Limitations on Indemnification; Exclusive Remedy. (a) Subject to Section 7.13 the parties acknowledge and agree that their sole and exclusive remedy with respect to any and all claims (other than claims arising from fraud or intentional misrepresentation on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in this Article VI. In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted under applicable Laws, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective representatives arising under or based upon any Laws, except pursuant to the indemnification provisions set forth in this Article VI. (b) Other than in the case of a breach of Sections 3.01 or 3.02, the Seller and Xx. Xxxxx shall not be liable to the Purchaser Indemnified Parties for any indemnification amount until the aggregate amount of all Losses exceeds $10,000 (the “Deductible”), in which event the Seller and Xx. Xxxxx shall only be required to pay or be liable for Losses in excess of the Deductible. With the exception of any offsets against Royalty Payments as set forth in Section 6.07, the maximum aggregate amount of all Losses for which the Purchaser Indemnified Parties shall be able to collect pursuant to this Agreement shall not exceed $200,000 (the “Cap”); provided, however: (i) the Cap shall not apply to Losses for breaches of Sections 3.01 and 3.02, in which case the maximum amount of available recourse for Losses shall equal the sum of the Purchase Price and any Royalty Payments that become due after an indemnification claim is made; and (ii) the Cap shall not apply to offsets for Losses against Royalty Payments as set forth in Section 6.07, in which case the maximum amount of recourse to offset for Losses against Royalty Payments as set forth in Section 6.07 shall equal the amount of Royalty Payments that become due after an indemnification claim is made. (c) Payments by an Indemnifying Party pursuant to Section 6.02 or Section 6.03 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds in respect of any such claim. (d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple, unless such damages are included as part of a third party claim against the Indemnified Party. (e) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss.
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Limitations on Indemnification; Exclusive Remedy. (a) Subject Notwithstanding anything to the contrary in this Agreement, the amount of Damages that may be recovered by the Parent Indemnified Parties pursuant to any and all claims for indemnification made under this Article 8 (excluding any claims made under Section 7.13 8.1(a)(7)) shall be limited, individually and in the parties acknowledge aggregate, to the Escrow Fund (the “Cap”). The amount of Damages that may be recovered by the Parent Indemnified Parties pursuant to any and agree that their all claims for indemnification made under Section 8.1(a)(7) shall be limited, individually and in the aggregate, first to the 280G Escrow Fund plus, to the extent such claims exceed the 280G Escrow Fund, the Escrow Fund. If the Merger is consummated, the recovery by the Parent Indemnified Parties pursuant to this Article 8 shall be the sole and exclusive remedy (other than with respect to matters for which the remedy of specific performance, injunctive relief or other non-monetary equitable remedies are available) with respect to any and all claims (other than claims relating to or arising from fraud or intentional misrepresentation on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in this Article VI. In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted under applicable Laws, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against or the other parties hereto and their Affiliates and each of their respective representatives arising under or based upon any LawsTransactions, except pursuant to for Damages resulting in the indemnification provisions set forth in this Article VIcase of fraud.
(b) Other than Notwithstanding anything to the contrary set forth in the case of a breach of Sections 3.01 or 3.02this Agreement, the Seller and Xx. Xxxxx shall not be liable to the Purchaser Parent Indemnified Parties for shall have no right to indemnification against Damages pursuant to this Article 8 (excluding any indemnification amount until claims made under Sections 8.1(a)(7), (8) and (9)) unless the aggregate amount of Damages related to all Losses exceeds such Damages are greater than $10,000 250,000 (the “Deductible”), in which event case the Seller and Xx. Xxxxx shall only be required to pay or be liable for Losses in excess of the Deductible. With the exception of any offsets against Royalty Payments as set forth in Section 6.07, the maximum aggregate amount of all Losses for which the Purchaser Parent Indemnified Parties shall shall, subject to Section 8.6(a), be able entitled to collect pursuant indemnification for all Damages from the first dollar without regard to this Agreement shall not exceed $200,000 (the “Cap”); provided, however: (i) the Cap shall not apply to Losses for breaches of Sections 3.01 and 3.02, in which case the maximum amount of available recourse for Losses shall equal the sum of the Purchase Price and any Royalty Payments that become due after an indemnification claim is made; and (ii) the Cap shall not apply to offsets for Losses against Royalty Payments as set forth in Section 6.07, in which case the maximum amount of recourse to offset for Losses against Royalty Payments as set forth in Section 6.07 shall equal the amount of Royalty Payments that become due after an indemnification claim is madesuch amount.
(c) Payments by an Indemnifying Party pursuant to Section 6.02 or Section 6.03 in respect of any Loss shall be limited Notwithstanding anything to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds contrary in respect of any such claim.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple, unless such damages are included as part of claim for indemnification by a third party claim against the Indemnified Party.
(e) Each Parent Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware be enforceable must be asserted by delivery of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only written notice of such claim in accordance with the requirements of this Article 8 prior to the minimum extent necessary to remedy thirty-six (36) month anniversary of the breach that gives rise to such LossClosing Date, after which any and all additional claims by the Parent Indemnified Parties for indemnification under this Article 8 shall be void and of no force and effect.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Chart Industries Inc)
Limitations on Indemnification; Exclusive Remedy. (a) Subject Notwithstanding anything to the contrary in this Agreement (but subject to the last sentence of this Section 7.13 10.04(a)), the parties acknowledge Seller shall not be liable for any Indemnifiable Losses arising out of or based upon a breach or alleged breach of the representations and agree that their sole warranties in Article III or in any Related Document and exclusive remedy the Purchaser shall not be liable for any Indemnifiable Losses arising out of or based upon a breach or alleged breach of the representations and warranties in Article IV or in any Related Document, in either case unless all Indemnifiable Losses arising out of all such Indemnifiable Losses shall exceed $750,000 in the aggregate, and then only to the extent of such excess. Further, with respect to Indemnifiable Losses arising out of or based upon breaches or alleged breaches of the representations and warranties in Article III, Article IV or in any and all claims Related Document, neither the Seller nor the Purchaser, as the case may be, shall be entitled to indemnification in an aggregate amount in excess of $5,000,000. For the avoidance of doubt, the limitations set forth in this Section 10.04(a) shall not apply to any claim by the Purchaser in respect of Insurance Losses or in respect of the Tax matters identified in Article XI.
(other than claims arising from b) Following the Closing, in the absence of fraud or intentional misrepresentation on the part of a party hereto in connection with the transactions contemplated by this Agreement) Seller or the Purchaser, as the case may be, the provisions of Articles X and XI shall be the exclusive remedy for any breach or alleged breach of any representation, warranty, covenant, agreement representation and warranty contained in Article III or obligation set forth herein or otherwise relating to the subject matter Article IV of this Agreement, shall be pursuant to the indemnification provisions set forth Agreement or in this Article VIany Related Document. In furtherance of the foregoing, each party hereby waives, and agrees to the fullest extent permitted under applicable Lawscause its Affiliates to waive, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it they may have against the any other parties hereto and their Affiliates and each of their respective representatives party or any Affiliate, Representative, director or officer thereof arising under or based upon any Laws, statutory or common law or otherwise (except pursuant to the indemnification provisions set forth in this Article VI.
(bX and XI) Other than in the case of a breach of Sections 3.01 or 3.02, the Seller and Xx. Xxxxx shall not be liable to the Purchaser Indemnified Parties for any indemnification amount until the aggregate amount of all Losses exceeds $10,000 (the “Deductible”), in which event the Seller and Xx. Xxxxx shall only be required to pay or be liable for Losses in excess of the Deductible. With the exception of any offsets against Royalty Payments as set forth in Section 6.07, the maximum aggregate amount of all Losses for which the Purchaser Indemnified Parties shall be able to collect pursuant extent relating to this Agreement shall not exceed $200,000 (or the “Cap”); provided, however: (i) Related Agreements or the Cap shall not apply to Losses for breaches of Sections 3.01 and 3.02, in which case the maximum amount of available recourse for Losses shall equal the sum of the Purchase Price and any Royalty Payments that become due after an indemnification claim is made; and (ii) the Cap shall not apply to offsets for Losses against Royalty Payments as set forth in Section 6.07, in which case the maximum amount of recourse to offset for Losses against Royalty Payments as set forth in Section 6.07 shall equal the amount of Royalty Payments that become due after an indemnification claim is madetransactions contemplated hereby or thereby.
(c) Payments by an Indemnifying Party pursuant To the extent that the Seller or the Purchaser shall have any obligation to Section 6.02 indemnify and hold harmless any Purchaser Indemnitee or Section 6.03 Seller Indemnitee hereunder, such obligation shall not include lost profits or other consequential, special, punitive, incidental or indirect damages (and the injured party shall not recover for such amounts) arising in respect of any Loss shall be limited connection with or otherwise related to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds in respect of any such claim.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of transactions contemplated by this Agreement, or diminution of value or any damages based on any type of multiple, unless such damages are included as part of a third party claim against the Indemnified Party.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss.
