Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap. (b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3. (c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration. (d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach. (e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded. (f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation. (g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3. (h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach). (i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 3 contracts
Samples: Merger Agreement (TPCO Holding Corp.), Merger Agreement (TPCO Holding Corp.), Merger Agreement (TPCO Holding Corp.)
Limitations. (a) In the case of No Party shall have any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (Surviving Agreement Default unless the Party or Parties claiming against such Party shall have delivered to such first-mentioned Party a “Parent General Claim”), the aggregate liability Notice of the Parent Indemnified Parties Claim respecting such Surviving Agreement Default. A claim for all such claims Losses made under this Agreement for which a Notice of Claim has been given shall be capped at the General Representation Capsubject to limitations of action laws as provided for in Section 3.3.
(b) In Losses for which any Party is entitled to claim for under this Agreement shall be reduced by the case amount of such Losses that are actually reimbursed by insurance proceeds, net of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a)co-payments and increased premiums resulting from such Losses; provided, (ii) any however, that the possibility of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share receipt of any Damages resulting therefrom, provided that the aggregate such insurance proceeds shall not delay or reduce any Party’s obligations to pay in full such Party’s liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable and indemnity obligations under this Agreement when due (subject to the Company Members pursuant appropriate reimbursement to Section 2.3such Party if and when applicable insurance proceeds are actually received as above contemplated).
(c) Subject No claims may be made by any Party with respect to Section 10.4(d), in no event shall any Company Member have liability pursuant Losses unless the aggregate of any and all Losses which a Party would be required to indemnify the Party seeking such indemnification (without reference to this Article 10 in excess section) exceeds $50,000. If the aggregate of all such Losses exceeds such $50,000 threshold, the Merger Consideration payable (inclusive Party seeking indemnification shall be entitled to claim and recover compensation for all such Losses, including the amount of such $50,000 threshold, from the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying other Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrarycontrary implied or contained elsewhere in this Agreement or the Transaction Documents, there New Hydrogenics shall be have no maximum liability for any Company Member or Parent Indemnified Party who committedobligation to indemnify or otherwise compensate HCo in respect of TOB Losses, participated other than Claims related to the disclosure related to HCo contained in or had actual knowledge of fraud, intentional misrepresentation or willful breachthe Offer Documents.
(e) No Parent Indemnified Party may recover any Damages Other than as a result of fraud or wilful misrepresentation, notwithstanding anything to the contrary implied or contained elsewhere in this Agreement or in the Transaction Documents (with the exception of Section 2.1 hereof), New Hydrogenics shall have no liability or obligation to indemnify or otherwise compensate the Indemnitees in respect of General Representation Claims unless and until Damages any reduction of the Tax Pools or any inability of the Indemnitees to utilize all or any portion of the Tax Pools to reduce any of Indemnitees’ respective liability under the ITA or any comparable legislation of a Canadian province or territory, including, without limitation, in the aggregate under all Claims event that have been incurredsuch inability is due to any change in, paid proposed change in, or properly accrued exceed $287,500 (the “Deductible”)effect of applicable Law, in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether including on a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregardedretroactive basis.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary implied or contained elsewhere in this Agreement, under including Section 2.1, New Hydrogenics shall have no circumstances will liability or obligation to indemnify or otherwise compensate any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to of the extent such punitive damages are awarded to a third party or Indemnitees in excess of the case sum of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnificationthe Initial Liability, compensation (ii) the Additional Amount, and (iii) the Post Closing Amount, in respect of any breach (including any failure or reimbursement set forth inaccuracy) of any of the representations and warranties or covenants of HCo and/or New Hydrogenics contained in this Agreement shall not be affected by any investigation conducted by Parentthe Support Agreement, including without limitation in section 3.2(i) therein, related to, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance in connection with, the Tax Pools or any representation, warranty, covenant, agreement ability of the Indemnitees to utilize all or obligation or any portion of the existence of facts and circumstances that provide the basis for a Claim hereunderTax Pools.
Appears in 3 contracts
Samples: Support Agreement (Hydrogenics Corp), Support Agreement (Hydrogenics Corp), Support Agreement (Hydrogenics Corp)
Limitations. (a) In the case of any General Representation Claim, each Company Member No indemnity shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that payable to the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Atlas Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a8.2(a) with respect to any Fundamental Representation claim resulting from any breach or inaccuracy of any certifications made with respect thereto pursuant to representation or warranty, unless and until the aggregate of all Losses due from APL exceeds $8,040,000, in which event all Losses so due in excess of such amount shall be paid in full by APL; provided that the aggregate amount payable by APL under Section 8.2(a), (ii) with respect to claims resulting from any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid breach or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach inaccuracy of a representation or warranty has occurredwarranty, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matternot exceed $40,200,000. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will APL shall not be required to indemnify any Atlas Indemnified Party with respect to any Loss (or series of related Losses) incurred by or asserted by reason of any breach of any representation, warranty or covenant contained in this Agreement if the Loss (or series of related Losses) from such breach is less than $50,000, nor shall any such Losses be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or included in the case calculation of fraud, intentional misrepresentation or willful breachthe amounts specified in this Section 8.5(a).
(i) . The rights to indemnification, compensation or reimbursement limitations set forth in this Agreement Section 8.5(a) shall not apply with respect to the representations and warranties set forth in Sections 3.2 and 3.8.
(b) No indemnity shall be affected payable to the APL Indemnified Parties under Section 8.3(a) with respect to any claim resulting from any breach or inaccuracy of any representation or warranty, unless and until the aggregate of all Losses due from Atlas exceeds $8,040,000, in which event all Losses so due in excess of such amount shall be paid in full by any investigation conducted Atlas; provided that the aggregate amount payable by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing DateAtlas under Section 8.3(a), with respect to the accuracy claims resulting from any breach or inaccuracy ofof a representation or warranty, shall not exceed $40,200,000. Notwithstanding anything to the contrary contained in this Agreement, Atlas shall not be required to indemnify any APL Indemnified Party with respect to any Loss (or compliance with, series of related Losses) incurred by or asserted by reason of any breach of any representation, warrantywarranty or covenant contained in this Agreement if the Loss (or series of related Losses) from such breach is less than $50,000, covenant, agreement or obligation or nor shall any such Losses be included in the existence calculation of facts the amounts specified in this Section 8.5(b). The limitations set forth in this Section 8.5(b) shall not apply with respect to the representations and circumstances that provide the basis for a Claim hereunderwarranties set forth in Section 4.4.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Atlas Energy, Inc.), Purchase and Sale Agreement (Atlas Pipeline Holdings, L.P.), Purchase and Sale Agreement (Atlas Pipeline Partners Lp)
Limitations. The Defending Party's obligations to indemnify the Asserting Party pursuant to this Article XIII shall be subject to the following limitations:
(a) In the case of No indemnification under Sections 13.01(a) or 13.02(a) for any General Representation Claim, each Company Member Losses shall be severally required to be made by the Defending Party until the aggregate amount of the Asserting Party's Losses exceeds two percent (2%) of the Purchase Price (the "BASKET"), and not jointly liable for then indemnification shall only be required to be made by the Defending Party to the extent of such Company Member’s Pro Rata Share Losses that exceed 50% of any Damages resulting therefromthe Basket, provided that the aggregate liability foregoing limitation shall not apply to any intentional breach of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) a representation or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Capwarranty.
(b) In The aggregate liability of the case of any Claim Defending Party under Section 13.01(a) or 13.02(a), as applicable, shall not exceed (i) Section 10.2(athirty percent (30%) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a)of the Purchase Price for the first twelve months after the Closing Date, and (ii) any of clauses twenty percent (b) through (j20%) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefromthe Purchase Price thereafter, provided that the aggregate liability for the Company Members for all Claims for Special Matters foregoing limitation shall be capped at the Merger Consideration paid not apply to any intentional breach of a representation or payable to the Company Members pursuant to Section 2.3warranty.
(c) Subject The indemnification obligation of a Defending Party shall be reduced to Section 10.4(d)the extent of any available insurance proceeds payable to the Asserting Party, in no event net of any increased insurance premiums becoming payable by the Asserting Party to the extent such increase is a direct result of such insurance proceeds becoming available. The Defending Party shall any Company Member have liability pursuant to pay its indemnification obligations as and when required by this Article 10 XIII and the Asserting Party shall refund to the Defending Party any such amounts determined to be in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Defending Party’s proceeds) 's obligations due to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability reductions pursuant to this Article 10 in excess Section 13.05(c). Additionally, the Asserting Party shall refund promptly to the Defending Party any amount of the Merger ConsiderationAsserting Party's Losses that are subsequently recovered by the Asserting Party pursuant to a settlement or otherwise.
(d) Notwithstanding anything herein to the contrarycontrary set forth in this Agreement, there Section 13.05(a) through (c) shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated not apply to Purchaser's obligation to pay to ACC Tennessee the Purchase Price in or had actual knowledge of fraud, intentional misrepresentation or willful breach.accordance with Article V.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless From and until Damages in after the aggregate under all Claims that have been incurredClosing Date, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary rights contained in this Agreement, Article XIII shall constitute the sole and exclusive remedies of the parties hereunder and shall supersede and displace all other rights that either party may have under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach)Law.
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 3 contracts
Samples: Asset Purchase Agreement (American Cellular Corp /De/), Asset Purchase Agreement (Dobson Communications Corp), Asset Purchase Agreement (Acc Acquisition LLC)
Limitations. (a) In no event shall the case of any General Representation Claim, each Company Member shall Seller or the Acquiror be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a11.2(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”11.2(b), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a)as applicable, (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under amount of all Claims that have been incurred, paid or properly accrued exceed such Damages exceeds $287,500 100,000 (the “DeductibleLiability Threshold”), in which case the Parent Indemnified Parties may recover Seller or the Acquiror, as applicable, shall be liable for all such Damages in excess of the Deductible. No Company Indemnified Party may recover Liability Threshold, and then not for any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation then applicable Liability Cap for all claims made under such Section 11.2(a) or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party11.2(b), as applicable, in connection with such Damagesthe aggregate; provided, however, that: (A) for purposes of claims made by the Acquiror under Sections 11.2(a)(iii), 11.2(a)(iv) or 11.2(a)(v), the Seller shall be liable for all Damages suffered by the Acquiror without regard to the Liability Threshold or Liability Cap; (B) for purposes of claims made by the Seller under Section 11.2(b)(iii), the Acquiror shall be liable for all Damages suffered by the Seller without regard to the Liability Threshold or Liability Cap; and (C) for purposes of claims made by a party due to the other party’s fraud or willful misconduct, such party shall be liable for all Damages suffered by the other party without regard to the Liability Threshold or Liability Cap.
(b) Each party agrees that none of it shall, and shall cause the Indemnified Parties shall have any obligation applicable Indemnitees to, use its or their commercially reasonable efforts to (i) seek recovery against any secure payment from insurance policies (other than the Tail Policy) or (ii) obtain insurance available and in existence that provide coverage or other third party protection with respect to any particular matterDamages to be indemnified. Each The amount of Parent and Representative (on behalf any Damages recoverable by a party under Section 11.2 shall be reduced by the amount of any insurance proceeds actually paid to the Company Members) shall use commercially reasonable efforts Indemnified Party or the Indemnitee, as applicable, relating to mitigate Damages in accordance with the common law doctrine of mitigationsuch claim.
(gc) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES HERETO SHALL NOT EXTEND TO PUNITIVE DAMAGES OR TO ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, INCLUDING BUSINESS INTERRUPTION, LOSS OF FUTURE REVENUE, DIMINUTION IN VALUE, PROFITS OR INCOME, OR LOSS OF BUSINESS REPUTATION OR OPPORTUNITY.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Vivus Inc), Asset Purchase Agreement (Vivus Inc), Asset Purchase Agreement (Kv Pharmaceutical Co /De/)
Limitations. The Indemnifier’s obligations to indemnify the Claimant pursuant to Section 10.3 or 10.4 shall be subject to the following limitations:
(a) In The Claimant shall be entitled to indemnification only for those Damages arising with respect to any claim as to which Claimant has given the case Indemnifier written notice within the appropriate time period set forth in Section 10.2 hereof for such claim.
(b) Claimant’s Damages sought to be recovered under Section 6.3, 10.3 or 10.4 hereof shall be net of any General Representation Claiminsurance proceeds actually received by Claimant with respect to the events giving rise to such Damages. If the incurrence or payment of any such Damages makes allowable to the Indemnified Party any deduction, each Company amortization, exclusion from income or other allowance (a “Tax Benefit”) which would not, but for such adjustment, be allowable, then the indemnification payment to the Claimant under this Section 10 shall be an amount equal to (i) the amount otherwise due but for this sentence, minus (ii) the amount of Tax savings actually realized by the Claimant as a result of the Tax Benefit in the Tax year in which the Damages were incurred (a “Tax Savings”). If and to the extent that subsequent to any payment of Damages by any Indemnifier to a Claimant hereunder, such Claimant receives insurance proceeds or realizes a Tax Savings with respect to the events giving rise to such Damages, which proceeds or Tax Savings would have been netted against such Damages if they had been received prior to the Indemnifier’s payment of such Damages, then the Claimant shall remit such insurance proceeds or the amount of such Tax Savings to Indemnifier to the extent such proceeds would have been netted against such Damages.
(c) Neither ACS and its Member nor GCI and its Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefromindemnification under Section 10.3(a), provided that 10.3(e) or 10.3(g) (to the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant extent relating to Section 10.3(a) or Section 10.3(c10.3(e)) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation claims for indemnification based upon, arising out of, with respect to or by reason of fraud or any certifications made with respect thereto pursuant breach of any covenant to Section 8.2(abe performed following the Closing (the “Basket Exclusions”)), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that until the aggregate liability amount of all indemnification payments for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount which ACS and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company its Member or Parent Indemnified Party who committedGCI and its Member, participated in or had actual knowledge of fraudas the case may be, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages is liable in respect of General Representation Claims unless and until Damages in indemnification under such Sections (other than with respect to claims for indemnification based upon the aggregate under all Claims that have been incurred, paid or properly accrued exceed Basket Exclusions) exceeds $287,500 1,500,000 (the “Deductible”), in which event ACS and its Member or GCI and its Member, as the case the Parent Indemnified Parties may recover all Damages be, shall only be required to pay such indemnification payments in excess of the Deductible. No Company Indemnified Party .
