Limitations on Indemnification Obligations of the Company. The obligations of the Company pursuant to the provisions of Section 8.1 are subject to the following limitations: (a) The Company’s representations and warranties in Article III, and the Purchaser Indemnitees’ corresponding rights to indemnification pursuant to Section 8.1(a), will survive the Closing (and none will merge into any instrument of conveyance), regardless of any investigation by any Party and survive until the date that is ninety (90) days after the Closing Date. provided, however, that if, at any time prior to the expiration of such representations and warranties, any Purchaser Indemnitee (acting in good faith) delivers to the Company a written notice alleging the existence of an inaccuracy in or a breach of any of the representations and warranties made by the Company (and setting forth in reasonable detail the basis for such Purchaser Indemnitee’s belief that such an inaccuracy or breach exists) and asserting a claim for recovery under Section 8.1 or prospective recovery under Section 8.1 based on such alleged inaccuracy or breach, then the claim asserted in such notice shall survive until such time as such claim is fully and finally resolved. (b) Except in the case of Fraud, the Purchaser Indemnitees will not be entitled to recover under Section 8.1(a) for inaccuracies, breaches or alleged inaccuracies or breaches of the Business Warranties until the total amount that Purchaser Indemnitees would recover under Section 8.1(a) but for this Section 8.2(b) exceeds Fifty Thousand Dollars ($50,000.00) (the “Basket”). If such amount exceeds the Basket, then the Purchaser Indemnitees will be entitled to recover all Damages including the amount of the Basket. (c) Except in the case of Fraud, the Purchaser Indemnitees will not be entitled to recover under Section 8.1(a) for inaccuracies, breaches or alleged inaccuracies or breaches of the representations and warranties for the amount of Damages in the aggregate in excess of the Holdback (or the remaining amount of the Holdback). (d) The amount of any indemnity provided in Section 8.1 shall be computed net of any insurance proceeds actually received by a Purchaser Indemnitee connection with or as a result of any claim giving rise to an indemnification claim under Section 8.1 (reduced by any retroactive premium increase and further reduced by the net present value of any other premium increase resulting therefrom) and net of any reimbursements that are actually received by a
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Samples: Asset Purchase Agreement, Asset Purchase Agreement (Entropic Communications Inc), Asset Purchase Agreement (Entropic Communications Inc)
Limitations on Indemnification Obligations of the Company. The obligations of the Company pursuant to the provisions of Section 8.1 6.1 are subject to the following limitations:
(a) The Company’s representations and warranties in Article III, and the Purchaser Indemnitees’ corresponding rights to indemnification pursuant to Section 8.1(a6.1(a), will survive the Closing (and none will merge into any instrument of conveyance), regardless of any investigation by any Party and survive ) until the date that is ninety the earlier of (90i) days 20 months after the Closing Date or (ii) 12 months after the Product Acceptance Date. ; provided, however, that if, at any time prior to the expiration of such the representations and warrantieswarranties in Article III, any Purchaser Indemnitee (acting in good faith) delivers to the Company a written notice Claim Notice alleging the existence of an inaccuracy in or a breach of any of the representations and warranties made by the Company (and setting forth in reasonable detail the basis for such Purchaser Indemnitee’s belief that such an inaccuracy or breach exists) and asserting a claim for recovery under Section 8.1 or prospective recovery under Section 8.1 based on such alleged inaccuracy or breach6.1(a) for which the Purchaser Indemnitee reasonably expects to incur Damages, then the claim asserted in such notice shall survive until such time as such claim is fully and finally resolved. If the claim with respect to which such Claim Notice is given has been definitively withdrawn or resolved in favor of the Company, the Purchaser Indemnitee will promptly so notify the Company.
(b) Except in the case of Fraud, the The Purchaser Indemnitees will not be entitled to recover under Section 8.1(a) for inaccuracies, breaches or alleged inaccuracies or breaches of the Business Warranties until the total amount that Purchaser Indemnitees would recover under Section 8.1(a) but for this Section 8.2(b) exceeds Fifty Thousand Dollars ($50,000.00) (the “Basket”). If such amount exceeds the Basket, then the Purchaser Indemnitees will be entitled to recover all Damages including the amount of the Basket.