Appears in 1 contract
Samples: Stock Purchase and Merger Agreement (American Skiing Co /Me)
Limitations on Indemnification; Exclusive Remedy. (a) Subject Notwithstanding anything to Section 7.13 the parties acknowledge contrary in this Agreement, the Sellers shall not be liable for any Indemnifiable Losses arising out of or based upon a breach or alleged breach of (i) the representations and agree that their sole warranties in Article III or (ii) the covenants and exclusive remedy agreements of the Sellers contained in this Agreement, and the Buyer shall not be liable for any Indemnifiable Losses arising out of or based upon a breach or alleged breach of (a) the representations and warranties in Article IV or (b) the covenants and agreements of the Buyer contained in this Agreement, in each case unless all Indemnifiable Losses arising out of all such Indemnifiable Losses shall exceed $1,000,000 in the aggregate, and then only to the extent of such excess. Further, with respect to Indemnifiable Losses arising out of or based upon breaches or alleged breaches of the representations and warranties in Article III or Article IV, neither the Sellers on the one hand, nor the Buyer, on the other hand, shall be entitled to indemnification in an aggregate amount in excess of $3,000,000. Notwithstanding the foregoing, the limitations set forth in this Section 9.4(a) shall not apply to (i) any claim by the Buyer in respect of (A) the representation contained in Section 3.21, (B) Section 2.7(f) or (C) the representations contained in Section 3.14 and (ii) any claim by any Seller in respect of (A) the representation contained in Section 4.5, or (B) Section 2.7(f) or the indemnification obligation set forth in Sections 9.2(iii) and (iv) and Sections 9.3(iii) and (iv).
(b) For purposes of indemnification, the representations and warranties in Articles III and IV shall be construed as if they were not qualified by the terms “material,” “materially,” “in all claims material respects,” “in any material respect,” “material in financial terms,” or “Material Adverse Effect.”
(other than claims arising from c) Following the Closing, in the absence of fraud or intentional misrepresentation on the part of a party hereto in connection with the transactions contemplated by Sellers or the Buyer, as the case may be, the provisions of this Agreement) Article IX shall be the exclusive remedy for any breach or alleged breach of (i) any representation, warranty, covenant, representation and warranty contained in Article III or Article IV (other than Section 3.21) and (ii) any covenant or agreement to be performed on or obligation set forth herein or otherwise relating prior to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in this Article VIClosing Date. In furtherance of the foregoing, each party hereby waives, and agrees to the fullest extent permitted under applicable Lawscause its Affiliates to waive, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it they may have against the any other parties hereto and their Affiliates and each of their respective representatives party or any Affiliate thereof arising under or based upon any Laws, statutory or common law or otherwise (except pursuant to the indemnification provisions set forth in this Article VI.
(b) Other than in the case of a IX and except with respect to any breach of Sections 3.01 any covenant or 3.02, agreement to be performed following the Seller and Xx. Xxxxx shall not be liable Closing) to the Purchaser Indemnified Parties for any indemnification amount until the aggregate amount of all Losses exceeds $10,000 (the “Deductible”), in which event the Seller and Xx. Xxxxx shall only be required to pay or be liable for Losses in excess of the Deductible. With the exception of any offsets against Royalty Payments as set forth in Section 6.07, the maximum aggregate amount of all Losses for which the Purchaser Indemnified Parties shall be able to collect pursuant extent relating to this Agreement shall not exceed $200,000 (or the “Cap”); provided, however: (i) the Cap shall not apply to Losses for breaches of Sections 3.01 and 3.02, in which case the maximum amount of available recourse for Losses shall equal the sum of the Purchase Price and any Royalty Payments that become due after an indemnification claim is made; and (ii) the Cap shall not apply to offsets for Losses against Royalty Payments as set forth in Section 6.07, in which case the maximum amount of recourse to offset for Losses against Royalty Payments as set forth in Section 6.07 shall equal the amount of Royalty Payments that become due after an indemnification claim is made.
(c) Payments by an Indemnifying Party pursuant to Section 6.02 or Section 6.03 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds in respect of any such claimtransactions contemplated hereby.
(d) In no event To the extent that a party hereto shall have any Indemnifying obligation to indemnify and hold harmless any other Person hereunder, such obligation shall not include lost profits or other consequential, special, punitive, incidental or indirect damages (and the injured party shall not recover for such amounts), except to the extent such amounts are required to be paid to a third party other than an Indemnified Party or a Person affiliated therewith.
(e) Notwithstanding anything to the contrary in this Agreement, Sellers shall not be liable to any Indemnified Party for any punitive, incidental, consequential, special Indemnifiable Losses arising out of or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the based upon a breach or alleged breach of this Agreementthe representations and warranties in Article III if (i) Sellers did not have Knowledge, or diminution prior to the Closing, of value or any damages based on any type of multiple, unless the facts which comprised such damages are included as part of a third party claim against the Indemnified Party.
(e) Each Indemnified Party shall takebreach, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware (ii) Buyer had actual knowledge of any event such breach on or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only prior to the minimum extent necessary Closing. The Buyer will be deemed to remedy have actual Knowledge of information only if (1) such information is actually known by Xxxx Xxxxxx, Xxxxxx Xxxxx, Xxxx Xxxxxxx or Xxxx Xxxxxxx or (2) the breach that gives rise information relating to such Lossbreach is contained in written reports, studies or analysis commissioned by or on behalf of Buyer or its Affiliates.
Appears in 1 contract
Limitations on Indemnification; Exclusive Remedy. (a) Subject to Section 7.13 the parties acknowledge and agree that their sole and exclusive remedy with respect to any and all claims (other than claims arising from fraud or intentional misrepresentation on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating Notwithstanding anything to the subject matter of contrary in this Agreement, shall be pursuant to the indemnification provisions set forth in this Article VI. In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted under applicable Laws, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective representatives arising under or based upon any Laws, except pursuant to the indemnification provisions set forth in this Article VI.
(b) Other than in the case of a breach of Sections 3.01 or 3.02, the Seller and Xx. Xxxxx ASC shall not be liable to the Purchaser Indemnified Parties for any indemnification amount until Indemnifiable Losses arising out of or based upon a breach or alleged breach of (i) the representations and warranties in Article III or (ii) the covenants and agreements of the Sellers contained in this Agreement, unless such Indemnifiable Losses shall exceed $1,000,000 in the aggregate amount of all Losses exceeds $10,000 (the “Deductible”), and then only to the extent of such excess. Further, with respect to Indemnifiable Losses arising out of or based upon breaches or alleged breaches of the representations and warranties in which event Article III, the Seller and Xx. Xxxxx Purchasers shall only not be required entitled to pay or be liable indemnification (x) for Losses claims in an aggregate amount in excess of $2,000,000 (inclusive of the Deductible), or (y) with respect to which notice of a claim has not been provided prior to the applicable Expiration Date. With Notwithstanding the exception of any offsets against Royalty Payments as foregoing, the limitations set forth in this Section 6.07, the maximum aggregate amount of all Losses for which the Purchaser Indemnified Parties shall be able to collect pursuant to this Agreement shall not exceed $200,000 (the “Cap”); provided, however: (i10.4(a) the Cap shall not apply to Losses for breaches of Sections 3.01 and 3.02, any claim by the Purchasers in which case the maximum amount of available recourse for Losses shall equal the sum respect of the Purchase Price Tax matters identified in Article XI or the representations contained in Section 3.2.
(b) Notwithstanding anything to the contrary in this Agreement, ASC shall not be liable for any Indemnifiable Losses arising out of or based upon a breach or alleged breach of the representations and any Royalty Payments that become due after an indemnification claim is made; and warranties in Article III if (i) neither ASC or the Company had Knowledge, prior to the Closing, of the facts which comprised such breach, or (ii) the Cap shall Purchaser had actual or constructive knowledge of such breach on or prior to the Closing. The Purchaser will be deemed to have actual Knowledge of information only if such information is actually known by Jxxx Xxxxxxxxx, Mxxxx Xxxxxx and Jxxx Xxxxxx. The Purchaser will be deemed to have constructive Knowledge of a breach of a representation and warranty if Jxxx Xxxxxxxxx, Mxxxx Xxxxxx and Jxxx Xxxxxx or any of the Purchaser’s Representatives obtained knowledge prior to the Closing that any of the Sellers’ representations and warranties have been breached, or if any Seller or its Representatives have delivered information to Purchaser or any of its Representatives at any time prior to the Closing which is inconsistent with any of the representations and warranties herein and/or which indicates that any of such representations and warranties are not apply to offsets for Losses against Royalty Payments as set forth in Section 6.07, in which case the maximum amount of recourse to offset for Losses against Royalty Payments as set forth in Section 6.07 shall equal the amount of Royalty Payments that become due after an indemnification claim is madecorrect.
(c) Payments by an Indemnifying Party pursuant To the extent that a party hereto shall have any obligation to Section 6.02 indemnify and hold harmless any other Person hereunder, such obligation shall not include lost profits or Section 6.03 in respect of any Loss other consequential, special, punitive, incidental or indirect damages (and the injured party shall be limited not recover for such amounts), except to the amount of any liability extent such amounts are required to be paid to a third party other than an Indemnified Party or damage that remains after deducting therefrom any insurance proceeds in respect of any such claima Person affiliated therewith.
