effective Time; (iv) any Excluded Liability; or (v) any Proceeding relating directly or indirectly to any Breach, Liability or Third-Party Claim of the type referred to in clause (i) through (iv) above (including any Proceeding commenced by any BioMarin Indemnitee for the purpose of enforcing any of its rights under this Section 9.2). (b) Subject to Section 9.2(d), Medicis shall not be required to make any indemnification payment pursuant to Section 9.2(a)(i) of this Agreement, Section 8.2(a)(i) of the Securities Purchase Agreement or Section 12.2(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 any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the BioMarin Indemnitees, or to which any one or more of the BioMarin Indemnitees has or 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 9.2(d), the aggregate liability for any indemnification payments pursuant to Section 9.2(a)(i) of this Agreement, Section 8.2(a)(i) of the Securities Purchase Agreement and Section 12.2(a)(i) of the License Agreement, will be limited to, and shall not exceed, in the aggregate, $66.5 million (the “Medicis Cap”"MEDICIS CAP"); provided, however, that the Medicis Cap shall not apply to any indemnification obligation of Medicis arising out of any Breach of Section 2.2 or 2.6. (d) The limitations on the indemnification obligations of Medicis set forth in each of Section 9.2(b) and Section 9.2(c) shall not apply to any willful Breach, intentional misrepresentation or fraud by Medicis or Ascent. (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 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 Medicis. (a) From and after the Effective Time, Medicis shall indemnify, defend and hold harmless Anacor and indemnify each of the BioMarin Indemnitees its Affiliates, and its or their respective directors, officers, employees and agents, from and againstagainst any and all liabilities, damages, losses, costs and shall compensate expenses, including the reasonable fees of attorneys and reimburse each other professionals (collectively, “Losses”), arising out of or resulting from any and all Third Party suits, claims, actions, proceedings or demands (“Claims”) based upon: [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. 11.1.1 the BioMarin Indemnitees fornegligence, any Damages that are suffered recklessness or incurred by any of the BioMarin Indemnitees wrongful intentional acts or to which any of the BioMarin 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 or as a result of: (i) any Breach of any of the representations or warranties made by Medicis or Ascent 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 omissions of Medicis or Ascent contained its Affiliates and its or their respective directors, officers, employees and agents, in this Agreement, the assignment documents described in Section 1.5(b)(i) connection with Medicis’s performance of its obligations or the Assumption Agreement; (iii) any Third Party Claim arising from the conduct or operation of the Pediatrics Business prior to the Effective Time; (iv) any Excluded Liability; or (v) any Proceeding relating directly or indirectly to any Breach, Liability or Third-Party Claim of the type referred to in clause (i) through (iv) above (including any Proceeding commenced by any BioMarin Indemnitee for the purpose of enforcing any exercise of its rights under this Section 9.2).Agreement; 11.1.2 any breach of any representation or warranty or express covenant made by Medicis under Article 10 or any other provision under this Agreement; or 11.1.3 the Development that is actually conducted by or on behalf of Medicis (b) Subject to Section 9.2(dexcluding any Development carried out by Anacor hereunder), the handling and storage by or on behalf of Medicis shall not be required to make any indemnification payment pursuant to Section 9.2(a)(i) of this Agreement, Section 8.2(a)(i) of the Securities Purchase Agreement or Section 12.2(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 any representations chemical agents or warranties) other compounds for the purpose of conducting Development by or on behalf of Medicis, and the manufacture, marketing, commercialization and sale by Medicis, its Affiliate or Sublicensees of any Medicis Development Compound or Derivative thereof or Product, including Third Party Claims that have been directly any such activity infringes, misappropriates or indirectly suffered otherwise violates such Third Party’s intellectual property or incurred by any one or more of the BioMarin Indemniteesother proprietary rights, or to which any one or more of the BioMarin Indemnitees has or have otherwise become subject, exceeds, in the aggregate, $250,000 and then but only to the extent of such excess.Third Party Claims do not arise from or involve an allegation that an Anacor Compound as introduced into the Program by Anacor infringes, misappropriates or otherwise violates such Third Party’s intellectual property or other proprietary rights; (c) Notwithstanding anything 11.1.4 except, in this Agreement each case 11.1.1 – 11.1.3 above, to the contrary, but subject to Section 9.2(d), the aggregate liability for any indemnification payments pursuant to Section 9.2(a)(i) of this Agreement, Section 8.2(a)(i) of the Securities Purchase Agreement and Section 12.2(a)(i) of the License Agreement, will be limited to, and shall not exceed, in the aggregate, $66.5 million (the “Medicis Cap”); provided, however, that the Medicis Cap shall not apply to any indemnification obligation of Medicis arising extent such Claim arose out of any Breach of Section 2.2 or 2.6. (d) The limitations on the indemnification obligations of Medicis set forth in each of Section 9.2(b) and Section 9.2(c) shall not apply to any willful Breach, intentional misrepresentation resulted from or fraud by Medicis or Ascent. (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 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 is attributable to the right negligence, recklessness or wrongful intentional acts or omissions of indemnificationAnacor or its Affiliates, regardless of whether the actionsor their respective directors, failures to act officers, employees 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 agreementsagents.