(c) Except in the case of Fraud, the Purchaser Indemnitees will not be entitled to recover under Section 8.1(a6.1(a) for inaccuracies, breaches or alleged inaccuracies or breaches of the representations and warranties in Article III until the total amount that Purchaser Indemnitees would recover under Section 6.1(a) but for this Section 6.2(b) exceeds $50,000 (the “Company Basket”). If such amount of exceeds the Company Basket, then the Purchaser Indemnitees will be entitled to recover all Damages in the aggregate in excess of the Holdback Company Basket.
(c) Except with respect to claims arising from (i) fraud, (ii) any Retained Liability or Excluded Asset, (iii) any breach by the Company of, or failure by the Company to comply with the covenants or obligations of the Company under Section 5.4(i), (iv) any breach by the Company of, or failure by the Company to comply with the covenants or obligations of the Company under Sections 5.1, 5.2, 5.4(b) or 5.4(j) or (v) any inaccuracy of or breach of any of the Company’s representations and warranties set forth in Sections 3.2, 3.4, 3.7 or 3.15 (subsections (i) through (iii), collectively, the “Critical Claims”, and subsections (iv) and (v), collectively, the “Fundamental Claims”), (a) prior to the funding of the Escrow Account in accordance with Section 1.10 (or in the remaining event that the Escrow Account is never funded pursuant to the terms of this Agreement), the aggregate Liability of the Company under this Article VI shall not exceed $2,000,000, and (b) in the event the Escrow Account is funded in accordance with Section 1.10, the Purchaser Indemnitees will only be entitled to assert claims under this Article VI against the Escrow Account up to the aggregate Escrow Amount, which, except as otherwise set forth in this Section 6.2(c), will represent the sole and exclusive remedy of the Purchaser Indemnitees for any claims under this Agreement. The aggregate Liability of the Company under this Article VI for Fundamental Claims shall not exceed the aggregate amount of the Holdback)Purchase Price paid to the Company by Purchaser; provided, however, that for purposes of this Section 6.2(c) only, the full Escrow Amount will be deemed actually paid by Purchaser upon its deposit with the Escrow Agent, irrespective of any subsequent deduction or release therefrom. There shall be no limit on the aggregate Liability of the Company under this Article VI for Critical Claims.
(d) The amount representations and warranties made by the Company, and the covenants and obligations of any indemnity provided in Section 8.1 the Company, and the rights and remedies that may be exercised by the Purchaser Indemnitees, shall not be computed net of any insurance proceeds actually received limited or otherwise affected by a Purchaser Indemnitee connection with or as a result of any claim giving rise to an indemnification claim under Section 8.1 (reduced information furnished to, or any investigation made by or Knowledge of, any retroactive premium increase and further reduced by of the net present value Purchaser Indemnitees or any of any other premium increase resulting therefrom) and net of any reimbursements that are actually received by atheir representatives.
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Limitations on Indemnification Obligations of the Company. The obligations of the Company pursuant to the provisions of Section 8.1 are subject to the following limitations:
(a) The Company’s representations and warranties in Article III, and the Purchaser Indemnitees’ corresponding rights to indemnification pursuant to Section 8.1(a), will survive the Closing (and none will merge into any instrument of conveyance), regardless of any investigation by any Party and survive until the date that is ninety (90) days after the Closing Date. provided, however, that if, at any time prior to the expiration of such representations and warranties, any Purchaser Indemnitee (acting in good faith) delivers to the Company a written notice alleging the existence of an inaccuracy in or a breach of any of the representations and warranties made by the Company (and setting forth in reasonable detail the basis for such Purchaser Indemnitee’s belief that such an inaccuracy or breach exists) and asserting a claim for recovery under Section 8.1 or prospective recovery under Section 8.1 based on such alleged inaccuracy or breach, then the claim asserted in such notice shall survive until such time as such claim is fully and finally resolved.
(b) Except in the case of Fraud, the Purchaser Indemnitees will not be entitled to recover under Section 8.1(a) for inaccuracies, breaches or alleged inaccuracies or breaches of the Business Warranties until the total amount that Purchaser Indemnitees would recover under Section 8.1(a) but for this Section 8.2(b) exceeds Fifty Thousand Dollars ($50,000.00) (the “Basket”). If such amount exceeds the Basket, then the Purchaser Indemnitees will be entitled to recover all Damages including the amount of the Basket.