(d) In no event The amount of any loss, liability, cost or expense for which indemnification is provided under this Article X shall be net of any Indemnifying Party amounts actually recovered by a Purchaser Indemnitee or a Seller Indemnitee, as the case may be, under an insurance policy with respect to such loss, liability, cost or expenses and shall be liable reduced to take account of the aggregate Tax benefit(s) realized by a Purchaser Indemnitee or a Seller Indemnitee, as the case may be, arising from the incurrence or payment of any Indemnified Party for any punitivesuch loss, incidentalliability, consequential, special cost or indirect damagesexpense. The Buyer agrees to use commercially reasonable efforts to mitigate all Indemnifiable Losses, including loss availing itself of future revenue any commercially reasonable defenses, limitations, rights of contribution, claims against third parties and other rights at law or income, loss of business reputation equity; so long as such actions do not result in any significant additional cost or opportunity relating liability to the breach Buyer or alleged breach of this Agreement, or diminution of value or limit any damages based on any type of multiple, unless such damages are included as part of a third party claim against the Indemnified Partyrights available to Buyer.
(e) Each Indemnified Party In the absence of fraud, from and after the Closing, the indemnification provided for in Articles X and XI shall take, be the sole remedy for any breach of the terms of this Agreement and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such LossRelated Documents.
Appears in 1 contract
Limitations on Indemnification; Exclusive Remedy. (a) Subject to the following sentence, the Indemnified Persons may not recover Losses from the Escrow Fund or the Indemnifying Securityholders in respect of any claim for indemnification under Section 7.2(a)(i) or Section 7.13 7.2(a)(ii) unless and until Losses in respect of any claim(s) under this Agreement have been incurred, paid or properly accrued in an aggregate amount greater than $232,500 (the parties acknowledge “Indemnification Threshold”). Notwithstanding the foregoing sentence, the Indemnified Persons will be entitled to recover for, and agree that their sole and exclusive remedy the Indemnification Threshold will not apply to, any Losses with respect to any breach of or inaccuracy in any representation or warranty made in Section 2.1 (Organization and Powers), Section 2.2 (Capitalization; Subsidiaries), Section 2.3(a) (Authority; Noncontravention), Section 2.9 (Taxes), Section 2.23 (Board Approval) or Section 2.24 (Stockholder Approval) (the “Uncapped Company Representations”) or in respect of any claim arising out of, related to or resulting from fraud, willful misconduct or intentional misrepresentation by the Company or any of its Affiliates. Once the Indemnification Threshold has been exceeded, the Indemnified Persons will be entitled to recover for the full amount of all claims such Losses (i.e., from the first dollar), subject to this Article 7.
(b) Recovery by Indemnified Persons of their Losses in respect of any claim for indemnification under Section 7.2(a) shall be made as follows:
(i) With respect to breaches of or inaccuracies in any representation or warranty of the Company under Section 7.2(a)(i) (other than claims arising the Uncapped Company Representations) and any claim for indemnification under Section 7.2(a)(xii): (A) first from fraud the Escrow Fund, and (B) if the aggregate of all unresolved or intentional misrepresentation on unsatisfied Liability Claims set forth in all Claims Notices delivered to the part Escrow Agent and the Representative prior to the Claim Period Expiration Time exceeds the then-existing Escrow Fund, directly from each Indemnifying Securityholder according to its Pro Rata Portion of a party hereto such Losses, in an additional amount of up to the aggregate of (1) the Unpaid Third Party Expenses (if any), (2) the Unpaid Company Indebtedness (if any), and (3) the Negative Net Working Capital Adjustment (if any), in each case to the extent such amounts were previously paid out of the Escrow Fund.
(ii) With respect to breaches of or inaccuracies in the Uncapped Company Representations or any claim for indemnification under Section 7.2(a)(ii) through Section 7.2(a)(xi) (collectively, “Uncapped Liabilities”): (A) first from the Escrow Fund, and (B)(1) if the aggregate of all unresolved or unsatisfied Liability Claims set forth in all Claims Notices delivered to the Escrow Agent and the Representative prior to the Claim Period Expiration Time exceeds the then-existing Escrow Fund or (2) after the Claim Period Expiration Time, directly from each Indemnifying Securityholder; provided, however, that an Indemnifying Securityholder’s liability for all Losses shall in no event exceed the Merger Consideration actually received by such Indemnifying Securityholder.
(c) The parties shall treat any indemnification payments made hereunder as an adjustment to the Merger Consideration for accounting and Tax purposes unless otherwise required by applicable Law.
(d) No Indemnifying Securityholder will have any right of contribution, right of indemnity or other right or remedy against Parent or the Surviving Corporation in connection with the transactions contemplated by any indemnification obligation or any other liability to which such Indemnifying Securityholder may become subject under or in connection with this Agreement.
(e) for No Indemnified Person’s rights under this Article 7 will be adversely affected by any breach investigation conducted, or any knowledge acquired or capable of being acquired, by such Indemnified Person at any time, whether before or after the execution or delivery of this Agreement or the Closing, or by the waiver of any condition to Closing. No Indemnified Person shall be required to show reliance on any representation, warranty, covenantcertificate or other agreement in order for such Indemnified Person to be entitled to indemnification hereunder.
(f) Following the Closing, agreement in the absence of a showing of fraud, willful misconduct or obligation set forth herein intentional misrepresentation by or otherwise relating on behalf of a party from whom such indemnification could be sought, the indemnification provided under Section 7.2 shall be the sole and exclusive remedy of the parties and any parties claiming by or through any party (including the Indemnified Persons) with respect to the subject matter of any misrepresentation or inaccuracy in, or breach of, any representations or warranties made under this Agreement, shall be pursuant to the indemnification provisions set forth in this Article VI. In furtherance of the foregoing, and each party hereby waives, to the fullest extent permitted under applicable Lawsthat it may do so, any other rights or remedies that may arise under any applicable Law. In the absence of a showing of fraud, willful misconduct or intentional misrepresentation by or on behalf of the Company, any of its Subsidiaries or the Representative and all rightsexcept as otherwise explicitly set forth herein, claims and causes of action the aggregate indemnification for any claims under this Agreement and the Related Agreements shall in no event exceed the aggregate Merger Consideration actually received by the Indemnifying Securityholders. For the avoidance of doubt, the foregoing shall not limit the Representative’s indemnity provided in Section 7.9(c).
(g) Notwithstanding anything to the contrary contained in this Agreement, nothing herein will prevent any Indemnified Person from bringing an Action for fraud, willful misconduct or intentional misrepresentation against any Person, including any Indemnifying Securityholder, whose fraud, willful misconduct or intentional misrepresentation has caused such Indemnified Person to incur Losses or has limited the Losses recoverable by such Indemnified Person in such Action. Nothing in this Agreement will limit the liability of the Company for any misrepresentation or breach of any representation, warranty, covenant, covenant or agreement or obligation set forth herein or otherwise relating to if the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective representatives arising under or based upon any Laws, except pursuant to the indemnification provisions set forth in this Article VIMerger is not consummated.
(b) Other than in the case of a breach of Sections 3.01 or 3.02, the Seller and Xx. Xxxxx shall not be liable to the Purchaser Indemnified Parties for any indemnification amount until the aggregate amount of all Losses exceeds $10,000 (the “Deductible”), in which event the Seller and Xx. Xxxxx shall only be required to pay or be liable for Losses in excess of the Deductible. With the exception of any offsets against Royalty Payments as set forth in Section 6.07, the maximum aggregate amount of all Losses for which the Purchaser Indemnified Parties shall be able to collect pursuant to this Agreement shall not exceed $200,000 (the “Cap”); provided, however: (i) the Cap shall not apply to Losses for breaches of Sections 3.01 and 3.02, in which case the maximum amount of available recourse for Losses shall equal the sum of the Purchase Price and any Royalty Payments that become due after an indemnification claim is made; and (ii) the Cap shall not apply to offsets for Losses against Royalty Payments as set forth in Section 6.07, in which case the maximum amount of recourse to offset for Losses against Royalty Payments as set forth in Section 6.07 shall equal the amount of Royalty Payments that become due after an indemnification claim is made.
(c) Payments by an Indemnifying Party pursuant to Section 6.02 or Section 6.03 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds in respect of any such claim.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple, unless such damages are included as part of a third party claim against the Indemnified Party.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss.
Appears in 1 contract
Limitations on Indemnification; Exclusive Remedy. (a) Subject Any claim for indemnification by an Investor Indemnified Party pursuant to Section 7.13 6.5(a) or by a Company Indemnified Party pursuant to Section 6.6(a) shall be received by the parties acknowledge applicable Indemnifying Party in writing within 36 months following the Closing Date (and agree any such claim received after such date shall be null and void), except that their sole and exclusive remedy with respect to any and all (i) claims (other than claims arising from fraud or intentional misrepresentation on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise indemnification relating to the subject matter of this Agreementrepresentations and warranties contained in Sections 2.11, shall 2.12 and 2.14 may be pursuant to made until the indemnification provisions set forth in this Article VI. In furtherance expiration of the foregoingstatute of limitations applicable to such matters, each party hereby waives, to the fullest extent permitted under applicable Laws, any and all rights, (ii) claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise indemnification relating to the subject matter representations and warranties contained in Sections 2.1, 2.2, 2.3, 2.4 and 3.1 may be made forever and (iii) there shall be no time limit for making any claim for such indemnification if the representation or warranty on which such claim is based was made with actual knowledge that it contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements or facts contained therein not misleading. The covenants contained in this Agreement it may have against the other parties hereto and their Affiliates and each of their respective representatives arising under or based upon any Laws, except pursuant to the indemnification provisions set forth in this Article VIshall survive forever.