Indemnification by Medicis. (a) From and after the Effective Time, Medicis shall indemnify, defend and hold harmless Q-Med, its Affiliates and indemnify each of their respective directors, officers, stockholders, employees, agents and representatives (the BioMarin Indemnitees "Q-MED INDEMNIFIED PARTIES"), from and against, and shall compensate and reimburse each against any Losses that they may incur resulting from any Action to the extent arising out of the BioMarin Indemnitees for, any Damages that are suffered or incurred by any of the BioMarin Indemnitees or due to which any of the BioMarin 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 or as a result of: (i) any Breach breach of any of the representations representation, warranty, covenant or warranties made other agreement under this Agreement by Medicis or Ascent in any of its Affiliates to the extent such Affiliate is bound under this Agreement, the assignment documents described in Section 1.5(b)(i) Agreement or the Assumption Agreement; (ii) any Breach with respect to obtaining Regulatory Approvals for the first of any covenant the Licensed Products in accordance with Section 6.3(b)(iii) hereof, clinical trials conducted by or obligation on behalf of Medicis or Ascent contained other services performed by or on behalf of Q-Med in this Agreementaccordance with Section 6.3(b)(iii) hereof, the assignment documents described except (x) as otherwise provided in Section 1.5(b)(i9.1(a) or hereof, and (y) to the Assumption Agreement; (iii) any Third Party Claim extent arising from the conduct Q-Med's own negligence or operation of the Pediatrics Business prior to the Effective Time; (iv) any Excluded Liability; or (v) any Proceeding relating directly or indirectly to any Breach, Liability or Third-Party Claim of the type referred to in clause (i) through (iv) above (including any Proceeding commenced by any BioMarin Indemnitee for the purpose of enforcing any of its rights under this Section 9.2)willful misconduct. (b) Subject Notwithstanding anything to Section 9.2(d)the contrary contained herein, Medicis (i) Losses shall not be required to make any indemnification payment include loss of profits or consequential damages unless a final arbitral award is issued pursuant to Section 9.2(a)(i12.6 determining that the breach by Medicis giving rise to such Losses was an intentional and willful breach of a material obligation under this Agreement and (ii) after the consummation of a Transfer to a Third Party in accordance with Section 12.2, with respect to any final arbitral award pursuant to Section 12.6 that determines that such Third Party has intentionally and willfully breached any of its material obligations under this Agreement, Section 8.2(a)(i) Losses arising out of or due to such intentional and willful breach of a material obligation under this Agreement shall be deemed to include loss of profits, consequential damages and such other damages, fees, penalties, deficiencies, losses and expenses as the Securities Purchase Agreement or Section 12.2(a)(i) of the License Agreement, until arbitral tribunal making 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 any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the BioMarin Indemnitees, or to which any one or more of the BioMarin Indemnitees has or have otherwise become subject, exceeds, in the aggregate, $250,000 and then only to the extent of such excessaward may determine. (c) Notwithstanding anything in Medicis and its Affiliates shall have no liability under this Agreement Section 9.2 to the contrary, but subject to Section 9.2(d), the aggregate liability for any indemnification payments pursuant to Section 9.2(a)(i) of this Agreement, Section 8.2(a)(i) of the Securities Purchase Agreement and Section 12.2(a)(i) of the License Agreement, will be limited to, and shall not exceed, in the aggregate, $66.5 million (the “Medicis Cap”); provided, however, that the Medicis Cap shall not apply to any indemnification obligation of Medicis arising out of any Breach of Section 2.2 or 2.6. (d) The limitations on the indemnification obligations of Medicis set forth in each of Section 9.2(b) and Section 9.2(c) shall not apply to any willful Breach, intentional misrepresentation or fraud by Medicis or Ascent. (e) To the extent that actions or failures a Q-Med Indemnified Party has been paid pursuant 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 License Agreement and/or for an indemnifiable claim involving 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 agreementsidentical substantive issue.