(d) The aggregate amount of all indemnification payments for which ACS and its Member and the aggregate amount of all indemnification payments for which GCI and its Member shall be liable pursuant to Section 10.3(a), 10.3(e) and 10.3(g) (to the extent relating to Section 10.3(a) or 10.3(e)) (other than with respect to claims for indemnification based upon, arising out of, with respect to or by reason of the Basket Exclusions) shall not exceed $50,000,000.
(e) Neither ACS and the ACS Member nor GCI and the GCI Member shall be liable for indemnification under Section 10.3(d) or 10.3(g) (to the extent relating to Section 10.3(d)) (other than with respect to a Basket Exclusion), until the aggregate amount of all indemnification payments for which ACS and the ACS Member or GCI and the GCI Member, as the case may recover any Damages be, is liable in respect of Parent General Claims unless and until Damages in indemnification under such Sections (other than with respect to claims for indemnification based upon the aggregate under all Claims that have been incurred, paid or properly accrued exceed Basket Exclusions) exceeds $500,000 (the “CETC Claim Deductible”), in which event ACS and its Member or GCI and its Member, as the case the Company Indemnified Parties may recover all Damages be, shall only be required to pay such indemnification payments in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregardedCETC Deductible.
(f) Notwithstanding anything herein to the contrary, The Company shall not be liable for purposes of calculating or determining the amount of Damages incurred indemnification under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof10.4(d) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each a Basket Exclusion), until the aggregate amount of Parent and Representative (on behalf of all indemnification payments for which the Company Members) shall use commercially reasonable efforts to mitigate Damages is liable in accordance with the common law doctrine respect of mitigation.
indemnification under such Section (g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more other than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to claims for indemnification based upon the accuracy or inaccuracy ofBasket Exclusions) exceeds the CETC Claim Deductible, or compliance with, any representation, warranty, covenant, agreement or obligation or in which event the existence Company shall only be required to pay such indemnification payments in excess of facts and circumstances that provide the basis for a Claim hereunderCETC Deductible.
Appears in 3 contracts
Samples: Asset Purchase and Contribution Agreement (Alaska Communications Systems Group Inc), Asset Purchase and Contribution Agreement (Alaska Communications Systems Group Inc), Asset Purchase and Contribution Agreement (Gci Inc)
Limitations. The Indemnifying Party’s liability for all claims for indemnifiable Losses made under Section 7.2(a)(i) (aeach a “Claim”) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable subject to the following limitations: (x) the Indemnifying Party shall have no liability for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that individual Claim until the aggregate liability amount of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant Loss finally determined to Section 10.3(a) have been incurred or Section 10.3(c) paid equals or exceeds $50,000 (other than a claim in connection with a Fundamental Representation) (each, a “Parent General ClaimQualified Loss”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that y) the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party shall have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that amount of the Qualified Losses finally determined to have been incurred, incurred or paid or properly accrued shall exceed $287,500 [***] ([***]) of the “Deductible”)Purchase Price, in which case the Parent Indemnified Parties may recover Indemnifying Party shall be liable for all Damages in excess Qualified Losses, and (z) the Indemnifying Party’s aggregate liability for all such Losses shall not exceed [***] ([***]) of the DeductiblePurchase Price. No Company Indemnified Party may recover any Damages None of the limitations set forth in respect of Parent General Claims unless and until Damages this Section 7.3(a) shall apply in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in Losses or other indemnification matter based upon, arising out of, or relating to (i) intentional misrepresentations, fraud or criminal matters or (ii) any misrepresentation or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 3.1 (Organization, Qualification and Power), 3.2 (Authorization of Transaction), 3.5 (Title to Assets) or Section 10.33.14 (Taxes) (collectively, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages“Fundamental Representations”); provided, however, that none the Indemnifying Party’s aggregate liability for all such Losses resulting from a breach of any of the Indemnified Parties Fundamental Representations shall have not exceed the Purchase Price, inclusive of any obligation other amounts actually paid out pursuant to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except VII; provided, further, for the sake of clarity, that to the extent such punitive damages are awarded to a third party or in the case of fraudBuyer is an Indemnified Party, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis Buyer may only obtain recovery for a Loss from a Claim hereunderagainst either Seller or Vivus Real Estate, but not both, as the Indemnifying Party.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Vivus Inc), Asset Purchase Agreement (Vivus Inc)
Limitations. (a) In Neither any Seller Indemnified Party nor the Purchaser Indemnified Party shall have any liability for, or Losses be deemed to include, any special, punitive or exemplary damages, or any lost profits, whether in contract or tort, regardless of whether the other Party shall be advised, shall have reason to know, or in fact shall know of the possibility of such damages suffered or incurred by any such Seller Indemnified Party or the Purchaser Indemnified Party in connection with this Agreement any of the other Transaction Documents or any of the transactions contemplated hereby or thereby, except to the extent any such damages are actually paid to a Third Party in accordance with Section 7.3. Notwithstanding the foregoing, the limitations set forth in this Section 7.6 shall not apply to any claim for indemnification hereunder in the case of any General Representation Claimactual fraud, each Company Member intentional misrepresentation, intentional wrongful acts, intentional breach, bad faith or willful misconduct. The aggregate amount of Losses for which the Purchaser Indemnified Parties shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant entitled to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability indemnification pursuant to this Article 10 in excess of VII will not exceed [***]. The Parties acknowledge and agree that (a) the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying PartyPurchaser’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d)Losses, in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contraryif any, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages indemnifiable events under this Agreement will typically include Losses for Purchased Receivables that the Purchaser was entitled to receive in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess its ownership of the Deductible. No Company Indemnified Party may recover any Damages Purchased Receivables but did not receive timely or at all due to such indemnifiable event and (b) subject to this Section 7.6, the Purchaser shall be entitled to make indemnification claims for all such missing or delayed Purchased Receivables that the Purchaser was entitled to receive in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess its ownership of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty Purchased Receivables as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty Losses hereunder (which claims shall be disregarded.
(f) Notwithstanding anything herein to reviewed and assessed by the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement procedures set forth in this Agreement ARTICLE VII), and such missing or delayed Purchased Receivables shall not be affected by any investigation conducted by Parentdeemed special, punitive or exemplary damages, or lost profits for any knowledge acquired (or capable purpose of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderthis Agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Agenus Inc), Purchase and Sale Agreement (Ligand Pharmaceuticals Inc)
Limitations. (a) In Except as otherwise set forth herein, the case aggregate Liability of any General Representation Claim, each Company Member the Indemnifying Securityholders for Damages under Section 6.2(a) shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, exceed the Escrow Fund; provided that the aggregate liability of the Company Members for all General Representation Claims limitation set forth in this Section 6.4(a) shall be capped at the General Representation Cap. In the case of not apply to (i) any claim pursuant to Section 10.3(a6.2(a) relating to a breach of the representations and warranties set forth in Section 2.1 (Organization, Qualification and Corporate Power), Section 2.2 (Capitalization), Section 2.3 (Authorization of Transaction) or Section 10.3(c2.30 (Broker’s Fees) (other than a claim in connection with a Fundamental Representation) (a collectively, the “Parent General ClaimExcepted Representations”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In Except as otherwise set forth herein, no Indemnifying Securityholder shall be obligated to indemnify the case Indemnified Parties for Damages under Section 6.2(a) unless and until the total amount of any Claim under such Damages exceeds Fifty Thousand Dollars (i$50,000) (the “Threshold”), at which point the Indemnifying Securityholders shall be obligated to indemnify the Indemnified Parties for all Damages in excess of the Threshold; provided that the limitations set forth in this Section 10.2(a6.4(b) with respect shall not apply to any Fundamental Representation or any certifications made with respect thereto claim pursuant to Section 8.2(a6.2(a) relating to a breach of the Excepted Representations. Subsequent to determining the existence of a breach of any representation or warranty, solely for purposes of calculating the amount of Damages pursuant to this Article VI (and not for purposes for determining whether a breach has occurred), (ii) any all representations and warranties of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each the Company Member set forth in Article II shall be severally construed as if the terms “material” or “in all material respects” and not jointly liable for such any reference to “Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3Material Adverse Effect” (and variations thereof) were omitted.
(c) Subject Any payments required to Section 10.4(d), in no event shall any Company Member have liability be made to an Indemnified Party pursuant to this Article 10 in excess claims for indemnification hereunder with respect to Excepted Representations shall be made first by resort to the Escrow Fund, and second, if the balance of the Merger Consideration payable (inclusive Escrow Fund is insufficient to satisfy the entire amount of the portion payments to be made to an Indemnified Party in respect of the Holdback Amount such Excepted Representations, by seeking recourse to each Indemnifying Securityholder, severally and the Expense Fund Amount withheld from such not jointly in accordance with each Indemnifying PartySecurityholder’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger ConsiderationPro Rata Portion.
(d) All Damages recovered by the Indemnified Parties from the Escrow Fund shall be allocated among the Indemnifying Securityholders in accordance with their Pro Rata Portion of the Escrow Fund. Notwithstanding anything herein to the contrarycontrary herein, there except for claims for intentional misrepresentation, willful misconduct or fraud, no Indemnifying Securityholder shall be no maximum liability liable for any Company Member or Parent Indemnified Party who committed, participated more than the aggregate amount of Merger Consideration to be paid to such Indemnifying Securityholder (assuming the full amount of Merger Consideration (including all amounts held in or had actual knowledge of fraud, intentional misrepresentation or willful breachthe Escrow Fund) is actually paid to such Indemnifying Securityholder) pursuant to this Agreement.
(e) No Parent Indemnified Party may recover Indemnifying Securityholder shall have any Damages in respect right of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case contribution against the Company Indemnified Parties may recover all Damages in excess of or the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of Surviving Corporation with respect to any Damages in respect of the inaccuracy in or breach of any representation of the Company’s representations, warranties, covenants or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregardedagreements.
(f) Notwithstanding anything herein After the Closing, except with respect to (i) any breach or nonperformance of or noncompliance with any covenant, agreement or other obligation contained (A) in this Agreement that occurs or occurred on or prior to the contraryClosing or (B) in Article VI, for purposes (ii) any claim or liability based on, related to or arising out of, or in connection with fraud, willful misconduct or intentional misrepresentation or (iii) the equitable remedies set forth in Section 9.13, the rights of calculating the Indemnified Parties under this Article VI and the Escrow Agreement (as limited by the provisions of this Article VI) shall be the sole and exclusive remedy of the Indemnified Parties; provided, however nothing herein shall be construed to limit the remedies available to, or determining the amount of Damages incurred under Section 10.2 or Section 10.3recoverable by, there shall be deducted from any Damages an amount the Buyer for breach of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to of the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received Ancillary Agreements by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (parties thereto other than the Tail Policy) Company or, solely in their capacity as Company Stockholders or (ii) obtain insurance coverage holders of Options or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of Warrants, the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigationIndemnifying Securityholders.
(g) No Indemnified Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall be entitled to double recovery have any indemnification obligations under this Article VI, or shall otherwise liable, for any indemnifiable Damages even though the fraud or intentional misrepresentation of another Indemnifying Party of which such Damages may be recoverable under more than one provision of Section 10.2 Indemnifying Party did not have, or Section 10.3should not have had, knowledge.
(h) The amount of any Damages payable by the Indemnifying Securityholders pursuant to this Article VI shall be reduced by the amount of any insurance proceeds actually received by the Indemnified Party with respect to the Damages (net of any insurance premium increases or other costs incurred by the Indemnified Party in respect of such insurance proceeds); provided that nothing set forth in this Section 6.4(h) shall require the Indemnified Party to make an insurance claim with respect to such Damages.
(i) Notwithstanding anything to the contrary contained in this Agreementherein, under no circumstances will any (i) an Indemnified Party be entitled may not assert multiple claims under Section 6.2 in order to recover exemplary duplicative Damages in respect of a single set of facts or punitive damages under this Article 10 circumstances and (except ii) to the extent such punitive damages are awarded to a third party or an amount has been accurately and completely reflected in the case calculation of fraudAdjusted Working Capital or accurately and completely included in the Company Holder Transaction Expenses, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement such amount shall not also be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim an indemnification claim hereunder.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Merger Agreement (Red Hat Inc)
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the The aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Seller or Acquiror under Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap8.2 will not exceed $290,000,000.
(b) In the case Each Indemnified Party shall take, and cause its Affiliates to take, commercially reasonable steps to mitigate any Loss for which it would otherwise be entitled to indemnification pursuant to this Article VIII upon becoming aware of any Claim under (i) Section 10.2(a) with respect event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to any Fundamental Representation or any certifications made with respect thereto pursuant the minimum extent necessary to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for remedy the breach that gives rise to such Company Member’s Pro Rata Share of any Damages resulting therefrom, Loss; provided that the aggregate liability any reasonable cost incurred by a Party to mitigate any such Loss will be deemed a Loss for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3purposes of this Article VIII.