(b) Other than in the case of a breach of Sections 3.01 or 3.02, the Seller and Xx. Xxxxx The Company shall not be liable to the Purchaser Investor Indemnified Parties for any indemnification amount claims under Section 6.5(a) until the aggregate cumulative amount of all Investor Indemnified Party Losses relating to such claims exceeds $10,000 (50,000, at which time the “Deductible”), in which event the Seller and Xx. Xxxxx Company shall only be required to pay or be liable only for such Losses in excess of the Deductible. With the exception of any offsets against Royalty Payments as set forth in Section 6.07, the maximum aggregate amount of all Losses for which the Purchaser Indemnified Parties shall be able to collect pursuant to this Agreement shall not exceed $200,000 (the “Cap”)such amount; provided, however: (i) that, the Cap foregoing condition and limitation on liability shall not apply to Losses for breaches of Sections 3.01 and 3.02, in which case the maximum amount of available recourse for Losses shall equal the sum claims pertaining to a breach of the Purchase Price representations or warranties contained in Sections 2.1, 2.2, 2.3 and any Royalty Payments 2.4 and provided, further, that become due after an indemnification claim is made; the foregoing condition and (ii) the Cap limitation on liability shall not apply to offsets for Losses against Royalty Payments as set forth in Section 6.07, in which case the maximum amount breach of recourse any of the representations and warranties of the Company contained herein if such representation or warranty was made with actual knowledge that it contained an untrue statement of a material fact or omitted to offset for Losses against Royalty Payments as set forth in Section 6.07 shall equal state a material fact necessary to make the amount of Royalty Payments that become due after an indemnification claim is madestatements or facts contained therein not misleading.
(c) Payments by an Indemnifying Investor shall not be liable to Company Indemnified Parties for indemnification claims under Section 6.6(a) until the cumulative amount of Company Indemnified Party pursuant Losses relating to such claims exceeds $50,000, at which time Investor shall be liable only for such Losses in excess of such amount; provided, that, the foregoing condition and limitation on liability shall not apply to claims pertaining to a breach of the representations or warranties contained in Section 6.02 or Section 6.03 in respect 3.1 and provided, further, that the foregoing condition and limitation on liability shall not apply to the breach of any Loss shall be limited of the representations and warranties of Investor contained herein if such representation or warranty was made with actual knowledge that it contained an untrue statement of a material fact or omitted to state a material fact necessary to make the amount of any liability statements or damage that remains after deducting therefrom any insurance proceeds in respect of any such claimfacts contained therein not misleading.
(d) The indemnification provisions of this Article VI shall be the exclusive remedy hereunder following the Closing, except for the remedy of specific performance as provided in Section 7.3 or unless there has been an instance of fraud or willful breach of the provisions hereof. In no event shall any Indemnifying Party officer of Investor be personally liable to any Indemnified Party for any punitiveas a result of Investor's entry into, incidentalor the consummation of the transactions contemplated by, consequential, special or indirect damages, including loss this Agreement. In the event of future revenue or income, loss willful breach by the Company of business reputation or opportunity relating its obligations hereunder prior to the breach or alleged breach of this AgreementClosing, or diminution of value or Investor shall be entitled to recover from the Company Investor's costs and reasonable attorneys' fees in connection with any suit to recover damages based on any type of multiple, unless suffered in connection with such damages are included as part of a third party claim against the Indemnified Partybreach.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss.
Appears in 1 contract
Samples: Securities Purchase Agreement (Andlinger Capital Xiii LLC)
Limitations on Indemnification; Exclusive Remedy. (a) Subject Any claim for indemnification by an Investor Indemnified Party pursuant to Section 7.13 6.5(a) or Section 6.6(a) or (b) or by a Company Indemnified Party pursuant to Section 6.7(a) or Section 6.8(a) or by an Axess Indemnified Party pursuant to Section 6.9(a) or Section 6.10(a), shall be received by the parties acknowledge applicable Indemnifying Party in writing within six months following the completion of the audit of the Company's fiscal year ending December 31, 2000 (and agree any such claim received after such date shall be null and void), except that their sole and exclusive remedy with respect to any and all (i) claims (other than claims arising from fraud or intentional misrepresentation on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise indemnification relating to the subject matter of this Agreementrepresentations and warranties contained in Sections 2.11, shall 2.12 and 2.14 may be pursuant to made until the indemnification provisions set forth in this Article VI. In furtherance expiration of the foregoingstatute of limitations applicable to such matters, each party hereby waives, to the fullest extent permitted under applicable Laws, any and all rights, (ii) claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise indemnification relating to the subject matter representations and warranties contained in Sections 2.1, 2.2, 2.3, 2.4 and 3.1 may be made forever and (iii) there shall be no time limit for making any claim for such indemnification if the representation or warranty on which such claim is based was made with actual knowledge that it contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements or facts contained therein not misleading. The covenants contained in this Agreement it may have against the other parties hereto and their Affiliates and each of their respective representatives arising under or based upon any Laws, except pursuant to the indemnification provisions set forth in this Article VIshall survive forever.
(b) Other than in the case of a breach of Sections 3.01 or 3.02, the Seller and Xx. Xxxxx The Company shall not be liable to the Purchaser Investor Indemnified Parties for any indemnification amount claims under Section 6.6(a) until the aggregate cumulative amount of all Investor Indemnified Party Losses relating to such claims exceeds $10,000 (25,000, at which time the “Deductible”), in which event the Seller and Xx. Xxxxx Company shall only be required to pay or be liable only for such Losses in excess of the Deductible. With the exception of any offsets against Royalty Payments as set forth in Section 6.07, the maximum aggregate amount of all Losses for which the Purchaser Indemnified Parties shall be able to collect pursuant to this Agreement shall not exceed $200,000 (the “Cap”)such amount; provided, however: (i) that, the Cap foregoing condition and limitation on liability shall not apply to Losses for breaches of Sections 3.01 and 3.02, in which case the maximum amount of available recourse for Losses shall equal the sum claims pertaining to a breach of the Purchase Price representations or warranties contained in Sections 2.1, 2.2, 2.3 and any Royalty Payments 2.4 and provided, further, that become due after an indemnification claim is made; the foregoing condition and (ii) the Cap limitation on liability shall not apply to offsets for Losses against Royalty Payments as set forth in Section 6.07, in which case the maximum amount breach of recourse any of the representations and warranties of the Company contained herein if such representation or warranty was made with actual knowledge that it contained an untrue statement of a material fact or omitted to offset for Losses against Royalty Payments as set forth in Section 6.07 shall equal state a material fact necessary to make the amount of Royalty Payments that become due after an indemnification claim is madestatements or facts contained therein not misleading.
(c) Payments by an Indemnifying Investor shall not be liable to Company Indemnified Parties for indemnification claims under Section 6.8(a) until the cumulative amount of Company Indemnified Party pursuant Losses relating to such claims exceeds $25,000, at which time Investor shall be liable only for such Losses in excess of such amount; provided, that, the foregoing condition and limitation on liability shall not apply to claims pertaining to a breach of the representations or warranties contained in Section 6.02 or Section 6.03 in respect 3.1 and provided, further, that the foregoing condition and limitation on liability shall not apply to the breach of any Loss shall be limited of the representations and warranties of Investor contained herein if such representation or warranty was made with actual knowledge that it contained an untrue statement of a material fact or omitted to state a material fact necessary to make the amount of any liability statements or damage that remains after deducting therefrom any insurance proceeds in respect of any such claimfacts contained therein not misleading.
(d) Investor shall not be liable to Axess Indemnified Parties for indemnification claims under Section 6.9(a) until the cumulative amount of Company Indemnified Party Losses relating to such claims exceeds $25,000, at which time Investor shall be liable only for such Losses in excess of such amount and provided, further, that the foregoing condition and limitation on liability shall not apply to the breach of any of the representations and warranties of Investor contained herein if such representation or warranty was made with actual knowledge that it contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements or facts contained therein not misleading.
(e) Axess shall not be liable to Company Indemnified Parties for indemnification claims under Section 6.7(a) until the cumulative amount of Company Indemnified Party Losses relating to such claims exceeds $25,000, at which time Axess shall be liable only for such Losses in excess of such amount; and provided, further, that the foregoing condition and limitation on liability shall not apply to the breach of any of the representations and warranties of Investor contained herein if such representation or warranty was made with 45 actual knowledge that it contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements or facts contained therein not misleading.