Indemnification by Medicis. (a) From and after the Effective TimeDate, Medicis shall hold harmless and indemnify each of the BioMarin Indemnitees from and against, and shall compensate and reimburse each of the BioMarin Indemnitees for, any Damages that are suffered or incurred by any of the BioMarin Indemnitees or to which any of the BioMarin Indemnitees may otherwise become subject at any time (regardless of whether or not such Damages relate to any Third-Third Party Claim) and that arise from or as a result offrom: (i) any Breach of any of the representations or warranties made by Medicis or Ascent 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 Medicis or Ascent contained in this Agreement, the assignment documents described in Section 1.5(b)(i) or the Assumption Agreement; (iii) any Third Party Claim arising from Liability of Ascent at the conduct or operation of the Pediatrics Business prior Option Closing, other than any Liability for which BioMarin has indemnified Medicis pursuant to the Effective Time;Section 8.3(a)(iii) below; and (iv) any Excluded Liability; or (v) any Proceeding relating directly or indirectly to any Breach, Breach or Liability or Third-Party Claim of the type referred to in clause clauses “(i) )” through “(iv) iii)” above (including any Proceeding commenced by any BioMarin Indemnitee for the purpose of enforcing any of its rights under this Section 9.28.2). (b) Subject to Section 9.2(d8.2(d), Medicis shall not be required to make any indemnification payment pursuant to Section 9.2(a)(iSections 8.2(a)(i) of this Agreement, Section 8.2(a)(i9.2(a)(i) of the Securities Asset Purchase Agreement or and Section 12.2(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 any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the BioMarin Indemnitees, or to which any one or more of the BioMarin Indemnitees has or 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 9.2(d8.2(d), the aggregate liability for any indemnification payments pursuant to Section 9.2(a)(i8.2(a)(i) of this Agreement, Section 8.2(a)(i9.2(a)(i) of the Securities Asset Purchase Agreement and Section 12.2(a)(i) of the License Agreement, will be limited to, and shall not exceed, in the aggregate, $66.5 million (the “Medicis Cap”); provided, however, that the Medicis Cap shall not apply to any indemnification obligation of Medicis arising out of any Breach of Section 2.2 2.3, 2.6 or 2.62.7. (d) The limitations on the indemnification obligations of Medicis set forth in each of Section 9.2(b8.2(b) and Section 9.2(c8.2(c) shall not apply to any willful Breach, intentional misrepresentation or fraud by Medicis or Ascent. (e) The indemnification obligations of Medicis set forth in this Section 8.2 shall be without any right of Medicis or any of its Affiliates to any contribution from, or recourse against, Ascent. Medicis, on behalf of itself and each of its Affiliates, hereby completely releases and covenants not to ▇▇▇ Ascent and BioMarin and BioMarin Acquisition and their respective Affiliates, in their capacity as direct or indirect owners of Ascent, from or with respect to any and all Liabilities arising from or in connection with any Damages for which Medicis is obligated to indemnify under this Section 8.2. (f) 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 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.