(c) Subject to Section 10.4(d)NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable NO PARTY TO THIS AGREEMENT NOR ANY AFFILIATE OF A PARTY TO THIS AGREEMENT SHALL BE LIABLE HEREUNDER TO ANY INDEMNIFIED PARTY FOR ANY LOST PROFITS OR PUNITIVE, CONSEQUENTIAL, REMOTE, SPECULATIVE, SPECIAL OR INDIRECT DAMAGES, EXCEPT TO THE EXTENT (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceedsI) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d)SUCH LOST PROFITS OR DAMAGES ARE INCLUDED IN ANY ACTION BY A THIRD PARTY AGAINST SUCH INDEMNIFIED PARTY FOR WHICH IT IS ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT OR (II) IN THE CASE OF CONSEQUENTIAL, in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger ConsiderationREMOTE OR INDIRECT DAMAGES, OR DAMAGES FOR DIMINUTION OF VALUE RELATIVE TO THE PURCHASE PRICE, SUCH DAMAGES ARE REASONABLY FORESEEABLE.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 2 contracts
Samples: Purchase Agreement (Sprague Resources Holdings LLC), Purchase Agreement (HP Bulk Storage Manager, LLC)
Limitations. (aA) In If the case of any General Representation ClaimClosing occurs, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims Shareholders under Section 10.2 shall be capped limited as follows: (i) the Shareholders shall have no liability under Section 10.2 until the aggregate Loss and Expense arising out of the matters as set forth in Section 10.2 in the aggregate exceed $1,000,000 (the "Threshold Amount") and then only to the extent of such excess; (ii) except as provided in Section 10.5, any recovery by an Indemnified Party for Loss or Expense under Section 10.2 shall be sought solely from the Retained Stock in the Escrow described in Section 10.5, which shall be valued at the General Representation Cap. In the case of any claim Per Share Equity Value, as adjusted pursuant to Section 10.3(a1.4(D); (iii) or except as provided in Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”)10.5, the Shareholders shall have no liability under Section 10.2 for aggregate liability Losses and Expenses which exceed $10,000,000 (the "Liability Cap"); (iv) any proceeds from insurance paid to DBI or Buyer which relate to any fact, event or circumstance requiring indemnity pursuant to Section 10.2 shall constitute a credit which shall be offset against the total Losses and Expenses (before the application of the Parent Indemnified Parties Threshold Amount); (v) any Loss or Expense calculated for all such claims purposes of Section 10.2 shall be capped at calculated taking into account any offsetting federal, state, local or foreign tax benefits that are realized because of such Loss or Expense to an Indemnified Party; and (vi) the General Representation Cap.
(b) In the case of any Claim Shareholders shall have no liability under (i) Section 10.2(a) 10.2 with respect to any Fundamental Representation costs or expenses of any certifications made remediation or environmental equipment repair, upgrade or addition undertaken by DBI unless (x) ordered or demanded by a court, governmental body or agency; or (y) such remediation, repair, upgrade or addition is required to be undertaken by applicable Environmental Law; or (z) necessary in order for DBI to be in compliance with respect thereto applicable Environmental Laws and resulting from an investigation (if there is an investigation) and remediation or environmental equipment repair, upgrade or addition which would be voluntarily undertaken under customary business practices in the industry. In addition, Shareholders shall not be obligated to indemnify Buyer pursuant to Section 8.2(a), (ii) 10.2 for any of clauses (b) through (j) of Section 10.2 ((i) loss or expense resulting from and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share related to the violation of any Damages resulting therefromapplicable Environmental Law by DBI or any Subsidiary after the Closing or, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3extent of the accrual therefor set forth in the Closing Date Working Capital, for any current ongoing monitoring or closure plan costs of DBI and its Subsidiaries.
(cB) Subject to Section 10.4(d)If the Closing occurs, in no event shall any Company Member have the liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred Buyer under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, limited as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).follows:
(i) The rights to indemnification, compensation or reimbursement Buyer shall have no liability under Section 10.2 until the aggregate Loss and Expense arising out of the matters as set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after Section 10.2 in the Agreement Date or the Closing Date), with respect aggregate exceed $1,000,000 and then only to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or extent of the existence of facts excess; and circumstances that provide the basis (ii) Buyer shall have no liability under Section 10.2 for a Claim hereunderaggregate Losses and Expenses which exceed $10,000,000.
Appears in 2 contracts
Samples: Recapitalization Agreement (Diamond Brands Inc), Recapitalization Agreement (Diamond Brands Operating Corp)
Limitations. (a) In Except for Losses based on (i) fraud or (ii) arising in connection with any Indemnification Claim based on any of the case Fundamental Representations or the IP Representations, the aggregate liability of any General Representation Claim, each Company Member Escrow Party pursuant to Section 8.2(a)(i) shall be severally and not jointly liable for limited to an amount equal to their Pro Rata Share of the Escrow Amount. For Losses (A) based on fraud committed by the Company or (B) arising in connection with any Indemnification Claim based on (1) any of the Fundamental Representations pursuant to Section 8.2(a)(i), or (2) Sections 8.2(a)(ii) through 8.2(a)(vi), inclusive, the aggregate liability of each Company Escrow Party shall be limited to an amount equal to the Merger Consideration which has been paid or is payable to such Company MemberEscrow Party, including such Company Escrow Party’s Pro Rata Share of the Escrow Amount (except, with respect to fraud committed by the Company, to the extent set forth below). For Losses arising in connection with any Damages resulting therefromIndemnification Claim based on the IP Representations, provided that the aggregate liability of the each Company Members for all General Representation Claims Escrow Party pursuant to Section 8.2(a)(i) shall be capped limited to 40% of the Merger Consideration which has been paid or is payable to such Company Escrow Party, including such Company Escrow Party’s Pro Rata Share of the Escrow Amount. For Losses based on fraud by a Company Escrow Party or in which a Company Escrow Party participated, caused or had actual knowledge of at the General Representation Captime of its occurrence, the aggregate liability of such Company Escrow Party pursuant to Section 8.2 shall be unlimited. In the case of any claim pursuant to Indemnification Claim arising out of Section 10.3(a) 8.2(a)(i)-(iii), or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”8.3(a)-(b), as applicable, the aggregate liability of Company Escrow Parties or Parent, as applicable, shall not be obligated to indemnify the Parent Indemnified Parties or the Company Indemnified Parties, as applicable, until the total amount of Losses with respect to the aforementioned claims that the Parent Indemnified Parties or the Company Indemnified Parties, as applicable, are entitled to recover exceeds $200,000 (the “Threshold”). If such Losses exceed the Threshold, then the Indemnifying Party shall be responsible to indemnify the Parent Indemnified Parties or the Company Indemnified Parties, as applicable, for all such claims Losses without regard to the Threshold. Notwithstanding the foregoing, this paragraph shall in no way limit, and the Threshold shall not apply to, the Parent Indemnified Parties’ right to indemnification for Losses arising in connection with any Indemnification Claim based on fraud or a breach of any of the Fundamental Representations or as otherwise set forth in the Disclosure Memorandum. The liability of the Company Escrow Parties (x) for Losses based on breach of the covenant set forth in Section 6.9(a) shall be capped at limited to the General Representation Capsame extent as liability is limited under this Section 8.4 for Losses arising out of an Indemnification Claim based on breach of the underlying representation or warranty to which such breach of covenant relates and (y) for Losses based on breach of the covenant set forth in Section 6.1(b)(xvii) shall be limited to the same extent as liability would be limited under this Section 8.4 for Losses arising out of an Indemnification Claim based on breach of the IP Representations; provided, however, the limitations on liability set forth in clauses (x) and (y), above, shall not apply to the extent the applicable covenant was breached with intent to deceive, or conceal information from, Parent; and provided, further, that the foregoing limitations on liability shall in no way bear on whether or not a condition to closing set forth in Article IV has been satisfied or on Parent’s termination rights pursuant to Article VII.
(b) In the case The aggregate liability of any Claim Parent to all Company Indemnified Parties under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member this Article VIII shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the limited to an amount equal to Net Merger Consideration paid or payable to the Company Members pursuant to Section 2.3Consideration.
(c) Subject Any Person against whom an Indemnification Claim is being asserted (an “Indemnifying Party”) shall not be obligated to Section 10.4(d), in no event shall indemnify and hold harmless any Company Member have liability pursuant to Person claiming indemnification under this Article 10 in excess VIII (an “Indemnified Party”) after the expiration of any applicable Survival Period unless a Claim Notice with respect to such Indemnification Claim shall have been given by the Indemnified Party prior to the expiration of the Merger Consideration payable applicable Survival Period.
(inclusive d) The obligations of each Company Escrow Party under Section 8.2 shall be satisfied, first, from the Escrow Amount. If the full amount of the portion Escrow Amount is paid to Parent in satisfaction of Indemnification Claims, any additional liability of the Holdback Amount and Company Escrow Parties under Section 8.2 shall be satisfied from other assets of the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) Company Escrow Parties, including by offset of amounts not yet paid by Parent under this Agreement or any other Operative Document. The aggregate value of Indemnification Claims paid to such Company Member pursuant the Parent Indemnified Parties shall be deemed to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of reduce the Merger Consideration.
(de) Notwithstanding anything herein The amount of any Losses for which indemnification is sought pursuant to the contrary, there this Article VIII shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
reduced by (ei) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect third party insurance proceeds actually recovered by any Indemnified Party from any third party insurance carrier that is not an Affiliate of the inaccuracy in or breach Parent, net of any representation increase in insurance premiums or warranty as of any particular dateother costs, any materialityincluding deductibles, Material Adverse Effect or similar qualification limiting the scope of incurred in connection with recovering such representation or warranty shall be disregarded.
insurance proceeds and (fii) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 any indemnity or Section 10.3, there shall be deducted contribution actually recovered by any Indemnified Party from any Damages third party that is not an amount Affiliate of Parent, net any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, costs incurred in connection with recovering any such Damagesamounts; provided, however, that none of the foregoing in no way obligates any Indemnified Parties shall have Party to purchase or maintain any obligation third party insurance policy or to (i) seek recovery against of any such insurance policies (other than the Tail Policy) proceeds or (ii) obtain insurance coverage indemnity or other third party protection with respect to contribution amounts from any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigationPerson.
(gf) No Indemnified Party shall be entitled Solely for purposes of determining the amount of Losses under Sections 8.2 and 8.3 (but not for purposes of determining whether a breach of any representation, warranty, covenant or obligation has occurred), all qualifications and limitations as to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision materiality, Company Material Adverse Effect and words of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement similar import set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderdisregarded.
Appears in 2 contracts
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and An indemnifying Party will not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate have liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to under Section 10.3(a11.1(i) or Section 10.3(c11.2(i), as the case may be, unless the claim exceeds the Threshold, and until the aggregate amount of liability actually incurred by the Indemnified Party with respect to all Purchaser Indemnity Claims or Seller Indemnity Claims (in each case that exceed the Threshold, if applicable), as the case may be, exceeds one and a half percent (1.5%) of the Purchase Price (other than a claim in connection with a Fundamental Representation) (a the “Parent General ClaimBasket”), in which event, the aggregate liability indemnifying Party will be required to pay the entire amount of such Purchaser Indemnity Claims or Seller Indemnity Claims in excess of the Parent Indemnified Parties Basket. In addition to the foregoing, except as set forth in Section 11.5(b), the maximum aggregate amount for all such claims which indemnification with respect to Section 11.1(i) may be sought will be 50% of the Purchase Price (“Seller’s Cap”) and the maximum aggregate amount for which indemnification with respect to Section 11.2(i) may be sought will be 50% of the Purchase Price (“Purchaser’s Cap”); provided, however, (i) Seller’s obligation to indemnify Purchaser for any Pre-Closing Environmental Liability shall not be subject to the Threshold or Basket, (ii) Seller’s obligation to indemnify Purchaser for any Losses under this Article XI with respect to any Pre-Closing Environmental Liability shall not be subject to Seller’s Cap and shall be capped at limited only (x) to the General Representation extent Purchaser contributed to or exacerbated the condition or circumstance forming the basis of such Losses which are not caused by Purchaser or its Affiliates and (y) to the most cost-effective, remedial alternative that is protective of human health and the environment and is consistent with and meets the requirements of any applicable Environmental Law and any Governmental Authority based upon the use of the property as industrial property, (iii) Seller’s obligation to indemnify Purchaser for any Losses under this Article XI with respect to any Retained Taxes shall not be subject to Seller’s Cap, (iv) Seller’s obligation to indemnify Purchaser for any Losses under this Article XI with respect to any Excluded Liabilities shall not be subject to the Threshold or Basket or Seller’s Cap; and (v) Seller’s obligation to indemnify Purchaser for any Losses arising out of the breach of any covenants of Seller contained herein shall not be subject to the Threshold or Basket or Seller’s Cap; and further provided that Purchaser’s obligation to indemnify Seller for any Assumed Environmental Liability shall not be subject to the Threshold or Basket or Purchaser’s Cap; (ii) Purchaser’s obligation to indemnify Seller for any Losses under this Article XI with respect to any Assumed Liabilities shall not be subject to the Threshold or Basket or Purchaser’s Cap; and (iii) Purchaser’s obligation to indemnify Seller for any Losses arising out of the breach of any covenants of Purchaser contained herein shall not be subject to the Threshold or Basket or Purchaser’s Cap.
(b) In Notwithstanding anything to the case contrary contained herein, no Seller Party nor any of their respective Affiliates shall have any liability under this ARTICLE XI for any Purchaser Indemnity Claim to the extent arising out of or in connection with any action (whether the taking of soil or groundwater samples or otherwise) prohibited by Section 8.3, whether by Purchaser or any other Person, including any subsequent owner or operator of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any part of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3Business.
(c) Subject The amount for which indemnification may be sought for any Purchaser Indemnity Claim or Seller Indemnity Claim shall (i) be net of any amounts recovered or recoverable by the Indemnified Party or an Affiliate of the Indemnified Party under applicable insurance policies or otherwise, and (ii) be (A) reduced to take into account any net Tax benefit realized by the Indemnified Party arising from the incurrence or payment of amounts for which indemnification is claimed and (B) increased to take into account any net Tax cost incurred by the Indemnified Party arising from the receipt of indemnity payments hereunder (including any Tax resulting from the payment under this subclause (B)). In computing the amount of any such Tax or Tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of any indemnity payment hereunder or incurring or paying any indemnified claim. Any indemnity payment hereunder shall initially be made without regard to this Section 10.4(d11.5(c) and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax benefit only after the Indemnified Party has actually realized such cost or benefit. For the purposes of this Agreement, an Indemnified Party shall be deemed to have “actually realized” a net Tax cost or a net Tax benefit to the extent that, and at such time as, the amount of Taxes payable by such Indemnified Party is increased above or reduced below (including the receipt by any Indemnified Party of a refund of Taxes), in no event shall any Company Member have liability pursuant as the case may be, the amount of Taxes that such Indemnified Party would be required to this Article 10 in excess pay but for the receipt or accrual of the Merger Consideration payable (inclusive indemnity payment or the incurrence or payment of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Considerationindemnified claim.