(f) Axess shall not be liable to Investor Indemnified Parties for indemnification claims under Section 6.6(a) until the cumulative amount of Investor Indemnified Party Losses relating to such claims exceeds $100,000, at which time Axess shall be liable only for such Losses in excess of such amount; and Axess shall not be liable to Investor Indemnified Parties for indemnification claims under Section 6.6(b) until the cumulative amount of Investor Indemnified Party Losses relating to such claims exceeds $1,000,000, at which time Axess shall be liable only to the extent such Losses exceed $1,000,000 but are less than $2,000,000 provided, that, the foregoing condition and limitation on liability in this paragraph (e) shall not apply to the breach of any of the representations and warranties of Investor contained herein if such representation or warranty was made with actual knowledge that it contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements or facts contained therein not misleading.
(g) The Company shall not be liable to Axess Indemnified Parties for indemnification claims under Section 6.6(a) until the cumulative amount of Investor Indemnified Party Losses relating to such claims exceeds $25,000, at which time the Company shall be liable only for such Losses in excess of such amount; and provided that the foregoing condition and limitation on liability shall not apply to the breach of any of the representations and warranties of the Company contained herein if such representation or warranty was made with actual knowledge that it contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements or facts contained therein not misleading.
(h) The indemnification provisions of this Article VI shall be the exclusive remedy hereunder following the Closing for claims between the Company, the Investor and Axess, as the case may be, except for the remedy of specific performance as provided in Section 7.3 or unless there has been an instance of fraud or willful breach of the provisions hereof. In no event shall any Indemnifying Party officer of Investor or Axess be personally liable to any Indemnified Party for any punitiveas a result of Investor's or Axess' entry into, incidentalor the consummation of the transactions contemplated by, consequential, special or indirect damages, including loss this Agreement. In the event of future revenue or income, loss willful breach by the Company of business reputation or opportunity relating its obligations hereunder prior to the breach or alleged breach of this AgreementClosing, or diminution of value or Investor shall be entitled to recover from the Company Investor's costs and reasonable attorneys' fees in connection with any suit to recover damages based on any type of multiple, unless suffered in connection with such damages are included as part of a third party claim against the Indemnified Partybreach.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss.
Appears in 1 contract
Limitations on Indemnification; Exclusive Remedy. (a) Subject to The Indemnified Persons may not recover any Indemnifiable Losses under Section 7.13 the parties acknowledge and agree that their sole and exclusive remedy 7.2(a)(1) (except for any claims with respect to any Fundamental Representations) unless and all claims until they have sustained Indemnifiable Losses in an aggregate amount greater than $500,000 (other than claims arising from fraud or intentional misrepresentation on the part of a party hereto in connection “Indemnification Threshold Amount”). Once the Indemnification Threshold Amount has been exceeded with the transactions contemplated by this Agreementrespect to Indemnifiable Losses under Section 7.2(a)(1) (except for any breach claims with respect to any Fundamental Representations), the Indemnified Persons shall be entitled to recover all Indemnifiable Losses in excess of any representationthe Indemnification Threshold Amount, warranty, covenant, agreement or obligation set forth herein or otherwise relating subject to the subject matter of this Agreement, shall be pursuant to the indemnification provisions other limitations set forth in this Article VIVII. For purposes of the preceding sentences of this Section 7.3(a), in each set of events or circumstances where an Indemnifiable Loss is less than $5,000, such Indemnifiable Loss shall not be considered in determining whether the Indemnified Persons have sustained Indemnifiable Losses in excess of the Indemnification Threshold Amount. In furtherance determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Indemnifiable Losses in respect of the foregoing, each party hereby waives, to the fullest extent permitted under applicable Laws, any and all rights, claims and causes of action for any failure breach of any representationrepresentation or warranty to be true and correct as of any particular date, warrantyany materiality, covenant, agreement Material Adverse Effect or obligation set forth herein similar qualification limiting the scope of such NAI-1503806643v11 representation or otherwise relating to warranty shall be disregarded. The aggregate amount of all Indemnifiable Losses for which the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective representatives arising under or based upon any Laws, except Escrow Participants shall be liable pursuant to the indemnification provisions set forth Section 7.2(a)(1) shall not exceed $850,000 (in this Article VIeach case except for any claims with respect to any Fundamental Representations).
(b) Other The Indemnified Persons’ recovery for any and all Indemnifiable Losses under Section 7.2(a)(1), other than in the case for Indemnifiable Losses that arise out of a (i) any breach of Sections 3.01 the Fundamental Representations or 3.02, the Seller and Xx. Xxxxx shall not be liable to the Purchaser Indemnified Parties for (ii) any indemnification amount until the aggregate amount of all Losses exceeds $10,000 (the “Deductible”), in which event the Seller and Xx. Xxxxx shall only be required to pay or be liable for Losses in excess breach of the Deductible. With the exception of any offsets against Royalty Payments as representations and warranties set forth in Section 6.073.23 to the extent such breach concerns to the Company’s operations outside of the United States, shall be limited to recovery from (1) first, the maximum aggregate Regular Indemnification Escrow Fund (to the extent of the retention under the R&W Policy), (2) second, the R&W Policy, to the extent recovered thereunder, and (3) third, to the extent such Indemnifiable Losses exceed the amount recovered from (assuming compliance with Section 5.13), or are not covered (including by operation of the retention thereunder) under, the R&W Policy, again from the Regular Indemnification Escrow Fund.
(c) The Indemnified Persons’ recovery for any and all Indemnifiable Losses under Section 7.2(a)(2) and Section 7.2(a)(6) shall be limited to recovery from (1) first, the Regular Indemnification Escrow Fund (to the extent of the retention under the R&W Policy), (2) second, the R&W Policy, to the extent recovered thereunder, (3) third, to the extent such Indemnifiable Losses exceed the amount recovered from, or are not covered (including by operation of the retention thereunder) under, the R&W Policy, again from the Regular Indemnification Escrow Fund, and (4) fourth, if such Indemnifiable Losses exceed amounts recovered from (assuming compliance with Section 5.13) the Regular Indemnification Escrow Fund and the R&W Policy, then from each former holder of Company Capital Stock and Company Options who is an Escrow Participant of its Escrow Pro Rata Portion of the Indemnifiable Losses that exceed the amounts actually recovered under the R&W Policy or from the Regular Indemnification Escrow Fund, up to the amount of Merger Consideration actually received by such former holder (including any amounts paid to an Escrow Participant pursuant to (A) Section 2.10(h) and (B) the Escrow Agreement).
(d) The Indemnified Persons’ recovery for any and all Indemnifiable Losses under (i) Section 7.2(a)(1) that arise out of any Fundamental Representations, or (ii) Section 7.2(a)(3) through Section 7.2(a)(5) shall be from (1) first, the Regular Indemnification Escrow Fund (to the extent of the retention under the R&W Policy); (2) second, the R&W Policy, to the extent recovered thereunder, provided that, for the first three years following the Closing Date, the Indemnified Persons shall not be required to recover from the R&W Policy to the extent that such recovery would result in reduction of the remaining aggregate coverage under the R&W Policy available for Indemnifiable Losses not arising under the matters set forth in subsections (i) and (ii) of this Section 7.3(d) (including as the result of prior or pending claims) below $5,000,000; (3) third, to the extent such Indemnifiable Losses exceed the amount recovered from, or are not covered (including by operation of the retention thereunder) under, the R&W Policy, again from the Regular Indemnification Escrow Fund; and (4) fourth, if such Indemnifiable Losses exceed amounts recovered from (assuming compliance with Section 5.13) the Regular Indemnification Escrow Fund and under the R&W Policy, then from each former holder of Company Capital Stock and Company Options who is an Escrow Participant of its Escrow Pro Rata Portion of the Indemnifiable Losses that exceed the amounts actually recovered NAI-1503806643v11 under the R&W Policy and from the Regular Indemnification Escrow Fund, up to the amount of Merger Consideration actually received by such former holder (including any amounts paid to an Escrow Participant pursuant to (A) Section 2.10(h) and (B) the Escrow Agreement).
(e) The Indemnified Persons’ recovery for any and all Indemnifiable Losses which are described in or arise pursuant to Section 7.2(a)(7) or Section 7.2(a)(8) shall be limited to recovery from the Special Indemnification Escrow Fund (regardless of whether such Indemnifiable Losses may be described in or arise pursuant to any other provision of this Agreement other than Section 7.2(a)(7) or Section 7.2(a)(8)).
(f) The Indemnified Person’s recovery for any and all Indemnifiable Losses under Section 7.2(a)(9) shall be limited to recovery from (1) first, the Regular Indemnification Escrow Fund (to the extent of the retention under the R&W Policy) and (2) second, if such Indemnifiable Losses exceed amounts recoverable from the Regular Indemnification Escrow Fund, then from the Special Indemnification Escrow Fund.
(g) Notwithstanding anything in this Agreement to the contrary, an Indemnified Person may recover without limitation from any holder of Company Capital Stock and Company Options with respect to claims for Fraud committed by such Person.