(c) Except in the case of Fraud, the Purchaser Indemnitees will not be entitled to recover under Section 8.1(a) for inaccuracies, breaches or alleged inaccuracies or breaches of the representations and warranties for the amount of Damages in the aggregate in excess of the Holdback (or the remaining amount of the Holdback).
(d) The amount of any indemnity provided in Section 8.1 shall be computed net of any insurance proceeds actually received by a Purchaser Indemnitee connection with or as a result of any claim giving rise to an indemnification claim under Section 8.1 (reduced by any retroactive premium increase and further reduced by the net present value of any other premium increase resulting therefrom) and net of any reimbursements that are actually received by aof
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Samples: Asset Purchase Agreement (Trident Microsystems Inc)
Limitations on Indemnification Obligations of the Company. The obligations of the Company pursuant to the provisions of Section 8.1 6.1 are subject to the following limitations:
(a) The Company’s representations and warranties in Article III, and the Purchaser Indemnitees’ corresponding rights to indemnification pursuant to Section 8.1(a6.1(a), will survive the Closing (and none will merge into any instrument of conveyance), regardless of any investigation by any Party and survive ) until the date that is ninety (90) days 12 months after the Closing; provided, however, that the representations and warranties in Section 3.12(c), and the Purchaser Indemnitees’ corresponding rights to indemnification pursuant to Section 6.1(a), will survive the Closing Date. provided(and none will merge into any instrument of conveyance) until the date that is 18 months after the Closing; provided further, however, that if, at any time prior to the applicable expiration of such the representations and warrantieswarranties in Article III, any Purchaser Indemnitee (acting in good faith) delivers to the Company a written notice Claim Notice alleging the existence of an any inaccuracy in or a breach of any of the representations and warranties made by the Company (and setting forth in reasonable detail the basis for such Purchaser Indemnitee’s belief that such an inaccuracy or breach exists) and asserting a claim for recovery under Section 8.1 or prospective recovery under Section 8.1 based on such alleged inaccuracy or breach6.1(a) for which the Purchaser Indemnitee reasonably expects to incur Damages, then the claim asserted in such notice shall survive until such time as such claim is fully and finally resolved. If the claim with respect to which such Claim Notice is given has been definitively withdrawn or resolved in favor of the Company, the Purchaser Indemnitee will promptly so notify the Company.
(b) Except in the case of Fraud, the The Purchaser Indemnitees will not be entitled to recover under Section 8.1(a) for inaccuracies, breaches or alleged inaccuracies or breaches of the Business Warranties until the total amount that Purchaser Indemnitees would recover under Section 8.1(a) but for this Section 8.2(b) exceeds Fifty Thousand Dollars ($50,000.00) (the “Basket”). If such amount exceeds the Basket, then the Purchaser Indemnitees will be entitled to recover all Damages including the amount of the Basket.
(c) Except in the case of Fraud, the Purchaser Indemnitees will not be entitled to recover under Section 8.1(a6.1(a) for inaccuracies, breaches or alleged inaccuracies or breaches of the representations and warranties in Article III until the total amount that Purchaser Indemnitees would recover under Section 6.1(a) but for this Section 6.2(b) exceeds $25,000 (the “Company Basket”). If such amount of exceeds the Company Basket, then the Purchaser Indemnitees will be entitled to recover all Damages in the aggregate in excess of the Holdback Company Basket.
(c) Except with respect to claims arising from (i) fraud, (ii) any Retained Liability or the remaining amount Excluded Asset or (iii) any inaccuracy of or breach of any of the HoldbackCompany’s representations and warranties set forth in Sections 3.2, 3.4 or 3.7 , the aggregate Liability of the Company under this Article VI shall not exceed (x) $1,000,000 only with respect to Damages arising from a third-party Proceeding filed within 18 months after the Closing and arising from an inaccuracy of or breach of the Company’s representations and warranties in Section 3.12(c) and (y) $200,000 for all other claims under this Article VI, which, except as otherwise set forth in this Section 6.2(c), in each case will represent the sole and exclusive remedy of the Purchaser Indemnitees for any claims under this Agreement.