(d) Notwithstanding anything herein to the contraryNo claims for Indemnification shall include indirect, there shall be no maximum liability consequential, punitive, special or exemplary damages or any claim for a multiplier effect or any Company Member capitalization of out-of-pocket expenses or Parent Indemnified Party who committedlost profits, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the foregoing shall not be construed to preclude recovery by the Indemnified Party in respect of Losses directly incurred from Third-Party Claims. Both Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) their damages. No Indemnified Party shall be entitled to double recovery indemnified under this ARTICLE XI for any indemnifiable Damages even though matter to the extent that such Damages may be recoverable under more than one provision of Indemnified Party has been compensated for such matter pursuant to the Purchase Price adjustment contained in Section 10.2 or Section 10.33.1.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(ie) The rights to indemnificationParties agree that, compensation or reimbursement following the Closing, the indemnification and other provisions set forth in this Agreement ARTICLE XI will be the sole and exclusive remedy of Purchaser against Seller, on the one hand, and of Seller against Purchaser, on the other hand, arising out of this Agreement; provided, however, that this Section 11.5(d) shall not be affected by any investigation conducted by Parent, preclude a Party from bringing an action for specific performance or other equitable remedy to require a Party to perform its obligations under this Agreement or any knowledge acquired (or capable agreement referenced herein. Notwithstanding the foregoing, nothing herein will eliminate the availability to the Parties of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), equitable remedies with respect to the accuracy any dispute that may arise under this Agreement or inaccuracy of, or compliance with, limit any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderclaim based upon fraud.
Appears in 2 contracts
Samples: Purchase Agreement (American Pacific Corp), Purchase Agreement (Gencorp Inc)
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein contained in this Agreement to the contrary, there neither party shall be no maximum liability liable for any Company Member or Parent amounts for which an Indemnified Party who committed, participated (as defined below) is otherwise entitled to indemnification in connection with the breach or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as or any breach of any particular datecovenant contained herein until the aggregate amount for which such Indemnified Party is entitled to indemnification with respect to all such Claims for indemnification in the aggregate exceeds One Million Dollars ($1,000,000) (the "Threshold"), at which time such party shall be liable for any materialitysuch excess. In determining the foregoing Threshold and in otherwise determining the amount to which the Indemnified Party is entitled to assert a claim for indemnification pursuant to this Article IX, Material Adverse Effect only actual losses shall be considered. The Threshold shall not apply (i) with respect to Buyer's claims hereunder, as to any Claims related to (A) the Excluded Assets, (B) the Retained Liabilities or similar qualification limiting the scope (C) any breach or inaccuracy of such any representation or warranty relating to Sections 2.07 (Inventory) and 2.12 (Accounts Receivable) and (ii) with respect to Seller's claims hereunder, as to any Claims related to the payment of all amounts due to Seller pursuant to Sections 1.05 (Payment of Purchase Price) and 1.05 (Post-Closing Adjustment). The Threshold shall not apply as to any Claims arising from fraud committed by the Indemnifying Party against the Indemnified Party with respect to the transactions contemplated under this Agreement. The parties hereto waive as against each other any claim to consequential, special, exemplary or punitive damages except to the extent consequential, special, exemplary or punitive damages are awarded to a third person against an Indemnified Party in circumstances in which such Indemnified Party is entitled to indemnification hereunder such consequential, special, exemplary or punitive damages so awarded shall be disregardedpayable to such Indemnified Party hereunder.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(hb) Notwithstanding anything to the contrary contained in this AgreementArticle IX, the amount for which Buyer shall be entitled to, and Seller liable for, indemnification hereunder shall not exceed the following: (i) the aggregate amount recoverable from Seller for indemnification claims arising from the representations and warranties of Seller with respect to Sections 2.07 (Inventory) and 2.12 (Accounts Receivable) shall not exceed the excess of $25,000,000 over the Downward Adjustment Amount and (ii) the aggregate amount recoverable from Seller for indemnification claims arising from the breach of any covenant by Seller or the representations and warranties of Seller with respect to Sections 2.03 (Assumed Contracts), 2.04 (Intellectual Property), 2.05 (Title) and 2.13 (Software) shall not exceed $5,000,000. Indemnification claims arising from the representations and warranties of Seller with respect to Sections 2.07 (Inventory) and 2.12 (Accounts Receivable) shall be satisfied first from the Accounts Receivable/Inventory Holdback Amount and, to the extent the Accounts Receivable/Inventory Holdback Amount is insufficient to cover any such claims (subject to the maximum allowable amounts set forth in the preceding sentence), Seller agrees to satisfy any such claims. Indemnification claims arising from the representations and warranties of Seller with respect to Sections 2.03 (Assumed Contracts) and 2.04 (Intellectual Property), 2.05 (Title) and 2.13 (Software) shall be satisfied solely from the Escrow Amount. Seller and Buyer agree that under no circumstances will shall the Escrow Agent release any Indemnified Party be entitled of the Escrow Amount to recover exemplary or punitive damages under this Article 10 Buyer to satisfy any amounts owed to Buyer in respect of any indemnification claims arising from the representations and warranties of Seller with respect to Sections 2.07 (except Inventory) and 2.12 (Accounts Receivable). Notwithstanding the foregoing, if Seller has not paid any amounts due to the extent such punitive damages are awarded Buyer on account of an undisputed Downward Adjustment Amount pursuant to a third party or Section 1.05 hereof, Seller agrees to use any funds remaining in the case Escrow Amount immediately prior to its release to Seller, towards the satisfaction of fraud, intentional misrepresentation or willful breach)each unpaid Downward Adjustment.
(c) The obligation of Seller to indemnify Buyer in connection with the representations and warranties of Seller contained in Sections 2.07 (Inventory) and 2.12 (Accounts Receivable) shall terminate on the later of (i) ninety (90) days following the Closing or (ii) fifteen (15) days following the resolution of any dispute relating to the Audit. The rights obligation of Seller to indemnificationindemnify Buyer in connection with the representations and warranties of Seller contained in Sections 2.03 (Assumed Contracts), compensation or reimbursement set forth in this Agreement 2.04 (Intellectual Property), 2.05 (Title) and 2.13 (Software) shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or terminate 6 months after the Agreement Date or the Closing Date). Notwithstanding the foregoing, the respective indemnification obligations of the parties hereunder shall not expire with respect to any Claim brought within such specified time periods until the indemnification obligation, if any, with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts such Claim shall have been finally determined and circumstances that provide the basis for a Claim hereunderpaid.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Converse Inc), Stock and Note Purchase Agreement (Converse Inc)
Limitations. Subject to the terms and conditions of this Section 9 and the limitations provided in Section 11:
9.3.1 The amount paid to the third party that brought the Third‑Party Claim (athe “Third-Party Damages”) In for which indemnification is provided under this Section 9 shall be limited to the case amount of any General Representation ClaimLiability that remains after deducting therefrom any insurance proceeds and any indemnity, each Company Member shall contribution or other similar payment received or reasonably expected to be severally and not jointly liable for such Company Member’s Pro Rata Share received by the Indemnified Person in respect of any such claim; and the Indemnified Person shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Third-Party Damages resulting therefrom, provided that prior to seeking payment from the aggregate liability Indemnifying Person under this Agreement.
9.3.2 The indemnities herein are intended solely for the benefit of the Company Members Persons expressly identified in this Section 9 (and their permitted successors and assigns) and are in no way intended to, nor shall they, constitute an agreement for all General Representation Claims shall the benefit of, or be capped at the General Representation Cap. In the case of enforceable by, any claim pursuant to Section 10.3(a) other Person.
9.3.3 An Indemnified Person may not recover Third-Party Damages more than once for any specific facts, omissions or Section 10.3(c) (other than a claim circumstances.
9.3.4 If any Party pays any amount in connection with a Fundamental Representation) Third-Party Claim pursuant to Section 9.1 or Section 9.2, including any Third-Party Damages and any costs or expenses in defending such Third-Party Claim (a “Parent General Claim”including reasonable attorneys’ fees and expert witness fees), and it is subsequently determined that the aggregate liability of paying Party has no, or has only a partial, indemnification obligation for such Third-Party Claim, then the Parent Indemnified Parties Person that received payment (or whose indemnitees received payment) shall, promptly following written request therefore, reimburse the paying Party for all such claims shall be capped at amounts incorrectly paid by the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying paying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; providedThird-Party Claim, however, that none of the Indemnified Parties shall have including any obligation to (i) seek recovery against Third-Party Damages and any insurance policies (other than the Tail Policy) costs or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages expenses in accordance with the common law doctrine of mitigationdefending such Third-Party Claim.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 2 contracts
Samples: Strategic Services Agreement (Zovio Inc), Asset Purchase and Sale Agreement (Zovio Inc)
Limitations. (a) In The Company shall not have any obligation to indemnify Purchaser from and against any Damages under Section 6.1, other than Damages resulting by reason of a breach of Sections 2.1, 2.2 or 2.5 or any fraud or intentional misrepresentation, until the Purchaser Indemnitees have suffered Damages by reason of all such breaches in excess of One Million United States Dollars ($1,000,000) (after which point the Company will be obligated to indemnify the Purchaser Indemnitees from and against all such Damages) and such indemnification obligation shall not exceed Twenty-Five Million United States Dollars ($25,000,000) except with respect to a breach of Sections 2.1, 2.2 or 2.5 or in the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) fraud or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Capintentional misrepresentation.
(b) In Purchaser shall not have any obligation to indemnify the Company Indemnitees from and against Damages under Section 6.2, other than Damages resulting by reason of a breach of Sections 3.1 or 3.2 or any fraud or intentional misrepresentation, until the Company Indemnitees have suffered Damages by reason of all such breaches in excess of a One Million United States Dollars ($1,000,000) aggregated deductible (after which point Purchaser will be obligated to indemnify the Company Indemnitees from and against all such Damages) and such indemnification obligation shall not exceed Twenty-Five Million United States Dollars ($25,000,000) except with respect to a breach of Sections 3.1 or 3.2 or in the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation fraud or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3intentional misrepresentation.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to The rights of the Indemnified Parties under this Article 10 in excess VI shall be the exclusive remedy of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover with respect to any and all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurredmatters arising out of, paid relating to, or properly accrued exceed the Deductibleconnected with this Agreement, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable its Subsidiaries and net of any costs, Taxes their respective assets and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damagesliabilities; provided, however, that none notwithstanding any other provision of this Agreement, nothing herein shall limit any claim of any Party for remedies at law or in equity for fraud or intentional misrepresentations.
(d) The amount of Damages recoverable by an Indemnified Party under this Article VI shall be reduced by any proceeds received by such Indemnified Party or an Affiliate, with respect to the Damages to which such indemnity claim relates, from an insurance carrier or any third party. Each Indemnified Parties Party shall have use its Reasonable Best Efforts to seek payment or reimbursement for any obligation to (i) seek recovery against Damages from its insurance carrier or other collateral sources. In the event that an Indemnified Party shall receive funds from any insurance policies (other than the Tail Policy) carrier or (ii) obtain insurance coverage or other third party protection collateral source with respect to any particular matter. Each Damages, any such amounts so received shall be payable to the Indemnifying Party, regardless of Parent and Representative (on behalf of when received by the Company Members) shall use commercially reasonable efforts Indemnified Party, up to mitigate Damages in accordance such amount previously paid by the Indemnifying Party or their Affiliates with the common law doctrine of mitigationrespect to such Damages.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(he) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any following a determination that the Indemnifying Party is obligated to indemnify the Indemnified Party be entitled pursuant to recover exemplary Sections 6.1 or punitive damages under this Article 10 (except 6.2(a), and subject to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement threshold amounts set forth in Sections 6.5(a) or 6.5(b), and solely for purposes of determining the amount of any Damages that are the subject matter of a claim for indemnification hereunder, each representation and warranty in this Agreement and each certificate of document delivered pursuant hereto shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect read without regard and without giving effect to the accuracy term(s) “material” or inaccuracy of“Material Adverse Effect” in each instance where the effect of such term(s) would be to make such representation and warranty less restrictive (as if such words and surrounding related words (e.g., or compliance with, any representation, “reasonably be expected to,” “could have”) and similar restrictions and qualifiers were deleted from such representations and warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder).
Appears in 2 contracts
Samples: Partnership Interest Purchase Agreement, Partnership Interest Purchase Agreement (Contango Oil & Gas Co)
Limitations. (a) In the case of any General Representation Claim, each Company Member Neither Transferor nor Transferee shall be severally and not jointly liable required to indemnify any Indemnified Party for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurredunless and until the total of all of the Damages properly asserted against such Indemnifying Party under Section 7.2 exceeds 1% of the Purchase Price, at which time the applicable Indemnified Parties shall be entitled to recover the aggregate amount of all Damages in excess of such threshold; provided, however, that the aggregate liability of Transferee, on the one hand, and Transferor, on the other hand, for indemnity under this Article VII shall not exceed 10% of the Purchase Price. Notwithstanding anything in the foregoing to the contrary, the limitations contemplated by this Section 7.4(a) shall not apply to any claims for fraud or intentional, criminal, or willful misrepresentation or misconduct or for Damages arising out of or relating to the breach of any Fundamental Representation or representation or warranty of Transferor set forth in Section 3.11; provided, however, that the aggregate liability of Transferee, on the one hand, and Transferor, on the other hand, for Damages arising out of or relating to the breach of the Fundamental Representations shall not exceed the Purchase Price.
(b) For purposes of determining the amount of Damages, with respect to any Damages asserted claim for indemnification by a Transferee Indemnitee, such determination shall be made without regard to any qualifier as to “material,” “materiality” or Material Adverse Effect expressly contained in respect Article III (except in the case of the inaccuracy in or term Material Contract); provided that this Section 7.4(b) shall not so modify the representations and warranties for purposes of first determining whether a breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregardedhas occurred.