(h) Except for (i) claims for Fraud, (ii) the right to specific performance or injunctive relief as contemplated by Section 9.10, (iii) the right to pursue remedies under any other Contract entered into by a Person in connection with this Agreement in accordance with such Contract or (iv) the disputes to be resolved under Section 2.10, the remedies provided in this Article VII and recovery under the R&W Policy shall, after the Closing, be the sole and exclusive remedy available to the Indemnified Persons for any claim or cause of action based upon, arising out of this Agreement, including in respect of breaches of representations and warranties, covenants or agreements contained in this Agreement. Other than as provided in this Agreement (including claims in connection with Fraud) or pursuant to a Letter of Transmittal or a Joinder and Release Agreement, no Person who before the Effective Time was a holder of Company Capital Stock or Company Options or was a director, officer, employee or Affiliate of the Company or any of its Subsidiaries shall have any liability or obligation with respect to this Agreement or any claim or cause of action based upon, arising out of or related to this Agreement or the negotiation, execution or performance of this Agreement.
(i) Except as otherwise required by applicable Law, the parties shall treat any indemnification payments made hereunder as an adjustment to the Merger Consideration as specified in Section 2.5(c) for accounting and tax purposes.
(j) Indemnifiable Losses for which any of the Purchaser Indemnified Parties Persons are entitled to recovery shall be able reduced by (1) the amount of any insurance proceeds actually recovered by the Indemnified Persons with respect to collect pursuant such Indemnifiable Losses (other than from the R&W Policy), in each case, calculated net of any actual collection costs and reserves, Taxes, expenses, deductibles or premium adjustments or retrospectively rated premiums (as determined in good faith by an Indemnified Person) incurred or paid to procure such recoveries, (2) the amount of any Tax Benefits realized by the Indemnified Persons in the taxable year in which the Indemnifiable Losses are incurred or the following taxable year that are attributable to NAI-1503806643v11 any deduction, loss, credit or other Tax Benefit resulting directly from such Indemnifiable Losses, and (3) any indemnity, contribution or other similar payment actually recovered by the Indemnified Persons from any third party with respect to such Indemnifiable Losses (other than those covered by clause (1) of this Agreement shall not exceed $200,000 (the “Cap”sentence); provided, however: (i) the Cap shall not apply to Losses for breaches of Sections 3.01 and 3.02, in which case the maximum amount of available recourse for Losses shall equal the sum that none of the Purchase Price and Indemnified Persons shall have any Royalty Payments obligation to (A) seek recovery against any insurance policies (other than from the R&W Policy as provided herein) or to enforce such third party contractual indemnification or contribution provisions, or (B) obtain insurance coverage or other third party protection with respect to any particular matter. To the extent that become due after any amounts are recovered by an indemnification claim is made; and (ii) Indemnified Person following the Cap shall not apply to offsets for payment of any Indemnifiable Losses against Royalty Payments as set forth in Section 6.07, in which case the maximum amount of recourse to offset for Losses against Royalty Payments as set forth in Section 6.07 shall equal that would have reduced the amount of Royalty Payments that become due after an Indemnifiable Losses pursuant to clauses (1), (2) or (3) of the immediately preceding sentence, such recovered amounts shall be promptly delivered to the Paying Agent for further distribution to the Escrow Participants or, to the extent such amounts have been distributed from escrow, back to such escrow. The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, pursue recovery from the D&O Tail Policy for any and all claims arising from the Surviving Corporation’s indemnification claim is madeobligations with respect to the Company Indemnified Parties.
(ck) Payments by an Indemnifying Party pursuant The parties acknowledge the applicability of the common law duty to Section 6.02 mitigate Indemnifiable Losses.
(l) No Indemnified Person shall be entitled to double recovery for any adjustments to the Merger Consideration provided for hereunder or Section 6.03 for any Indemnifiable Losses even though such Indemnifiable Losses may have resulted from the breach of more than one of the representations, warranties, agreements and covenants in this Agreement. No Indemnified Person shall be entitled to indemnification under this Agreement in respect of any Loss shall be limited Indemnifiable Losses to the amount extent such Indemnifiable Losses were taken into account in the calculation of, and reduced the value of any liability or damage that remains after deducting therefrom any insurance proceeds in respect components (E), (F), (G), and (H) of any such claimthe Merger Consideration.
(dm) In no event shall any Indemnifying Party Indemnified Person be liable entitled to any Indemnified Party recover under this Article VII for any punitiveof the following:
(1) Any Indemnifiable Losses that, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity at the time the Claims Certificate relating to such Indemnifiable Losses is delivered to the breach Representative, are (A) contingent, unless and solely to the extent that such Indemnifiable Losses cease to be contingent within 90 days of the expiration of the applicable survival period set forth in Section 7.1 for the representation, warranty or alleged breach of this Agreementcovenant that is the basis for the claim for Indemnifiable Losses, or diminution (B) otherwise not capable of value or any damages based on any type of multiplebeing quantified, unless and solely to the extent that such damages are included as part Indemnifiable Losses become capable of a third party claim against the Indemnified Party.being quantified;
(e2) Each Indemnified Party shall taketo the extent that any amount of the Indemnifiable Losses is reflected as a liability in the Closing Balance Sheet and/or was taken into account in the calculation of the Merger Consideration by reason of the final determination of the Final Closing Indebtedness, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected tothe Final Transaction Expenses, or does, give rise thereto, including incurring costs only the Final Working Capital (or estimates thereof in the event that Parent does not deliver a Closing Statement to the minimum extent necessary to remedy the breach that gives rise to such Loss.Representative in accordance with Section 2.10(c)). NAI-1503806643v11
Appears in 1 contract
Samples: Agreement and Plan of Merger (Advanced Energy Industries Inc)
Limitations on Indemnification; Exclusive Remedy. (a) Subject to Section 7.13 Recovery by Indemnified Persons of their Losses in the parties acknowledge and agree that their sole and exclusive remedy with respect to any and all claims (other than claims arising from fraud or intentional misrepresentation on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating aggregate will be subject to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in this Article VI. In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted under applicable Laws, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective representatives arising under or based upon any Laws, except pursuant to the indemnification provisions set forth in this Article VI.following limitations:
(b1) Other than in the case of a breach of Sections 3.01 or 3.02, the Seller and Xx. Xxxxx shall The Indemnifying Securityholders will not be liable to the Purchaser Indemnified Parties Persons for any indemnification amount under Section 4.3(a)(1) until the aggregate amount of all Losses in respect of indemnification under Section 4.3(a)(1) exceeds $10,000 *** (the “Deductible”), in which event the Seller and Xx. Xxxxx shall only be required to pay or be liable for Losses in excess of the Deductible. With the exception of any offsets against Royalty Payments as set forth in Section 6.07, the maximum aggregate amount of all Losses for which the Purchaser Indemnified Parties shall be able to collect pursuant to this Agreement shall not exceed $200,000 (the “CapBasket”); provided, however: , that this limitation shall in no case apply to any Loss arising from any breach of the representations and warranties contained in Section 2.9 (iTaxes).
(2) With respect to Losses claimed under Section 4.3(a)(1) other than for misrepresentations or inaccuracies in the Fundamental Representations, an Indemnified Person may recover all of its Losses in excess of the Basket only from the Indemnification Holdback Shares.
(3) With respect to Losses claimed under Section 4.3(a)(1) for misrepresentations or inaccuracies in the Fundamental Representations, an Indemnified Person may recover all of its Losses subject to Section 4.4(a)(1) (A) from the Indemnification Holdback Shares and (B) to the extent such Losses exceed the amount claimed from the Indemnification Holdback Shares in all unresolved or unsatisfied Liability Claims, directly from each Indemnifying Securityholder according to its Holdback Percentage of such Losses, up to the Merger Consideration received by the Indemnifying Securityholder. ***CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THIS OMITTED INFORMATION.***
(4) With respect to Losses claimed under Section 4.3(a)(2), Section 4.3(a)(3), Section 4.3(a)(4), Section 4.3(a)(5) or Section 4.3(a)(6), an Indemnified Person may recover all of its Losses from (A) the Cap shall not apply Indemnification Holdback Shares and (B) to the extent such Losses exceed the amount claimed from the Indemnification Holdback Shares in all unresolved or unsatisfied Liability Claims, directly from each Indemnifying Securityholder according to its Holdback Percentage of such Losses, up to the Merger Consideration received by the Indemnifying Securityholder.
(5) With respect to Losses for breaches claimed under Section 4.3(a)(7), Section 4.3(a)(8) or Section 4.3(a)(9), an Indemnified Person may recover such Losses at its sole discretion (A) from the Indemnification Holdback Shares, (B) directly from each Indemnifying Securityholder, according to its Holdback Percentage of Sections 3.01 and 3.02such Losses, in which case the maximum amount of available recourse for Losses shall equal the sum of the Purchase Price and any Royalty Payments that become due after an indemnification claim is made; and (iiC) directly and without limitation from an Indemnifying Securityholder whose fraud or willful misrepresentation is the Cap basis for the Liability Claims under Section 4.3(a)(9).