(d) The amount representations and warranties made by the Company, and the covenants and obligations of any indemnity provided in Section 8.1 the Company, and the rights and remedies that may be exercised by the Purchaser Indemnitees, shall not be computed net of any insurance proceeds actually received limited or otherwise affected by a Purchaser Indemnitee connection with or as a result of any claim giving rise to an indemnification claim under Section 8.1 (reduced information furnished to, or any investigation made by or Knowledge of, any retroactive premium increase and further reduced by of the net present value Purchaser Indemnitees or any of any other premium increase resulting therefrom) and net of any reimbursements that are actually received by atheir representatives.
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Limitations on Indemnification Obligations of the Company. The obligations of the Company pursuant to the provisions of Section 8.1 9.1 are subject to the following limitations:
(a) The Company’s representations and warranties in Article III, and the Purchaser Indemnitees’ corresponding rights to indemnification pursuant to Section 8.1(a9.1(a), will survive the Closing (and none will merge into any instrument of conveyance), regardless of any investigation by any Party Party, as follows:
(i) The representations and warranties made in Section 3.1 (Organization), Section 3.2 (Power and Authority), Section 3.3 (Enforceability), Clause (a)(i) of Section 3.5 (No Conflicts), Section 3.7 (Subsidiaries), the first sentence of Section 3.11 (Title to Assets), Section 3.33 (Brokers) (collectively, the “Fundamental Warranties”) will survive indefinitely.
(ii) The representations and warranties made in Section 3.26 (Taxes) will survive until the date that is ninety thirty (9030) days after the Closing Date. provided, however, that if, at any time prior to the expiration of such representations and warranties, any Purchaser Indemnitee the applicable statute of limitations (acting in good faiththe “Extended Warranties”).
(iii) delivers to the Company a written notice alleging the existence of an inaccuracy in or a breach of any of the All representations and warranties made by in Article III other than the Company Fundamental Warranties and Extended Warranties (and setting forth in reasonable detail the basis for such Purchaser Indemnitee’s belief that such an inaccuracy or breach exists“Business Warranties”) and asserting a claim for recovery under Section 8.1 or prospective recovery under Section 8.1 based on such alleged inaccuracy or breach, then the claim asserted in such notice shall will survive until such time as such claim the date that is fully and finally resolvedeighteen (18) months after the Closing Date.
(b) Except in the case of Fraud, the The Purchaser Indemnitees will not be entitled to recover under Section 8.1(a9.1(a) for inaccuracies, breaches or alleged inaccuracies or breaches of the Fundamental, Business and Extended Warranties until the total amount that the Purchaser Indemnitees would recover under Section 8.1(a9.1(a) but for this Section 8.2(b9.2(b) exceeds Fifty Thousand Two Million Dollars ($50,000.002,000,000) (the “Basket”). If such amount exceeds the Basket, then the Purchaser Indemnitees will only be entitled to recover all Damages including the amount of Damages recoverable under Section 9.1(a) in excess of the Basket.
(c) Except in the case of Fraud, the The Purchaser Indemnitees will not be entitled to recover under Section 8.1(a9.1(a) for inaccuracies, breaches or alleged inaccuracies or breaches of (i) the representations Business and warranties Extended Warranties for the amount of Damages in the aggregate in excess of Ten Million Dollars ($10,000,000) and (ii) the Fundamental Warranties for the amount of Damages in the aggregate in excess of the Holdback (or the remaining amount of the Holdback)Purchase Price.
(d) The amount of any indemnity provided in Section 8.1 9.1 shall be computed net of any insurance proceeds actually received by a Purchaser Indemnitee connection with or as a result of any claim giving rise to an indemnification claim under Section 8.1 9.1 (reduced by any retroactive premium increase and further reduced by the net present value of any other premium increase resulting therefrom) and net of any reimbursements that are actually received by aa Purchaser Indemnitee in connection with such Damages or the circumstances giving rise thereto. If the indemnity amount is paid prior to the Purchaser Indemnitee’s actual receipt of insurance proceeds related thereto, and a Purchaser Indemnitee subsequently receives such insurance proceeds, then the Purchaser Indemnitee shall promptly pay to the Company the amount of insurance proceeds subsequently received (net of all related costs, expenses and other Damages), but not more, in the aggregate, than the indemnity amount paid by the Company to such Purchaser Indemnitee in respect of such claim.
(e) If any potential indemnification claims shall arise by reason of a Liability that is contingent only, then the Company shall not be obligated to make any payments for Damages pursuant to such claim until the contingent Liability becomes an actual Liability.