(fc) Notwithstanding anything herein to the contraryNOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, for purposes of calculating or determining the amount of Damages incurred under THE PARTIES EXPRESSLY AGREE THAT NEITHER TRANSFEROR NOR TRANSFEREE SHALL HAVE ANY LIABILITY TO ANY PARTY FOR ANY EXEMPLARY, PUNITIVE, INDIRECT, CONSEQUENTIAL, REMOTE, OR SPECULATIVE DAMAGES, SAVE AND EXCEPT SUCH DAMAGES PAYABLE WITH RESPECT TO THIRD PARTY CLAIMS FOR WHICH SUCH INDEMNIFYING PARTY IS OBLIGATED TO PROVIDE INDEMNIFICATION UNDER Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation7.2.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 2 contracts
Samples: Contribution Agreement (Enviva Partners, LP), Contribution Agreement
Limitations. Notwithstanding anything to the contrary contained in this Agreement or in any other Transaction Document:
(a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) No GNL Indemnified Party will be entitled to indemnification under Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j7.1(a) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for this Agreement unless such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 GNL Indemnified Party has incurred Losses in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages $3,750,000 in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company such GNL Indemnified Party may recover any Damages in respect will be entitled to indemnification under Section 7.1(a) of Parent General Claims unless and until Damages in this Agreement only to the extent the aggregate under all Claims that have been incurred, paid or properly accrued Losses with respect to such claims exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none the Deductible shall not apply to Losses with respect to the breach of any Advisor Fundamental Representations; (ii) the aggregate amount of all Losses that the GNL Indemnified Parties may recover under Section 7.1(a) of this Agreement (other than with respect to the Advisor Fundamental Representations) shall have not exceed $28,125,000 (the “Cap”); and (iii) notwithstanding anything to the contrary in this Agreement, the maximum aggregate liability of Advisor Parent pursuant to this Article 7 shall be $56,250,000 (the “Overall Cap”).
(b) The amount of any obligation to Loss for which indemnification is provided under this Article 7 shall be net of (i) seek recovery against any insurance policies (other than amounts recovered by the Tail Policy) Indemnified Party pursuant to any indemnification by, or indemnification agreement with, any Third Party or (ii) obtain insurance coverage proceeds or other third party protection with respect to any particular mattersources of reimbursement received, which shall be an offset against such Loss. Each of Parent and Representative (on behalf of the Company Members) The Indemnified Party shall use commercially reasonable efforts to mitigate Damages in accordance with seek recovery from all such sources to minimize any Loss for which indemnification is provided under this Article 7. If the common law doctrine amount to be netted hereunder from any payment required under this Article 7 is determined after payment by the Indemnifying Party of mitigationany amount otherwise required to be paid to an Indemnified Party pursuant to this Article 7, the Indemnified Party shall repay to the Indemnifying Party, promptly after such determination, any amount that the Indemnifying Party would not have had to pay pursuant to this Article 7 had such determination been made at the time of such payment.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(hc) Notwithstanding anything to the contrary contained in this Agreementherein, under no circumstances will any an Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights Party’s right to indemnification, compensation payments of Losses or reimbursement set forth any other remedy based on the representations, warranties, covenants and agreements contained in this Agreement shall will not be affected by any investigation conducted by Parentwith respect to, or any knowledge acquired (or capable of being acquired) at any time (by any Party, whether before or after the execution and delivery of this Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, of or compliance with, any such representation, warranty, covenantcovenant or agreement. The waiver of any condition based on the accuracy of any representation or warranty, agreement or obligation on the performance of or compliance with any covenant or agreement, will not affect the existence right to indemnification, payment of facts Losses, or any other remedy based on such representations, warranties, covenants and circumstances that provide the basis for a Claim hereunderagreements.
Appears in 2 contracts
Samples: Merger Agreement (Necessity Retail REIT, Inc.), Merger Agreement (Global Net Lease, Inc.)
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there but subject to the remainder of this Section 8.7 and each Party’s right to exercise any remedies available to it in the event of a CVT Event of Default (as to TPG-Axon) or a TPG-Axon Event of Default (as to CVT) at law or in equity for such event, including all rights and remedies, as to TPG-Axon, of a secured party under the Code, in no event shall any Party or any Indemnitee of such Party be liable for any indirect, incidental, special or consequential, punitive or exemplary damages, including loss of profits, whether in contract or tort, regardless of whether the other Party shall be no maximum liability for advised, shall have [****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions. reason to know, or in fact shall know of the possibility of such damages suffered or incurred by such other Party or any Company Member or Parent Indemnified Party who committedin connection with this Agreement, participated except to the extent any such Damages are actually paid to a Third Person in or had connection with Section 8.4(a) of this Agreement. Notwithstanding the foregoing, the limitations set forth in this Section 8.7 shall not apply to a Party’s claim for indemnification hereunder in the case of actual knowledge of fraud, intentional misrepresentation or willful breach.
intentional wrongful acts. In addition, the Parties acknowledge and agree that (ea) No Parent Indemnified Party may recover TPG-Axon’s Damages, if any, for any Damages in respect of General Representation Claims unless and until Damages indemnifiable events under this Agreement or in the aggregate under all Claims event of any CVT Event of Default will typically include Damages for Regadenoson Royalty payments and Related Regadenoson Payments that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess TPG-Axon was entitled to receive pursuant to its ownership of the Deductible. No Company Indemnified Party may recover any Damages in respect TPG-Axon Royalty Interest and other Assigned Rights but did not receive timely or at all due to such indemnifiable event or CVT Event of Parent General Claims unless Default and until Damages in the aggregate under (b) TPG-Axon shall be entitled to make indemnification claims for all Claims such missing or delayed Regadenoson Royalty payments and Related Regadenoson Payments that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess TPG-Axon was entitled to receive pursuant to its ownership of the deductible. In determining whether a breach of a representation or warranty has occurred, TPG-Axon Royalty Interest and in determining the amount of any other Assigned Rights as Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty hereunder (which claims shall be disregarded.
(f) Notwithstanding anything herein to reviewed and assessed by the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine procedures set forth in this Article 8), and such missing or delayed Regadenoson Royalty payments and Related Regadenoson Payments that TPG-Axon was entitled to receive pursuant to its ownership of mitigation.
(g) No Indemnified the TPG-Axon Royalty Interest and other Assigned Rights shall not be deemed indirect, incidental, special or consequential, punitive or exemplary damages, or lost profits, for any purpose of this Agreement. Additionally, notwithstanding the foregoing, in the event of any Breach or failure in performance of any covenant or agreement contained in this Agreement, the non-Breaching Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision seek specific performance, injunctive or other equitable relief as set forth in Section 9.3 of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement. For the avoidance of doubt, under no circumstances will neither Party shall have any Indemnified right to terminate this Agreement or any other Transaction Document as a result of any Breach by the other Party be entitled to recover exemplary hereof or punitive damages under this Article 10 thereof (except to the extent such punitive damages are awarded to a third party or as set forth in Section 7.4), but instead shall have (x) in the case of fraudTPG-Axon if such Breach constitutes a CVT Event of Default, intentional misrepresentation the right to exercise any remedies available to it in the event of a CVT Event of Default at law or willful breach)in equity for such event, including all rights and remedies of a secured party under the Code, (y) in the case of CVT if such Breach constitutes a TPG-Axon Event of Default, the right to exercise any remedies available to it in the event of a TPG-Axon Event of Default at law or in equity for such event, and (z) otherwise in the case of TPG-Axon and CVT the right to seek indemnification under this Article 8 and such specific performance.
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 2 contracts
Samples: Asset Sale and Purchase Agreement, Asset Sale and Purchase Agreement (Cv Therapeutics Inc)
Limitations. Notwithstanding anything to the contrary in this Agreement or in any of the Transaction Documents:
(a) In Each Party shall, and shall cause its Subsidiaries (and its and the case Subsidiaries’ Representatives), to take all reasonable steps to mitigate Damages subject to indemnification under this Article VII upon and after becoming aware of any General Representation Claimevent that reasonably could be expected to give rise to any such Damages, each Company Member and indemnification shall not be severally and not jointly liable for available under this Article VII to the extent any such Company Member’s Pro Rata Share Damages are attributable to a failure of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant such Person to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all take reasonable steps to mitigate such claims shall be capped at the General Representation Cap.Damages;
(b) In No Parent Indemnified Party or Spinco Indemnified Party shall be entitled to payment or indemnification more than once with respect to the case same matter (including by being taken into account in the determination of the Final Net Working Capital Amount);
(c) No Party shall be entitled to set off, or shall have any right of set off, in respect of any Claim Damages under this Article VII against any payments to be made by such Party under this Agreement or any other Transaction Document; and
(d) Parent’s obligation to indemnify Spinco Indemnified Parties for Damages with respect to Assumed Liabilities pursuant to Section 7.02(b)(iv) is subject to the following additional limitations: (i) Parent shall only have liability to the Spinco Indemnified Parties under Section 10.2(a7.02(b)(iv) with respect to an Assumed Liability to the extent such Assumed Liability was the subject of a written notice given by a Spinco Indemnified Party pursuant to and in compliance with Section 7.03(a) on or prior to the first anniversary of the Distribution Date; (ii) Parent shall have no liability under Section 7.02(b)(iv) with respect to any Fundamental Representation Assumed Liability to the extent of any amounts reserved or accrued on the Balance Sheet or taken into account in the determination of the Final Net Working Capital Amount (it being understood that any certifications made such reserved or accrued amounts also shall not be counted for purposes of determining whether the Deductible contemplated in clause (iii) has been satisfied); (iii) Parent shall have no Liability under Section 7.02(b)(iv) with respect thereto pursuant to Section 8.2(a), any claim (iiincluding any Damages) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that until the aggregate liability for the Company Members for amount of all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Damages under Section 2.3.
(c7.02(b)(iv) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed exceeds $287,500 100,000,000 (the “Deductible”), in at which case point the Parent Spinco Indemnified Parties may recover all shall be entitled to indemnification only for those Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages ; and (iv) in respect no event shall the obligation of Parent General Claims unless and until Damages to indemnify Spinco Indemnified Parties pursuant to Section 7.02(b)(iv) exceed $400,000,000 in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregardedaggregate.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 2 contracts
Samples: Separation Agreement, Separation Agreement (Lockheed Martin Corp)
Limitations. (a) In Reliant shall not be liable for any Loss described in Section 8.1(a) unless and until the case aggregate of all such Losses for which Reliant is liable is in excess of Five Hundred Thousand Dollars ($500,000), in which event, Reliant shall be liable for all Losses in excess of such amount. Notwithstanding the foregoing, subsequent to the Closing Date in no event shall the liability of Reliant under Section 8.1(a) exceed Ten Million Dollars ($10,000,000) in the aggregate; provided that such limitation shall not apply to any breach of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case representations or warranties of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim Reliant set forth in connection with a Fundamental Representation) (a “Parent General Claim”Sections 5.1, 5.2, 5.4(a), the aggregate liability and 5.8 of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Capthis Agreement.
(b) In For the case avoidance of doubt and without limitation to the provisions of Articles V and VI, neither Indemnifying Party shall have any Claim obligation to indemnify, defend and hold harmless the Indemnified Party from and against any portion of Losses under (i) Section 10.2(a) with respect 8.1 or Section 8.2 to the extent that such portion of such Losses results directly from any Fundamental Representation action taken by, omission of, or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3express written request of, such Indemnified Party.
(c) Subject No Party hereto shall be entitled to Section 10.4(d), in no event shall recover for any Company Member have liability Losses or other amounts due from the other Party pursuant to this Article 10 in excess of the Merger Consideration payable Agreement or any Other Agreement by retaining or setting off amounts (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld whether or not such amounts are liquidated or reduced to judgment) against any amounts due or to become due from such Indemnifying Party’s proceeds) first Party to such Company Member second Party hereunder or under any Other Agreement or under any document or instrument delivered pursuant hereto or thereto or in connection herewith or therewith. For the avoidance of doubt, the foregoing is without prejudice to Section 2.3. Subject to Section 10.4(d)any right of set-off expressly provided for in any Other Agreement, in no event shall any Parent Indemnifying Party have liability pursuant to which does not involve setting off amounts due under this Article 10 in excess of the Merger ConsiderationAgreement.
(d) Notwithstanding anything herein All amounts paid by Reliant or Oscient under this Article VIII shall be treated for all purposes as adjustments to the contraryPurchase Price. In the event that treatment as an adjustment to the Purchase Price is disputed by any taxing authority, there the Party receiving notice of such dispute shall be no maximum liability for any Company Member or Parent Indemnified promptly notify and consult with the other Party who committed, participated in or had actual knowledge concerning resolution of fraud, intentional misrepresentation or willful breachsuch dispute.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, in no event shall the liability of Reliant under no circumstances will Section 8.1(b) for non-compliance or any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to breach of the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement covenant and agreement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired Section 7.17 exceed Two Million Two Hundred Fifty Thousand Dollars (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date$2,250,000), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Reliant Pharmaceuticals, Inc.), Asset Purchase Agreement (Reliant Pharmaceuticals, Inc.)
Limitations. (a) In the case of any General Representation Claim, each Company Member Indemnifying Party shall be severally and not jointly liable for such Company MemberIndemnifying Party’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of for the Company Members Indemnifying Parties for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Specified Representation Claim, each Indemnifying Party shall be severally and not jointly liable for such Indemnifying Party’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Indemnifying Parties for all Specified Representation Claims shall be capped at the Specified Representation Cap.
(c) In the case of any Claim under (iA) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (iiB) any of clauses (b) through (jk) of Section 10.2 or (C) Section 10.2(l) with respect to any of the matters in the foregoing clauses (iA) and (iiB) ((A) through (C), collectively, “Special Matters”), each Company Member Indemnifying Party shall be severally and not jointly liable for such Company MemberIndemnifying Party’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members Indemnifying Parties for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to actually received (and, for the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d)avoidance of doubt, amounts in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount Escrow Fund and the Expense Fund Amount withheld from such and Parent Shares subject to the Restriction Agreement shall be treated as “actually received” for this Section 10.3(c)) by the Indemnifying Party’s proceeds) to such Company Member Parties pursuant to Section 2.3. Subject to Section 10.4(dSections 2.3(c) and (d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Indemnifying Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 450,000 (the “DeductibleBasket”), in which case the Parent Indemnified Parties may recover all Damages in excess Damages, including the amount of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductibleBasket. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach failure of any representation or warranty to be true and correct as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.310.2, there shall be deducted from any Damages an amount equal to the amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements proceeds actually received by any Indemnified Party from any third-party insurer for such Damages (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages); provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) ), or (ii) obtain insurance coverage or other third third-party protection with respect to any particular matter. Each of Parent and Representative matter (on behalf other than the maintenance of the Company Members) shall use commercially reasonable efforts to mitigate Damages Tail Policy as provided in accordance with the common law doctrine of mitigationSection 5.17).