(b) Except as otherwise required by applicable Law, the Parties shall not apply treat any indemnification payments made hereunder as an adjustment to offsets for Losses against Royalty Payments the Merger Consideration as set forth specified in Section 6.07, in which case the maximum amount of recourse to offset 1.4 for Losses against Royalty Payments as set forth in Section 6.07 shall equal the amount of Royalty Payments that become due after an indemnification claim is madeaccounting and Tax purposes.
(c) Payments by an No Indemnifying Party pursuant Securityholder will have any right of contribution, right of indemnity or other right or remedy against Parent, the Interim Surviving Entity or the Surviving Entity in connection with any indemnification obligation or any other liability to Section 6.02 which such Indemnifying Securityholder may become subject under or Section 6.03 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds in respect of any such claimconnection with this Agreement.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating Notwithstanding anything to the breach or alleged breach of contrary contained in this Agreement, nothing herein will prevent any Indemnified Person from bringing an Action for fraud or diminution of value willful misrepresentation against any Person, including any Indemnifying Securityholder, whose fraud or any damages based on any type of multiple, unless willful misrepresentation has caused such damages are included as part of a third party claim against Indemnified Person to incur Losses or has limited the Losses recoverable by such Indemnified Party.
(e) Each Indemnified Party shall takePerson in such Action, and cause its Affiliates the ability to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise recover Losses with respect to such Lossfraud or willful misrepresentation will not be limited by this Agreement.
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Limitations on Indemnification; Exclusive Remedy. (a) Subject Notwithstanding anything to the contrary in this Agreement, (i) no Indemnifying Party shall have any liability for any individual Indemnifiable Loss (or series of related Indemnifiable Losses) unless the amount of such Indemnifiable Loss (or series of related Indemnifiable Losses) exceeds $10,000 (each, a “De Minimis Claim”), and no De Minimis Claim shall be applied toward the Threshold; (ii) no Indemnifying Party shall have any liability for any Indemnifiable Losses unless and until the aggregate amount of Indemnifiable Losses for which such Indemnifying Party is responsible exceeds $1,000,000 (the “Threshold”), in which case such Indemnifying Party shall be responsible for all such Indemnifiable Losses; (iii) Parent shall not have any liability pursuant to Section 7.13 11.1(a) or Section 11.1(b) for any Indemnifiable Losses in excess of $13,000,000 in the parties acknowledge aggregate; (iv) Parent shall not have any liability pursuant to Section 11.1(c) or Section 11.1(d) for any Indemnifiable Losses in excess of $26,000,000 in the aggregate; and agree that their sole and (v) Purchaser shall not have any liability pursuant to Section 11.2(a) or (b) for any Indemnifiable Losses in excess of $26,000,000 in the aggregate. For the avoidance of doubt, there shall be no limit on Parent’s aggregate liability for Indemnifiable Losses pursuant to Section 11.1(e) or Section 11.1(f), or Purchaser’s aggregate liability for Indemnifiable Losses pursuant to Section 11.2(c).
(b) Following the Closing, the provisions of this Article 11 shall be the exclusive remedy with respect to for any and all claims (other than claims arising from fraud or intentional misrepresentation on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this AgreementAgreement or any of the other Transaction Documents (other than claims arising from an intentional breach or from fraud); provided, however, that the parties hereto agree that irreparable damage would occur if, following the Closing, any obligations pursuant to Section 5.11 were not performed in accordance with the terms thereof and, in such event, the parties shall be pursuant entitled to seek the indemnification provisions set forth remedy of specific performance of the terms thereof, in this Article VIaddition to any other remedy at law or equity. In furtherance of the foregoing, each party hereby waives, and agrees to cause its Affiliates to waive, from and after the fullest extent permitted under applicable LawsClosing, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it they may have against the any other parties hereto and their Affiliates and each of their respective representatives party or any Affiliate thereof arising under or based upon any Laws, statutory or common law or otherwise (except pursuant to the indemnification provisions set forth in this Article VI.
(b11, and other than claims arising from an intentional breach or from fraud) Other than in the case of a breach of Sections 3.01 or 3.02, the Seller and Xx. Xxxxx shall not be liable to the Purchaser Indemnified Parties for any indemnification amount until the aggregate amount of all Losses exceeds $10,000 (the “Deductible”), in which event the Seller and Xx. Xxxxx shall only be required to pay or be liable for Losses in excess of the Deductible. With the exception of any offsets against Royalty Payments as set forth in Section 6.07, the maximum aggregate amount of all Losses for which the Purchaser Indemnified Parties shall be able to collect pursuant extent relating to this Agreement shall not exceed $200,000 (the “Cap”); provided, however: (i) the Cap shall not apply to Losses for breaches of Sections 3.01 and 3.02, in which case the maximum amount of available recourse for Losses shall equal the sum or any of the Purchase Price and any Royalty Payments that become due after an indemnification claim is made; and (ii) other Transaction Documents or the Cap shall not apply to offsets for Losses against Royalty Payments as set forth in Section 6.07, in which case the maximum amount of recourse to offset for Losses against Royalty Payments as set forth in Section 6.07 shall equal the amount of Royalty Payments that become due after an indemnification claim is madetransactions contemplated hereby or thereby.
(c) Payments by an Indemnifying Party pursuant To the extent that Parent or Purchaser shall have any obligation to Section 6.02 indemnify and hold harmless any other Person hereunder, such obligation shall not include special, punitive, incidental or Section 6.03 indirect damages (and the injured party shall not recover for such amounts) for any breach or default under, or any act or omission arising out of or resulting from, this Agreement or the other Transaction Documents or the transactions contemplated hereby and thereby, under any form of action whatsoever, whether in contract or otherwise (other than indemnification for amounts paid or payable to third parties in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds in respect of any such claim.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple, unless such damages are included as part of a third party claim against the Indemnified Partyfor which indemnification hereunder is otherwise required).
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss.
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Limitations on Indemnification; Exclusive Remedy. (a) Subject The Indemnified Persons may not recover from the Escrow Fund in respect of any claim for indemnification in accordance with Section 7.2(a) unless and until Losses in accordance with Section 7.2(a) have been incurred, paid or properly accrued in an aggregate amount greater than $1,000,000 (the “Indemnification Threshold”). Notwithstanding the foregoing, the Indemnified Persons shall be entitled to Section 7.13 recover for, and the parties acknowledge and agree that their sole and exclusive remedy Indemnification Threshold shall not apply as a threshold to, any Losses with respect to any and all claims (other than claims arising from fraud or intentional misrepresentation on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of or inaccuracy in any representationrepresentation or warranty made by Systinet in Section 2.2 (a) or (b), warrantySection 2.9 or Section 2.10(j) (the “Excepted Representations”). Once the Indemnification Threshold has been exceeded, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement, Indemnified Persons shall be pursuant entitled to the indemnification provisions set forth recover only Losses in this Article VI. In furtherance excess of the foregoing, each party hereby waives, to the fullest extent permitted under applicable Laws, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective representatives arising under or based upon any Laws, except pursuant to the indemnification provisions set forth in this Article VIIndemnification Threshold.
(b) Other than No indemnification liability under this Article 7 shall attach to any party under this Agreement in the case of a breach of Sections 3.01 or 3.02, the Seller and Xx. Xxxxx shall not be liable to the Purchaser Indemnified Parties for any indemnification amount until the aggregate amount of all Losses exceeds $10,000 (the “Deductible”), in which event the Seller and Xx. Xxxxx shall only be required to pay or be liable for Losses in excess of the Deductible. With the exception respect of any offsets against Royalty Payments as set forth in Section 6.07, the maximum aggregate amount of all Losses for which the Purchaser Indemnified Parties shall be able to collect pursuant to this Agreement shall not exceed $200,000 (the “Cap”); provided, however: claim:
(i) to the Cap shall not apply to Losses for breaches of Sections 3.01 and 3.02, extent that any provision or reserve in which case the maximum amount of available recourse for Losses shall equal the sum respect of the Purchase Price and any Royalty Payments that become due after an indemnification matter giving rise to such claim is made; and has been provided for on the face of the November 30 Balance Sheet;
(ii) to the Cap shall not apply extent that the matter giving rise to offsets such claim resulted in an adjustment to the Merger Consideration based on the Actual Net Liabilities;
(iii) to the extent that such claim relates to any Loss for Losses against Royalty Payments as set forth in Section 6.07which any Indemnified Person is insured and actually recovers thereunder, in but only to the extent of net insurance proceeds actually recovered; and
(iv) to the extent that such claim relates to any Loss for which case any of any Indemnified Person collects a recovery from any third party, but only to the maximum amount extent of recourse to offset for Losses against Royalty Payments as set forth in Section 6.07 shall equal the amount of Royalty Payments that become due after an indemnification claim is madecollections actually received.