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Limitations on Indemnification Obligations of the Company. The obligations of the Company pursuant to the provisions of Section 8.1 9.1 are subject to the following limitations:
(a) The Company’s representations and warranties in Article III, and the Purchaser Indemnitees’ corresponding rights to indemnification pursuant to Section 8.1(a9.1(a), will survive the Closing (and none will merge into any instrument of conveyance), regardless of any investigation by any Party Party, as follows:
(i) The representations and warranties made in Section 3.1 (Organization), Section 3.2 (Power and Authority), Section 3.3 (Subsidiaries), Section 3.4 (Enforceability), clause (a)(i) of Section 3.6 (No Conflicts), Section 3.18(c) (Employee Benefits) and Section 3.27 (Brokers), (collectively, the “Company Fundamental Warranties”) will survive indefinitely;
(ii) The representations and warranties made in Section 3.22 (Taxes) will survive until the date that is ninety five (905) days years after the Closing Date (the “Company Extended Warranties”);
(iii) All representations and warranties made in Article III, other than (x) the Company Fundamental Warranties and (y) the Company Extended Warranties (collectively, the “Company Business Warranties”) will survive until the date that is twenty-four (24) months after the Closing Date. ; provided, however, that if, at any time prior to the expiration of such representations and warrantiesthe Company Extended Warranties or the Company Business Warranties, any Purchaser Indemnitee (acting in good faith) delivers to the Company a written notice alleging the existence of an inaccuracy in or a breach of any of the representations and warranties made by the Company (and setting forth in reasonable detail the basis for such Purchaser Indemnitee’s belief that such an inaccuracy or breach exists) and asserting a claim for recovery under Section 8.1 9.1 or prospective recovery under Section 8.1 9.1 based on such alleged inaccuracy or breach, then the claim asserted in such notice shall survive until such time as such claim is fully and finally resolved.
(b) Except in the case of Fraud, the The Purchaser Indemnitees will not be entitled to recover under Section 8.1(a9.1(a) for inaccuracies, breaches or alleged inaccuracies or breaches of the Company Business Warranties or the Company Extended Warranties until the total amount that Purchaser Indemnitees would recover under Section 8.1(a9.1(a) but for this Section 8.2(b9.2(b) exceeds Fifty Thousand Dollars (i) $50,000.00) 1,500,000 (the “BasketDeductible”). If such amount exceeds the Basket, then the ; or (ii) with respect to any Damages sustained or incurred by any Purchaser Indemnitees will be entitled Indemnitee arising from or related to recover all Damages including the amount of the Basket.
(c) Except in the case of Fraud, the Purchaser Indemnitees will not be entitled to recover under Section 8.1(a) for inaccuracies, breaches or alleged inaccuracies or breaches of the representations and warranties set forth in Section 3.19(h), $500,000 (the “Sub-Deductible”), provided that only $250,000 of the Sub-Deductible shall apply toward the achievement of the Deductible. If such amount exceeds the Deductible or the Sub-Deductible, as applicable, then the Purchaser Indemnitees will be entitled to recover only Damages in excess of such Deductible or Sub-Deductible.
(c) The Purchaser Indemnitees will not be entitled to recover under Section 9.1(a) for inaccuracies, breaches or alleged inaccuracies or breaches of the amount Company Business Warranties or the Company Extended Warranties for Damages in the aggregate in excess of $50,000,000 (the “Cap”); provided, further that in no event will the Purchaser Indemnitees be entitled to recover under Section 9.1 for Damages in the aggregate in excess of the Holdback Purchase Price (or the remaining amount of the Holdback“Aggregate Cap”).
(d) The amount Purchaser Indemnitees will not be entitled to recover under Section 9.1(a) for inaccuracies, breaches or alleged inaccuracies or breaches of any indemnity provided in Section 8.1 shall be computed net of the Company’s representations and warranties relating to Taxes for any insurance proceeds actually received by a Purchaser Indemnitee connection with or as a result of any claim giving rise to an indemnification claim under Section 8.1 (reduced by any retroactive premium increase and further reduced by the net present value of any other premium increase resulting therefrom) and net of any reimbursements Damages that are actually received by aattributable to Taxes for any Tax period beginning after the Closing Date or any Post-Closing Straddle Period.
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