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.310.2.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parentany Indemnified Party, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Sumo Logic, Inc.), Agreement and Plan of Reorganization (Sumo Logic, Inc.)
Limitations. Neither any Seller Indemnified Party nor the Purchaser Indemnified Party shall have any liability for, or Losses be deemed to include, any special, punitive or exemplary damages, or any lost profits, whether in contract or tort, regardless of whether the other Party shall be advised, shall have reason to know, or in fact shall know of the possibility of such damages suffered or incurred by any such Seller Indemnified Party or the Purchaser Indemnified Party in connection with this Agreement any of the other Transaction Documents or any of the transactions contemplated hereby or thereby, except to the extent any such damages are actually paid to a Third Party in accordance with Section 7.3. Notwithstanding the foregoing, the limitations set forth in this Section 7.6 shall not apply to any claim for indemnification hereunder in the case of actual fraud, intentional misrepresentation, intentional wrongful acts, intentional breach, bad faith or willful misconduct. The Parties acknowledge and agree that (a) In each Purchaser’s Losses, if any, for any indemnifiable events under this Agreement will typically include Losses for Purchased Receivables that such Purchaser was entitled to receive in respect of its ownership of the case of any General Representation ClaimPurchased Receivables but did not receive timely or at all due to such indemnifiable event and (b) subject to this Section 7.6, each Company Member such Purchaser shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant entitled to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties make indemnification claims for all such missing or delayed Purchased Receivables that such Purchaser was entitled to receive in respect of its ownership of the Purchased Receivables as Losses hereunder (which claims shall be capped at reviewed and assessed by the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement procedures set forth in this Agreement ARTICLE VII), and such missing or delayed Purchased Receivables shall not be affected by any investigation conducted by Parentdeemed special, punitive or exemplary damages, or lost profits for any knowledge acquired (or capable purpose of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderthis Agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Oramed Pharmaceuticals Inc.), Purchase and Sale Agreement (Scilex Holding Co)
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this AgreementArticle VIII, under no circumstances will any an Indemnified Party shall be entitled to recover exemplary or punitive damages under this Article 10 (except indemnification only if it makes a claim for indemnification to the extent such punitive damages are awarded Indemnifying Party on or before the expiration of the survival period pursuant to a third party Section 7.01 for the applicable representation, warranty, covenant or agreement.
(b) Notwithstanding anything to the contrary in this Agreement:
(i) an Indemnifying Party shall be liable under Section 8.01(a) (in the case of fraudthe Company’s liability) or Section 8.02(a) (in the case of the Investor’s liability) only if the aggregate amount of indemnifiable Losses arising under Section 8.01(a) (in the case of the Company’s liability) or Section 8.02(a) (in the case of the Investor’s liability) exceeds $7,500,000 (the “Deductible”), intentional misrepresentation whereupon (subject to the provisions of Section 8.03(b)(ii)), such Indemnifying Party shall be obligated to pay in full all such amounts in excess of the Deductible; provided that the Deductible shall not apply to Losses incurred by an Indemnified Entity as a result of any inaccuracy in or willful breach)breach of any of the Fundamental Representations; and
(ii) in no event shall any Party’s aggregate liability to the Indemnified Parties of the other Party under Section 8.01(a) (in the case of the Company’s liability) or Section 8.02(a) (in the case of the Investor’s liability) exceed $75,000,000; provided that the foregoing provisions of this Section 8.03(b)(ii) shall not apply to limit any Losses incurred by an Indemnified Entity as a result of any inaccuracy in or breach of any of the Fundamental Representations, liability under which shall be limited to the Purchase Price.
(ic) The rights Indemnifying Party shall be subrogated to indemnificationany right, compensation defense or reimbursement set forth in this Agreement shall not be affected by claim that the Indemnified Party may have against any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), other Person with respect to any matter for which it provides full indemnification hereunder. Such Indemnified Party shall cooperate with the accuracy Indemnifying Party in a reasonable manner, at the sole cost and expense of the Indemnifying Party, in presenting any subrogated right, defense or inaccuracy ofclaim.
(d) All indemnifiable Losses shall be determined without duplication of recovery under other provisions of this Agreement. Without limiting the generality of the prior sentence, if a set of facts, conditions or compliance with, any events constitutes a breach of more than one representation, warranty, covenantcovenant or agreement of this Agreement that is subject to an indemnification obligation under this Article VIII, agreement only one recovery of indemnifiable Losses shall be allowed with respect to such set of facts, conditions or obligation events, and in no event shall there be any indemnification or duplication of payments or recovery under different provisions of this Agreement arising out of the existence same set of facts facts, conditions or events.
(e) No Party shall be liable for special, punitive, exemplary, incidental, consequential or indirect damages, lost profits or losses calculated by reference to any multiple of earnings or earnings before interest, Tax, depreciation or amortization (or any other valuation methodology), whether based on contract, tort, strict liability, other Law or otherwise and circumstances that provide whether or not arising from the basis other Party’s sole, joint or concurrent negligence, strict liability or other fault for a Claim hereunderany matter relating to this Agreement and the transactions contemplated hereby.
(f) Neither Party shall have any right to off-set or set-off any payment due pursuant to this Article VIII.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Kansas City Power & Light Co)
Limitations. (a) In the case The provisions of any General Representation Claim, each Company Member shall be severally Sections 6.5 and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant 6.6 are applicable to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Capthis Article VIII.
(b) In the case of any Claim Seller shall have no liability under (iSections 8.2(a) Section 10.2(aor 8.2(b) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that in any way arising out of or related to an actual or proposed Development at a Business Property after the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3Closing.
(c) Subject to Section 10.4(d), The Parties agree that any Damages incurred by Buyer in no event shall any Company Member have liability investigation or remediation activities that are not required pursuant to this Article 10 in excess Environmental Laws shall not be deemed a mandatory obligation for purposes of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d8.2(a), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein Costs and expenses incurred in connection with investigation and remediation of a Release of Materials of Environmental Concern shall be indemnifiable under Section 8.2(a) only to the contrary, there shall be extent (i) required for the remediation of Materials of Environmental Concern to levels that will permit continued industrial uses at the Business Properties or that meet risk-based cleanup standards based upon industrial use of the Business Properties under applicable Environmental Laws as of the date the remediation is completed; or (ii) necessary to obtain a "no maximum liability for any Company Member further action" letter or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breachequivalent from a Governmental Entity with primary jurisdiction therefor.
(e) No Parent Indemnified Party may recover This Article VIII shall be the sole and exclusive remedy of (i) Buyer and its Affiliates against Seller or any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurredits Affiliates, and in determining their respective present or former officers, directors and employees, agents, attorneys or contractors, and (ii) Seller and its Affiliates against Buyer or any of its Affiliates, and their respective present or former officers, directors and employee, agents, attorneys or contractors, for any and all claims, Damages or other matters related directly or indirectly to the amount Business and arising at any time under Environmental Laws, or under any common law with respect to Materials of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregardedEnvironmental Concern.
(f) Notwithstanding anything herein Buyer and Seller hereby waive (and shall cause their respective Affiliates and the respective successors and assigns of Buyer, Seller and their respective Affiliates to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from waive) any Damages an amount of any insurance proceeds, indemnification payments, right to seek contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection recovery from each other or their respective Affiliates or any present or former officer, director or employee, agent attorney or contractor of Buyer, Seller or any of their respective subsidiaries with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 events related directly or Section 10.3.
(h) Notwithstanding anything indirectly to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except Business prior to the extent such punitive damages are awarded to a third party Closing that Buyer and its Affiliates or any of them may now or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by future have under any investigation conducted by Parent, Environmental Law or any knowledge acquired (common law providing for any remedy or capable right of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), recovery with respect to Environmental Matters or Materials of Environmental Concern other than as expressly provided for in this Article VIII. Buyer and Seller hereby release (and shall cause their respective Affiliates and the accuracy respective successors and assigns of Buyer, Seller and their respective Affiliates to release) each other and their respective Affiliates and all present or inaccuracy offormer officers, directors and employees, agents, attorneys or compliance withcontractors of Buyer, Seller or any representationof their respective subsidiaries from any and all such claims, warranty, covenant, agreement or obligation or the existence demands and causes of facts and circumstances that provide the basis for a Claim hereunderaction.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Hologic Inc), Asset Purchase and Sale Agreement (Trex Medical Corp)
Limitations. (a) In the case of any General Representation Claim, each Company Member No amount shall be severally and not jointly liable payable to the Purchaser or the Seller in satisfaction of claims for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim indemnification pursuant to Section 10.3(a) 8.1 or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims 8.2 unless and until Damages in the aggregate under amount of all Claims that have been incurred, paid or properly accrued exceed Losses arising therefrom exceeds $287,500 100,000 (the “DeductibleThreshold”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies once the Threshold has been reached, the respective Indemnified Party may make claims for indemnification and may receive amounts for all Losses (other than including the Tail Policy) or amount of the Threshold), (ii) obtain insurance coverage or other third party protection the Threshold shall not apply with respect to any particular matter. Each Losses resulting from, arising out of Parent or relating to fraud or willful misconduct, and Representative (on behalf C) no Losses resulting from a breach fraud or willful misconduct shall count towards satisfaction of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigationThreshold.
(gb) No The aggregate liability of the Seller for indemnification, and the aggregate amount of all payments required to be made by the Seller in satisfaction of claims for indemnification, under this Agreement, shall not exceed five percent (5%) of the Purchase Price (the “Cap”). The Cap shall not apply to any Losses based upon, arising out of, with respect to, or by reason of, fraud or willful misconduct. The attainment of the Cap shall be computed without considering Losses based upon, arising out of, with respect to, or by reason of, fraud or willful misconduct.
(c) The amount of any Losses for which an Indemnified Party is entitled to indemnity under this Article 8 shall be reduced by (i) the amount of insurance proceeds realized by the Indemnified Party or its Affiliates with respect to such Losses and (ii) the amount of any Tax benefit actually recognized in cash by the Indemnified Party or its Affiliates in the same Tax year in which the applicable Losses were incurred or in the following Tax year.
(d) Each Indemnified Party shall be entitled take all commercially reasonable steps to double recovery for mitigate any indemnifiable Damages even though Loss. In the event the Indemnified Party shall fail to take, or cause to be taken, such Damages may commercially reasonable steps, then notwithstanding anything in this Agreement to the contrary, the Indemnifying Party shall not be recoverable under more than one provision required to indemnify the Indemnified Party for that portion of Section 10.2 Losses that would reasonably have been expected to have been avoided if the Indemnified Party had taken, or Section 10.3caused to be taken, such commercially reasonable steps.
(he) Notwithstanding anything to the contrary contained in this Agreementherein, under no circumstances will any Indemnified Party shall be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case any Claim arising from an alleged breach of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement covenant or obligation of the Indemnifying Party if the Indemnified Party has knowledge of the facts or circumstances giving rise to such alleged breach on the existence of facts and circumstances that provide the basis for a Claim hereunderClosing Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Vecima Networks Inc.)
Limitations. (a) In the case of A. Indemnifying Party shall not be obligated to pay for any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) Loss or Section 10.3(c) Damage under this Article 9 (other than for Third-Party Claims) until the amount of such Loss or Damage for that claim exceeds a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d)threshold, in no event shall any Company Member have liability pursuant to this Article 10 in excess the aggregate, of the Merger Consideration payable one-hundred thousand Euro (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”€ 100,000), in which case event Indemnifying Party shall pay or be liable for all such Loss or Damage from the Parent Indemnified Parties may recover all Damages in excess of the Deductiblefirst Euro. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages The Threshold shall be adjusted annually on January 1 to compensate for inflation as reflected in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregardedInflation Index.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) B. Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnifying Party shall not be obligated to indemnify, defend, or hold harmless Indemnified Party against any Indemnification Claim pursuant to Article 9.2. (whether a direct claim or a Third-Party Claim) if such Indemnification Claim or corresponding Loss or Damage arises out of or results from Indemnified Party’s Gross Negligence or Willful Misconduct.
C. Except for Claims under the Environmental Agreement, the Indemnified Party must submit to the Indemnifying Party any claim pursuant to Article 9.2. (whether a direct claim or a Third-Party Claim) within three (3) years after the date on which the Indemnified Party had or should have had knowledge of any Loss or Damage, Third-Party Claim, or discovery of facts or circumstances upon which Indemnified Party could base a claim under Article 9.2.
D. For the avoidance of doubt, Indemnified Party must make a claim under Article 9.2. within such three (3) year period, after which time, the Indemnified Party waives any such Indemnification Claim, and that Indemnification Claim shall not be entitled brought or initiated by Indemnified Party against Indemnifying Party thereafter.
E. Without prejudice to recover exemplary anything to the contrary in the Agreement, a Party’s total liability to the other for any claim arising out of or punitive damages under this Article 10 in connection with the Agreement including without limitation for breach of contract, breach of warranty, breach of statutory duty, or tort, shall not exceed the price of the relevant quantity of the SUMF Item if delivered (except in case of supply of utilities, materials) or the price of the relevant service (in case of supply of services, facilities) if performed or if liability arises from a failure to deliver or to take delivery or to perform, the price of the relevant quantity of the SUMF Item had it been delivered (in case of supply of utilities, materials) or the price of the relevant service had it been performed (in case of supply of services, facilities). This limitation shall not apply in respect of liabilities resulting from Third-Party Claims, or from cases of fraud, Willful Misconduct and/or Gross Negligence.
F. With respect to any SUMF Items the provision of which requires Supplier to procure utilities from a Third-Party as indicated in the relevant Schedules or Sub-schedules, Supplier’s liability to Purchaser for any Loss or Damage incurred due to Supplier’s failure to provide such SUMF Item, when and to the extent such punitive damages are awarded to a third party failure is due in whole or in part to the case failure of fraudthe Third-Party utility provider to perform, intentional misrepresentation will be limited to the amount Supplier is contractually, or willful breach).