(c) Payments Except for claims based on fraud, recovery from the Escrow Fund in accordance with this Article 7 and the Escrow Agreement shall be the sole and exclusive remedy after the Effective Time for any Losses arising out of, related to or otherwise by an Indemnifying Party virtue of any breach or claim in connection with this Agreement or any certificate or writing delivered in connection with this Agreement or any transaction contemplated hereby, regardless of the cause of action; provided, however, that this Section 7.3(c) shall not limit the liability of any party for Losses arising out of, related to or otherwise by virtue of any breach or claim in connection with the agreements described on Schedule 7.3(c). No Indemnified Person shall be entitled to make any claim directly against any former holder of Systinet Capital Stock, vested but unexercised Systinet Options or Systinet Warrants after the Effective Time for any Losses arising out of, related to or otherwise by virtue of any breach or claim in connection with this Agreement or any certificate or writing delivered in connection with this Agreement or any transaction contemplated hereby, regardless of the cause of action, except for (A) claims based on fraud or (B) claims directly against a former holder of Systinet Capital Stock, vested but unexercised Systinet Options or Systinet Warrants after the Effective Time for any Losses arising out of, related to or otherwise by virtue of any breach or claim in connection with the agreements described on Schedule 7.3(c). In the event of fraud, no former holder of Systinet Capital Stock, vested but unexercised Systinet Options or Systinet Warrants shall be liable for any Losses that, together with such Person’s share, based on such Person’s contribution to the Escrow Fund, of all other Losses, in the aggregate exceed the actual proceeds received by such Person with respect to its Systinet Capital Stock, vested but unexercised Systinet Options or Systinet Warrants pursuant to Section 6.02 or Section 6.03 in respect of any Loss Article 1, other than the Person who committed such fraud, whose liability shall not be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds in respect of any such claimlimited.
(d) In no event No holder of Systinet Capital Stock, Systinet Options or Systinet Warrants shall have any Indemnifying Party be liable right of contribution, right of indemnity or other right or remedy against Mercury or the Surviving Corporation in connection with any indemnification obligation or any other liability to any Indemnified Party for any punitivewhich such holder of Systinet Capital Stock, incidental, consequential, special Systinet Options or indirect damages, including loss of future revenue Systinet Warrants may become subject under or income, loss of business reputation or opportunity relating to the breach or alleged breach of in connection with this Agreement, or diminution of value or any damages based on any type of multiple, unless such damages are included as part of a third party claim against the Indemnified Party.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss.
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Limitations on Indemnification; Exclusive Remedy. (a) Subject Any claim for indemnification by an Investor Indemnified Party pursuant to Section 7.13 6.5(a) or Section 6.6(a) or (b) or by a Company Indemnified Party pursuant to Section 6.7(a) or Section 6.8(a) or by an Axess Indemnified Party pursuant to Section 6.9(a) or Section 6.10(a), shall be received by the parties acknowledge applicable Indemnifying Party in writing within six months following the completion of the audit of the Company's fiscal year ending December 31, 2000 (and agree any such claim received after such date shall be null and void), except that their sole and exclusive remedy with respect to any and all (i) claims (other than claims arising from fraud or intentional misrepresentation on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise indemnification relating to the subject matter of this Agreementrepresentations and warranties contained in Sections 2.11, shall 2.12 and 2.14 may be pursuant to made until the indemnification provisions set forth in this Article VI. In furtherance expiration of the foregoingstatute of limitations applicable to such matters, each party hereby waives, to the fullest extent permitted under applicable Laws, any and all rights, (ii) claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise indemnification relating to the subject matter representations and warranties contained in Sections 2.1, 2.2, 2.3, 2.4 and 3.1 may be made forever and (iii) there shall be no time limit for making 44 45 any claim for such indemnification if the representation or warranty on which such claim is based was made with actual knowledge that it contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements or facts contained therein not misleading. The covenants contained in this Agreement it may have against the other parties hereto and their Affiliates and each of their respective representatives arising under or based upon any Laws, except pursuant to the indemnification provisions set forth in this Article VIshall survive forever.
(b) Other than in the case of a breach of Sections 3.01 or 3.02, the Seller and Xx. Xxxxx The Company shall not be liable to the Purchaser Investor Indemnified Parties for any indemnification amount claims under Section 6.6(a) until the aggregate cumulative amount of all Investor Indemnified Party Losses relating to such claims exceeds $10,000 (25,000, at which time the “Deductible”), in which event the Seller and Xx. Xxxxx Company shall only be required to pay or be liable only for such Losses in excess of the Deductible. With the exception of any offsets against Royalty Payments as set forth in Section 6.07, the maximum aggregate amount of all Losses for which the Purchaser Indemnified Parties shall be able to collect pursuant to this Agreement shall not exceed $200,000 (the “Cap”)such amount; provided, however: (i) that, the Cap foregoing condition and limitation on liability shall not apply to Losses for breaches of Sections 3.01 and 3.02, in which case the maximum amount of available recourse for Losses shall equal the sum claims pertaining to a breach of the Purchase Price representations or warranties contained in Sections 2.1, 2.2, 2.3 and any Royalty Payments 2.4 and provided, further, that become due after an indemnification claim is made; the foregoing condition and (ii) the Cap limitation on liability shall not apply to offsets for Losses against Royalty Payments as set forth in Section 6.07, in which case the maximum amount breach of recourse any of the representations and warranties of the Company contained herein if such representation or warranty was made with actual knowledge that it contained an untrue statement of a material fact or omitted to offset for Losses against Royalty Payments as set forth in Section 6.07 shall equal state a material fact necessary to make the amount of Royalty Payments that become due after an indemnification claim is madestatements or facts contained therein not misleading.
(c) Payments by an Indemnifying Investor shall not be liable to Company Indemnified Parties for indemnification claims under Section 6.8(a) until the cumulative amount of Company Indemnified Party pursuant Losses relating to such claims exceeds $25,000, at which time Investor shall be liable only for such Losses in excess of such amount; provided, that, the foregoing condition and limitation on liability shall not apply to claims pertaining to a breach of the representations or warranties contained in Section 6.02 or Section 6.03 in respect 3.1 and provided, further, that the foregoing condition and limitation on liability shall not apply to the breach of any Loss shall be limited of the representations and warranties of Investor contained herein if such representation or warranty was made with actual knowledge that it contained an untrue statement of a material fact or omitted to state a material fact necessary to make the amount of any liability statements or damage that remains after deducting therefrom any insurance proceeds in respect of any such claimfacts contained therein not misleading.
(d) Investor shall not be liable to Axess Indemnified Parties for indemnification claims under Section 6.9(a) until the cumulative amount of Company Indemnified Party Losses relating to such claims exceeds $25,000, at which time Investor shall be liable only for such Losses in excess of such amount and provided, further, that the foregoing condition and limitation on liability shall not apply to the breach of any of the representations and warranties of Investor contained herein if such representation or warranty was made with actual knowledge that it contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements or facts contained therein not misleading.
(e) Axess shall not be liable to Company Indemnified Parties for indemnification claims under Section 6.7(a) until the cumulative amount of Company Indemnified Party Losses relating to such claims exceeds $25,000, at which time Axess shall be liable only for such Losses in excess of such amount; and provided, further, that the foregoing condition and limitation on liability shall not apply to the breach of any of the representations and warranties of Investor contained herein if such representation or warranty was made with actual knowledge that it contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements or facts contained therein not misleading.
(f) Axess shall not be liable to Investor Indemnified Parties for indemnification claims under Section 6.6(a) until the cumulative amount of Investor Indemnified Party Losses relating to such claims exceeds $100,000, at which time Axess shall be liable only for such Losses in excess of such amount; and Axess shall not be liable to Investor Indemnified Parties for indemnification claims under Section 6.6(b) until the cumulative amount of Investor Indemnified Party Losses relating to such claims exceeds $1,000,000, at which time Axess shall be liable only to the extent such Losses exceed $1,000,000 but are less than $2,000,000 provided, that, the foregoing condition and limitation on liability in this paragraph (e) shall not apply to the breach of any of the representations and warranties of Investor contained herein if such representation or warranty was made with actual knowledge that it contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements or facts contained therein not misleading.
(g) The Company shall not be liable to Axess Indemnified Parties for indemnification claims under Section 6.6(a) until the cumulative amount of Investor Indemnified Party Losses relating to such claims exceeds $25,000, at which time the Company shall be liable only for such Losses in excess of such amount; and provided that the foregoing condition and limitation on liability shall not apply to the breach of any of the representations and warranties of the Company contained herein if such representation or warranty was made with actual knowledge that it contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements or facts contained therein not misleading.
(h) The indemnification provisions of this Article VI shall be the exclusive remedy hereunder following the Closing for claims between the Company, the Investor and Axess, as the case may be, except for the remedy of specific performance as provided in Section 7.3 or unless there has been an instance of fraud or willful breach of the provisions hereof. In no event shall any Indemnifying Party officer of Investor or Axess be personally liable to any Indemnified Party for any punitiveas a result of Investor's or Axess' entry into, incidentalor the consummation of the transactions contemplated by, consequential, special or indirect damages, including loss this Agreement. In the event of future revenue or income, loss willful breach by the Company of business reputation or opportunity relating its obligations hereunder prior to the breach or alleged breach of this AgreementClosing, or diminution of value or Investor shall be entitled to recover from the Company Investor's costs and reasonable attorneys' fees in connection with any suit to recover damages based on any type of multiple, unless suffered in connection with such damages are included as part of a third party claim against the Indemnified Partybreach.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss.
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