Common use of Indemnification by Medicis Clause in Contracts

Indemnification by Medicis. (a) From and after the Effective Date, 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 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: (i) any Breach of any of the representations or warranties made by Medicis in this Agreement; (ii) any Breach of any covenant or obligation of Medicis or Ascent contained in this Agreement; (iii) any Liability of Ascent at the Option Closing, other than any Liability for which BioMarin has indemnified Medicis pursuant to Section 8.3(a)(iii) below; and (iv) any Proceeding relating directly or indirectly to any Breach or Liability of the type referred to in clauses “(i)” through “(iii)” above (including any Proceeding commenced by any BioMarin Indemnitee for the purpose of enforcing any of its rights under this Section 8.2). (b) Subject to Section 8.2(d), Medicis shall not be required to make any indemnification payment pursuant to Sections 8.2(a)(i) of this Agreement, Section 9.2(a)(i) of the Asset Purchase Agreement 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 8.2(d), the aggregate liability for any indemnification payments pursuant to Section 8.2(a)(i) of this Agreement, Section 9.2(a)(i) of the 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 2.3, 2.6 or 2.7. (d) The limitations on the indemnification obligations of Medicis set forth in each of Section 8.2(b) and Section 8.2(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 xxx 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 Asset Purchase Agreement, such party shall be entitled to only one recovery of 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 DateTime, 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 fromfrom 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 Liability Third Party Claim arising from the conduct or operation of Ascent at the Option Closing, other than any Liability for which BioMarin has indemnified Medicis pursuant Pediatrics Business prior to Section 8.3(a)(iii) below; andthe Effective Time; (iv) any Excluded Liability; or (v) any Proceeding relating directly or indirectly to any Breach Breach, Liability or Liability Third-Party Claim of the type referred to in clauses “clause (i)” ) through “(iii)” iv) above (including any Proceeding commenced by any BioMarin Indemnitee for the purpose of enforcing any of its rights under this Section 8.29.2). (b) Subject to Section 8.2(d9.2(d), Medicis shall not be required to make any indemnification payment pursuant to Sections 8.2(a)(iSection 9.2(a)(i) of this Agreement, Section 9.2(a)(i8.2(a)(i) of the Asset Securities Purchase Agreement and 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 8.2(d9.2(d), the aggregate liability for any indemnification payments pursuant to Section 8.2(a)(i9.2(a)(i) of this Agreement, Section 9.2(a)(i8.2(a)(i) of the Asset 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 2.3, 2.6 2.2 or 2.72.6. (d) The limitations on the indemnification obligations of Medicis set forth in each of Section 8.2(b9.2(b) and Section 8.2(c9.2(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 xxx 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 Asset 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 Date, 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 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: (i) any Breach of any of the representations or warranties made by Medicis in this Agreement; (ii) any Breach of any covenant or obligation of Medicis or Ascent contained in this Agreement; (iii) any Liability of Ascent at the Option Closing, other than any Liability for which BioMarin has indemnified Medicis pursuant to Section 8.3(a)(iii) below; and (iv) any Proceeding relating directly or indirectly to any Breach or Liability of the type referred to in clauses “"(i)” " through “"(iii)” " above (including any Proceeding commenced by any BioMarin Indemnitee for the purpose of enforcing any of its rights under this Section 8.2). (b) Subject to Section 8.2(d), Medicis shall not be required to make any indemnification payment pursuant to Sections 8.2(a)(i) of this Agreement, Section 9.2(a)(i) of the Asset Purchase Agreement 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 8.2(d), the aggregate liability for any indemnification payments pursuant to Section 8.2(a)(i) of this Agreement, Section 9.2(a)(i) of the 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 2.3, 2.6 or 2.7. (d) The limitations on the indemnification obligations of Medicis set forth in each of Section 8.2(b) and Section 8.2(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 xxx 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 Asset Purchase Agreement, such party shall be entitled to only one recovery of 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 Date, 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 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: (i) any Breach breach of any of the representations or warranties made by Medicis in this Agreement; (ii) any Breach of any representation, warranty, covenant or obligation of Medicis or Ascent contained in this Agreement; (iii) any Liability of Ascent at the Option Closing, other than any Liability for which BioMarin has indemnified Medicis pursuant to Section 8.3(a)(iii) below; and (iv) any Proceeding relating directly or indirectly to any Breach or Liability of the type referred to in clauses “(i)” through “(iii)” above (including any Proceeding commenced by any BioMarin Indemnitee for the purpose of enforcing any of its rights agreement under this Section 8.2). (b) Subject to Section 8.2(d), Medicis shall not be required to make any indemnification payment pursuant to Sections 8.2(a)(i) of this Agreement, Section 9.2(a)(i) of the Asset Purchase Agreement 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 8.2(d), the aggregate liability for any indemnification payments pursuant to Section 8.2(a)(i) of this Agreement, Section 9.2(a)(i) of the 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 2.3, 2.6 or 2.7. (d) The limitations on the indemnification obligations of Medicis set forth in each of Section 8.2(b) and Section 8.2(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 fromthe extent such Affiliate is bound under this Agreement or (ii) with respect to obtaining Regulatory Approvals for the first of the Licensed Products in accordance with Section 6.3(b)(iii) hereof, clinical trials conducted by or recourse against, Ascent. Medicis, on behalf of itself Medicis or other services performed by or on behalf of Q-Med in accordance with Section 6.3(b)(iii) hereof, except (x) as otherwise provided in Section 9.1(a) hereof, and each (y) to the extent arising from Q-Med's own negligence or willful misconduct. (b) Notwithstanding anything to the contrary contained herein, (i) Losses shall not include loss of its Affiliatesprofits or consequential damages unless a final arbitral award is issued pursuant to Section 12.6 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, hereby completely releases and covenants not to xxx 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 final arbitral award pursuant to Section 12.6 that determines that such Third Party has intentionally and all Liabilities arising from or in connection with willfully breached 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 its material obligations under this Agreement, 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 arbitral tribunal making such award may determine. (c) Medicis and its Affiliates shall have no liability under this Section 9.2 to the extent that a Q-Med Indemnified Party has been paid pursuant to the License Agreement and/or for an indemnifiable claim involving the Asset Purchase Agreement, such party shall be entitled to only one recovery of 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 DateTime, 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 fromfrom 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 Liability Third Party Claim arising from the conduct or operation of Ascent at the Option Closing, other than any Liability for which BioMarin has indemnified Medicis pursuant Pediatrics Business prior to Section 8.3(a)(iii) below; andthe Effective Time; (iv) any Excluded Liability; or (v) any Proceeding relating directly or indirectly to any Breach Breach, Liability or Liability Third-Party Claim of the type referred to in clauses “clause (i)” ) through “(iii)” iv) above (including any Proceeding commenced by any BioMarin Indemnitee for the purpose of enforcing any of its rights under this Section 8.29.2). (b) Subject to Section 8.2(d9.2(d), Medicis shall not be required to make any indemnification payment pursuant to Sections 8.2(a)(iSection 9.2(a)(i) of this Agreement, Section 9.2(a)(i8.2(a)(i) of the Asset Securities Purchase Agreement and 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 8.2(d9.2(d), the aggregate liability for any indemnification payments pursuant to Section 8.2(a)(i9.2(a)(i) of this Agreement, Section 9.2(a)(i8.2(a)(i) of the Asset 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 2.3, 2.6 2.2 or 2.72.6. (d) The limitations on the indemnification obligations of Medicis set forth in each of Section 8.2(b9.2(b) and Section 8.2(c9.2(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 xxx 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 Asset 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.