(i) The rights statutorily, permitted to indemnificationrecover from such Third-Party utility provider, compensation or reimbursement set forth in this Agreement without regard to the amount, if any, actually recovered by Supplier from such Third-Party utility provider. This limitation of liability shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable apply in respect of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.liabilities resulting from Third-Party Claims under Article 9.2
Appears in 2 contracts
Samples: Site Services Agreement (Hexion Inc.), Pernis Vad Site Services, Utilities, Materials and Facilities Agreement (Hexion Inc.)
Limitations. (a) In the case of any General Representation Claim, each Company Member Neither Transferor nor Transferee shall be severally and not jointly liable entitled to any recovery for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurredunless and until the total of all such party’s Damages under Section 7.2 exceeds $1,040,000, at which time such party shall be entitled to recover the aggregate amount of all Damages in excess of such threshold; provided, however, that the aggregate liability of each of Transferee, on the one hand, and Transferor, on the other hand, for indemnity under this Article VII shall not exceed $104,000,000. Notwithstanding anything in determining the amount foregoing to the contrary, the limitations contemplated by this Section 7.4(a) shall not apply to any claims for fraud or intentional, criminal, or willful misrepresentation or misconduct or for Damages arising out of any Damages in respect of or relating to the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregardedTransferor set forth in Section 3.10.
(fb) Notwithstanding anything herein to the contraryNOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3THE PARTIES EXPRESSLY AGREE THAT NEITHER TRANSFEROR NOR TRANSFEREE SHALL HAVE ANY LIABILITY TO ANY PARTY FOR ANY EXEMPLARY, there shall be deducted from any Damages an amount of any insurance proceedsPUNITIVE, indemnification paymentsINDIRECT, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costsCONSEQUENTIAL, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified PartyREMOTE, as applicableOR SPECULATIVE DAMAGES, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigationSAVE AND EXCEPT SUCH DAMAGES PAYABLE WITH RESPECT TO THIRD PARTY CLAIMS FOR WHICH SUCH INDEMNIFYING PARTY IS OBLIGATED TO PROVIDE INDEMNIFICATION UNDER SECTION 7.2.
(gc) No Indemnified Party Neither Transferor nor Transferee shall be entitled to double any recovery for any indemnifiable Damages even though for breach of any representation or warranty if such Indemnified Party had Knowledge of the breach giving rise to such Damages may be recoverable under more than one provision as of the Execution Date or if the facts or circumstances underlying such breach are disclosed in the Disclosure Schedules to the extent permitted pursuant to Section 10.2 or Section 10.35.4.
(hd) Notwithstanding anything From and after the Closing, Southampton shall have no liability or obligation to the contrary contained in this Agreementindemnify, under no circumstances will save or hold harmless or otherwise pay, reimburse or make any Indemnified Party be entitled to recover exemplary whole for or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case on account of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected any indemnification claim made by any investigation conducted by Parent, or Indemnified Party for any knowledge acquired (or capable breach of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, or agreement of Transferor or obligation or the existence Transferee, and neither Transferor nor Transferee shall have any right of facts and circumstances that provide the basis for a Claim hereundercontribution against Southampton with respect to such matters.
Appears in 2 contracts
Samples: Contribution Agreement, Contribution Agreement (Enviva Partners, LP)
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there no party obligated to provide indemnification pursuant to this ARTICLE 10 (an “Indemnitor”) shall be no maximum liability liable for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge Damages of fraud, intentional misrepresentation or willful breach.
a party entitled to indemnification (ean “Indemnitee”) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims pursuant to Section 10.2(a) (i) unless and until Damages in the aggregate under amount of all Claims that have been incurred, paid or properly accrued exceed such Damages incurred by the Indemnitee exceeds $287,500 200,000 (the “DeductibleBasket”), in which case event the Parent Indemnified Parties may recover Indemnitor shall be liable for all such Damages in excess above the amount of the Deductible. No Company Indemnified Party may recover any Basket, or (ii) to the extent that such Damages in respect of Parent General Claims unless and until Damages exceed $2,000,000 in the aggregate under all Claims that have been incurred, paid or properly accrued exceed (the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages“Cap”); provided, however, that none of notwithstanding the foregoing provisions, (A) Purchaser Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party Persons shall be entitled to double recovery collect Damages hereunder for breaches or inaccuracies of the Fundamental Representations in an amount not to exceed the Purchase Price and without regard to the Basket, and (B) any indemnifiable Damages even though such Damages may resulting from fraud shall be recoverable under more than one provision of Section 10.2 or Section 10.3specifically exempt from the Basket and the Cap.
(hb) Notwithstanding anything For purposes of computing the amount of Damages incurred by an Indemnitee there shall be deducted an amount equal to the contrary contained amount of any insurance proceeds actually received by such Indemnitee in this Agreementconnection with such Damages (net of Taxes, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent deductibles and out-of-pocket costs incurred in connection with such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breachinsurance recovery).
(ic) The rights For purposes of computing the amount of Purchaser Damages for indemnification claims made pursuant to indemnificationSection 10.2(g), compensation Purchaser Damages shall not include any Damages that arise out of or reimbursement set forth in connection with Purchaser’s operation of the Business or use of the Purchased Assets following the Closing (excluding the transactions contemplated by this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable in respect of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect Sellers’ winding up and liquidation of inventory to the accuracy extent these are claimed to be Purchaser’s operations or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or use of the existence of facts and circumstances that provide the basis for a Claim hereunderPurchased Assets).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Systemax Inc), Asset Purchase Agreement (Pcm, Inc.)
Limitations. (a) In the case of any General Representation ClaimEXCEPT FOR CLAIMS OF PATENT INFRINGEMENT, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefromBREACHES OF ARTICLE 11 OR 12, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation CapTHE INDEMNIFICATION PROVIDED ABOVE, OR AS MAY BE EXPLICITLY PROVIDED IN THE TOPO LICENSE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL LOSSES OR DAMAGES OF THE OTHER PARTY, WHETHER BASED UPON CONTRACT, NEGLIGENCE, OR ANOTHER THEORY OF LAW. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular dateFurthermore, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, Party seeking indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 13 shall inform the indemnifying Party in writing of the relevant claim in writing as soon as reasonably practicable after it receives notice of the claim, shall permit the indemnifying Party to assume direction and control of the defense of the claim (including the right to select defense counsel, which counsel shall be reasonably satisfactory to the indemnified Party, and the right to settle the claim, provided such settlement does not admit fault or wrongdoing on the part of any indemnitee, incur non-indemnified liability on the part of any indemnitee, adversely affect any of the intellectual property rights subject to this Agreement or the TOPO License, or otherwise adversely affect either Party’s ability to perform its obligations under this Agreement or Develop or Commercialize Licensed Products under the TOPO License), and shall cooperate as reasonably requested by the indemnifying Party (at the expense of the indemnifying Party) in the defense of the claim. The failure or delay to so notify the indemnifying Party shall not relieve the indemnifying Party of any obligation or liability that it may have to the indemnitee except to the extent that the indemnifying Party demonstrates that its ability to defend or resolve such punitive damages are awarded Third Party claim is adversely affected thereby. No indemnitee shall enter into any settlement of any claim subject to a third party or in indemnification under this Article 13 without the case prior written consent of fraudthe indemnifying Party with respect thereto, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement which shall not be affected by any investigation conducted by Parentunreasonably withheld, delayed or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderconditioned.
Appears in 2 contracts
Samples: Master Services Agreement (Pharmaceutical Product Development Inc), Master Services Agreement (Furiex Pharmaceuticals, Inc.)
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled the following limitations shall apply to recover exemplary or punitive damages indemnification claims under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).Agreement:
(i) The rights the Seller shall be liable with respect to indemnificationclaims under Section 6.1(a) for only that portion of the aggregate Damages related to such claims, compensation or reimbursement set forth in considered together, which exceeds $1,000,000;
(ii) the aggregate liability of the Seller for all Damages under this Agreement Article VI shall not exceed an amount equal to $28,000,000; and
(iii) the Buyer shall not be affected entitled to make any claim for indemnification with respect to any matter to the extent the Purchase Price has been adjusted to reflect such matter pursuant to Section 1.4, and the amount of any Damages for which a Party is entitled to indemnification as provided under this Article VI, shall be calculated net of any accruals, reserves or provisions therefor reflected in the determination of the Kellwood Closing Net Worth Amount shown in the Final Closing Statement.
(b) In no event shall any Indemnifying Party be responsible or liable for any Damages or other amounts under this Article VI that are consequential, in the nature of lost profits, diminution in the value of property, special or punitive or otherwise not actual damages. Each Party shall (and shall cause its Affiliates to) use reasonable commercial efforts to pursue all legal rights and remedies available in order to minimize the Damages for which indemnification is provided to it under this Article VI.
(c) The amount of Damages recoverable by an Indemnified Party under this Article VI with respect to an indemnity claim shall be reduced by (i) the amount of any investigation conducted payment received by Parent, or any knowledge acquired such Indemnified Party (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Datean Affiliate thereof), with respect to the accuracy Damages to which such indemnity claim relates, from an insurance carrier, and (ii) the amount of any Tax benefit realized or inaccuracy ofrealizable by such Indemnified Party (or an Affiliate thereof) which is attributable to the Damages to which such indemnity claim relates. For purposes of this Section 6.5(c), the Tax benefit realized by any Indemnified Party (or compliance withan Affiliate thereof) shall be determined as of the date of the receipt of payment from the Indemnifying Party by calculating the present value of all expected reductions in Tax payments attributable to any expected deductions or decreases in income associated with the Damages to which such indemnity claim relates, assuming that the Indemnified Party is always subject to a total combined Tax rate of 45% and using a discount rate of 8% (compounded monthly). An Indemnified Party shall use reasonable commercial efforts to pursue, and to cause its Affiliates to pursue, all insurance claims and Tax benefits to which it may be entitled in connection with any representationDamages it incurs, warrantyand the Parties shall cooperate with each other in pursuing insurance claims with respect to any Damages or any indemnification obligations with respect to Damages. If an Indemnified Party (or an Affiliate) receives any insurance payment in connection with any claim for Damages for which it has already received an indemnification payment from the Indemnifying Party, covenantit shall pay to the Indemnifying Party, within 30 days of receiving such insurance payment, an amount equal to the excess of (A) the amount previously received by the Indemnified Party under this Article VI with respect to such claim plus the amount of the insurance payments received, over (B) the amount of Damages with respect to such claim which the Indemnified Party has become entitled to receive under this Article VI.
(d) To the extent any representation or warranty of the Seller in Article II is, to the knowledge of the Buyer on or prior to the Closing Date, untrue or incorrect, the Buyer shall have no rights to indemnification under this Article VI by reason of such untruth or inaccuracy.
(e) Except with respect to claims for equitable relief, including specific performance, made with respect to breaches of any covenant or agreement or obligation or contained in this Agreement, the existence rights of facts the Indemnified Parties under this Article VI shall be the sole and circumstances that provide exclusive remedies of the basis for a Claim hereunder.Indemnified Parties and their respective Affiliates with respect to claims covered by Section 6.1 or
Appears in 1 contract
Limitations. Notwithstanding anything to the contrary in this Article VII or elsewhere in this Agreement:
(a) In Each Contributor Party’s aggregate Liability under this Agreement and from the case transactions contemplated hereby shall not exceed its pro rata share of any General Representation Claim, each Company Member the value of the Consideration. The Partnership’s aggregate Liability under this Agreement and from the transactions contemplated hereby shall not exceed the value of the Consideration. The value of the Consideration for purposes of this Section 7.5(a) shall be severally and not jointly liable for determined by multiplying the number of applicable Common Units by the closing price of such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that Common Units on the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation CapClosing Date.
(b) In the case Each Indemnified Party shall take, and cause its Affiliates to take, commercially reasonable steps to mitigate any Loss for which it would otherwise be entitled to indemnification pursuant to this Article VII upon becoming aware of any Claim under (i) Section 10.2(a) with respect event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to any Fundamental Representation or any certifications made with respect thereto pursuant the minimum extent necessary to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for remedy the breach that gives rise to such Company Member’s Pro Rata Share of any Damages resulting therefrom, Loss; provided that the aggregate liability any reasonable cost incurred by a Party to mitigate any such Loss will be deemed a Loss for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3purposes of this Article VII.
(c) Subject to Section 10.4(d)NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d)NEITHER THE PARTNERSHIP NOR THE CONTRIBUTOR PARTIES NOR THEIR RESPECTIVE AFFILIATES SHALL BE LIABLE HEREUNDER TO ANY INDEMNIFIED PARTY FOR ANY LOST PROFITS OR PUNITIVE, in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger ConsiderationCONSEQUENTIAL, REMOTE, SPECULATIVE, SPECIAL OR INDIRECT DAMAGES, EXCEPT TO THE EXTENT SUCH LOST PROFITS OR DAMAGES ARE INCLUDED IN ANY ACTION BY A THIRD PARTY AGAINST SUCH INDEMNIFIED PARTY FOR WHICH IT IS ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Samples: Contribution Agreement (Mid-Con Energy Partners, LP)
Limitations. (a) In Notwithstanding anything herein to the case contrary, Seller shall not be responsible for any Losses until the cumulative aggregate amount of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Losses exceed $75,000 (the “Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General ClaimDeductible”), the aggregate liability and then shall only be liable for Losses in excess of the Parent Indemnified Damages Deductible, except for Losses incurred due to the breach of the representations and warranties in Section 2.13 or Section 2.17 hereof, in which case the Indemnifying Parties for all such claims shall be capped at liable back to the General Representation Capfirst dollar of such Losses.
(b) In Notwithstanding anything herein to the case contrary, the aggregate amount of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member Losses for which Seller shall be severally liable is $1,000,000; provided, that, such limitation shall not apply to Losses incurred as a result of breach of the representations and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid warranties in Section 2.13 or payable to the Company Members pursuant to Section 2.32.17 hereof.
(c) Subject Notwithstanding anything herein to Section 10.4(d)the contrary, the amount of Losses suffered by an Indemnified Party shall be reduced by any insurance proceeds realized by and paid to the Indemnified Party in no event respect of such claim and shall be reduced by an amount equal to any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) Tax benefits attributable to such Company Member pursuant to Section 2.3claim. Subject to Section 10.4(d), in no event An Indemnified Party shall submit all eligible claims and diligently pursue recovery under all insurance policies under which any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger ConsiderationLosses may be insured.
(d) Notwithstanding anything herein to the contrary, there no Indemnifying Party shall be no maximum liability liable to or otherwise responsible for any Company Member consequential damages, punitive damages or Parent Indemnified Party who committed, participated for diminution in value or had actual knowledge of fraud, intentional misrepresentation or willful breachlost profits.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrarycontrary , for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall not be entitled to double recovery indemnification for any indemnifiable Damages even though Losses resulting from a breach of representation or warranty if the Indemnified Party had knowledge of such Damages may be recoverable under more than one provision of Section 10.2 breach on or Section 10.3.
(h) Notwithstanding anything prior to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach)Closing.
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Samples: Stock Purchase Agreement (Dts, Inc.)
Limitations. (a) In the case Without limitation of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company MemberBuyer’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to rights under Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) 11.2 with respect to any Fundamental Representation of the representations or warranties set forth in Article V, Buyer shall be deemed to have waived and released, and covenants that it shall waive and release, any certifications made and all claims for Losses related to conditions in, on, or under the Properties that cause the Property or the Company Group to be in violation of Environmental Laws and other defects or damages related to Environmental Liabilities or the environmental condition of the Assets. Except as expressly provided in Section 11.2, Buyer (on behalf of itself, each of the other Buyer Indemnitees, and their respective insurers and successors in interest) hereby releases and discharges and agrees to indemnify, defend, and hold harmless Seller Indemnitees from and against any and all Environmental Liabilities and any and all Losses with respect thereto pursuant to Section 8.2(aany matter or circumstance relating to Environmental Laws, the release of materials into the environment, or protection of the environment or health, EVEN IF SUCH ENVIRONMENTAL LIABILITIES OR LOSSES ARE CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER SOLE, JOINT, OR CONCURRENT), (ii) STRICT LIABILITY, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR OTHER LEGAL FAULT OF SELLER INDEMNITEES EXCEPT FOR FRAUD, FOR WHICH SELLER SHALL REMAIN LIABLE. Except as set forth in Article V, Xxxxx acknowledges that Seller has not made and will not make any representation or warranty regarding any matter or circumstance relating to Environmental Laws, the release of clauses (b) through (j) materials into the environment, or protection of Section 10.2 ((i) the environment or health, and (ii), collectively, “Special Matters”), each Company Member that nothing in this Agreement or otherwise shall be severally and not jointly liable for construed as such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid a representation or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3warranty. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The IV shall not limit Buyer’s rights to indemnification, compensation or reimbursement seek and obtain indemnification for Losses on the terms set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderArticle XI.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (HNR Acquisition Corp.)
Limitations. (a) In The Seller shall not be liable for Damages which, individually considered, are lower than an amount equal to €10,000 (the case of any General Representation Claim, each Company Member “De Minimis Exclusion”). Any Damages not exceeding the De Minimis Exclusion shall be severally and considered non-indemnifiable Damages under this Agreement; provided, however, that a series of Claims of the same nature having in common the same cause or origin shall be considered to be a single Claim for the purposes of the De Minimis Exclusion. With respect to claims for Damages arising under Section 7.1.(a), the Seller shall not jointly be liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that Damage until the aggregate liability amount of such Damages exceeds €300,000 (at which point the Company Members Seller shall become liable for all General Representation Claims shall be capped at Damages from the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(cfirst Euro) (other than a claim the “Tipping Basket”). The limitations set forth in this paragraph (a), including the De Minimis Exclusion and the Tipping Basket, shall not apply to Damages based upon, in connection with a Fundamental Representationor resulting from (i) (a “Parent General Claim”)fraud, intentional or knowing misrepresentation, willful breach or willful misconduct on the aggregate liability part of the Parent Indemnified Parties for all such claims shall Seller, (ii) a breach, inaccuracy or failure to be capped at true of any of the General Representation CapFundamental Representations, or (iii) any of the Special Indemnification Matters.
(b) In The aggregate total amount in respect of which the case Seller may be liable under Section 7.1.(a) (other than for, or in connection with or arising out of any Claim under (ia Fundamental Representation) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a)the Globant Indemnified Parties shall not exceed the amount of €20,000,000; provided, (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii)however, collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability Liability of the Seller resulting from any of the Special Indemnification Matters and for the Company Members for all Claims for Special Matters breach of Fundamental Representations shall be capped at the Merger Consideration paid or payable limited to the Company Members pursuant to Section 2.3Purchase Price effectively received by the Seller; provided, further, that the aggregate Liability of the Seller in respect of fraud, intentional or knowing misrepresentation, willful breach or willful misconduct shall not be limited.
(c) Subject Notwithstanding anything else herein to Section 10.4(d)the contrary, in no event shall any Company Member Globant Indemnified Party will have liability pursuant the right to this Article 10 in excess withhold from, reduce, set-off against and retain from any Contingent Payments, such Globant Indemnified Party’s good faith, reasonable estimate of any indemnification to which such Globant Indemnified Party is entitled hereunder; provided that, if the Merger Consideration payable (inclusive final amount of Damages for such indemnification claim is less than the amount by which the portion of the Holdback Amount and applicable Contingent Payment was withheld, reduced, set-off or retained, then such Globant Indemnified Party shall promptly make payment of such difference. The exercise by Globant Indemnified Parties of their right to set-off against, reduce, retain or withhold Contingent Payments may be exercised in whole or in part at the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) election of the Globant Indemnified Parties. If the Globant Indemnified Parties are not, following an election to such Company Member pursuant to exercise the rights set forth in this Section 2.3. Subject to Section 10.4(d7.5(c), completely and fully indemnified for all such Damages, such Globant Indemnified Party shall have the right to payment of any such amounts (or any portion thereof) corresponding to Damages directly from the Seller subject to any applicable limitations set forth in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger ConsiderationSection 7.5.
(d) Notwithstanding anything herein in this Agreement to the contrary: (i) the Seller acknowledges and agrees that it does not have any right of indemnification, there shall be no maximum liability for contribution or reimbursement from or remedy against the Company as a result of any indemnification it is required to make under or based upon, arising out of, caused by or in connection with the breach or inaccuracy of any representation, warranty, covenant or other obligation contained in this Agreement or any other Transaction Document (including any such breach or inaccuracy of a representation, warranty, covenant or other obligation of or with respect to the Company); and (ii) the Seller hereby releases, waives and forever discharges any right to indemnification, contribution or reimbursement that it may have at any time against the Company Member under or Parent Indemnified Party who committedbased upon, participated arising out of, caused by or in connection with the breach or had actual knowledge inaccuracy of fraudany representation, intentional misrepresentation warranty, covenant or willful breachother obligation in this Agreement or any other Transaction Document.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement indemnification set forth in this Agreement ARTICLE 7 shall not be affected by (i) any investigation conducted by Parent, or on behalf of any Globant Indemnified Party or any knowledge acquired (or capable of being acquired) at by any time (Globant Indemnified Party, whether before or after the date of this Agreement Date or the Closing Date), with respect to the accuracy inaccuracy or inaccuracy of, or compliance with, noncompliance with any representation, warranty, covenant, agreement covenant or obligation which is the subject of indemnification hereunder, or (ii) any waiver by the Purchaser of any closing condition relating to the accuracy of representations and warranties or the existence performance of facts or compliance with agreements and circumstances that provide covenants.
(f) Notwithstanding anything to the basis contrary in this Agreement, for purposes of determining (i) whether there has been a Claim hereunderbreach of any representation or warranty set forth in ARTICLE 5, and (ii) the amount of Damages for which the Purchaser may be entitled to indemnification under this ARTICLE 7, (1) each such representation or warranty shall be deemed to have been made without any qualifications or limitations as to materiality (including any qualifications or limitations made by reference to a Material Adverse Effect or similar materiality qualifiers), and (2) in connection with Damages in any currency other than US Dollars, the relevant amount shall be converted at the Applicable FX Rate as of the close of business of the date immediately prior to the date when such Damage was effectively suffered by the Indemnified Party.
Appears in 1 contract
Limitations. Notwithstanding any other provisions hereof:
(a) In except in the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d)Fraud, in no event shall will any Company Member have liability pursuant to Party be liable under this Article 10 in excess of the Merger Consideration payable Agreement (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceedsfor indemnification or otherwise) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified other Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to other Person for (i) seek recovery against any insurance policies (other than the Tail Policy) punitive or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreementexemplary damages, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded paid to a third Third Party or (ii) any consequential damages, except to the extent reasonably foreseeable or paid to a Third Party;
(b) the amount of Damages for which any party or in the case of fraud, intentional misrepresentation or willful breach).
to this Agreement may be entitled to seek indemnification under this Agreement will be reduced by: (i) The rights the amount of any insurance proceeds or other payment from a Third Party that is received by such party (after taking into account any actual increase in premiums payable for such insurance policies solely as a result of such recovery) with respect to indemnificationsuch Damages; (ii) any indemnity, compensation contribution or reimbursement set forth other similar payment received or reasonably expected to be received by the Indemnified Party in respect of any such Damages; and (iii) the amount of any Tax benefit realized or reasonably expected to be realized by the Indemnified Party with respect to such Damages;
(c) no party hereto shall be entitled to recover any Damages relating to any matter arising under one provision of this Agreement (the “Subject Provision”) to the extent that such party has already recovered or claimed Damages with respect to such matter pursuant to another provision of this Agreement and recovery under such Subject Provision in a duplication of recovery with respect to such matter;
(d) each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Damages upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto; and
(e) no Party shall be liable hereunder for any Damages based upon or arising out of any inaccuracy or breach of any of the representations or warranties contained in this Agreement shall not be affected by any investigation conducted by Parentif the Person who otherwise may have a claim for such Damages, or any of such Person’s Representatives, had knowledge acquired (of such inaccuracy or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect breach prior to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderClosing.
Appears in 1 contract
Limitations. Notwithstanding anything to the contrary herein:
(a) In the case of Any claim by an indemnified party against any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) indemnifying party under this Agreement (other than a claim in connection with a Fundamental Representationunder Sections 9.4(a) or (a “Parent General Claim”9.4(b), or Articles V-VIII, or Sections 9.1-9.3, 9.5-9.8 and 12.15-12.18) shall be payable by the indemnifying party only in the event and to the extent that the accumulated amount of all claims in respect of such indemnifying party's obligations to indemnify under this Agreement shall exceed the amount of $100,000 in the aggregate liability of (the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap"Indemnification Threshold").
(b) In the case If any party becomes aware of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as or any breach or non-fulfillment of any particular datecovenant or obligation of another party hereunder, any materiality, Material Adverse Effect the party becoming so aware shall promptly notify the other party or similar qualification limiting the scope parties of such representation breach or warranty non-fulfillment and afford such other party or parties a reasonable opportunity to cure such breach or non-fulfillment prior to seeking any indemnification hereunder. An indemnified party's failure to give timely notice shall be disregardednot constitute a defense (in part or in whole) to any claim for indemnification by such party except and only to the extent that such failure shall result in any material prejudice to the indemnifying party.
(fc) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the The amount of Damages incurred under Section 10.2 damages payable by an indemnifying party to an indemnified party hereunder with respect to a claim based on particular facts, circumstances or Section 10.3, there liabilities shall be deducted from any Damages an amount of any insurance proceedsreduced by amounts previously paid by such indemnifying party or its affiliates with respect to such facts, indemnification payments, contribution payments circumstances or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith liabilities to the extent paid or payable and net such recovery constitutes a double recovery for the same claim.
(d) Each indemnified party shall use reasonable efforts to mitigate damages with respect to claims hereunder. The indemnifying party shall, upon payment to the indemnified party of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection damages with respect to any particular matter. Each of Parent and Representative (on behalf claim, be subrogated to the rights of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a indemnified party against third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), parties with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide matters forming the basis for a Claim hereundersuch claim, to the extent of such damages paid. The foregoing subrogation rights shall in no event permit the indemnifying party to pursue any claims against any Affiliate of the indemnified party.
Appears in 1 contract
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate The liability of the Company Members for all General Representation Claims Indemnifying Party to indemnify the Indemnified Party pursuant to Sections 10.2(a) and (b) and Sections 10.3(a) and (b) shall be capped at limited to Indemnification Claims as to which an Indemnified Party has given the General Representation Cap. In Indemnifying Party written notice in accordance with Sections 10.5(a) and (b) within the case of any claim period following the Closing Date specified for each respective matter pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages10.1; provided, however, that none the provisions for indemnification contained in Section 10.2(a) and Section 10.3(a) (other than with respect to the Fundamental Representations) with respect to breaches of representations and warranties shall be effective only if the Indemnified Party has suffered, incurred, sustained or become subject to Damages in excess of $25,000 in the aggregate (the “Deductible Amount”) (it being understood and agreed that the Indemnified Party shall only be entitled to indemnification for such Damages to the extent such Damages exceed the Deductible Amount).
(b) The liability of the Indemnifying Party to indemnify the Indemnified Parties Party shall in no event exceed the Purchase Price (other than in respect of any claim for fraud, willful misconduct or intentional misrepresentation).
(c) No Indemnified Party shall have any obligation to (i) expend any out-of-pocket expense to seek recovery against under any insurance policies (benefits and proceeds or from any other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Person; provided that such Indemnified Party shall be entitled provide prompt notice of any Damages subject to double recovery for any indemnifiable Damages even though indemnification hereunder to its insurance carrier and shall reasonably cooperate with such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3insurance carrier.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Limitations. (a) In Anything contained in this Agreement to the case of any General Representation Claimcontrary notwithstanding, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefromexcept as otherwise set forth in Section 8.5(b), provided that (i) the aggregate liability of the Company Members a Party for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Damages (excluding Damages resulting from Third Party Actions indemnifiable under this Agreement) under Section 10.3(a8.2(a) or Section 10.3(c8.2(b) shall not exceed [***] of the Aggregate Consideration actually paid to ImmunoGen, and (other than ii) except for payments due under ARTICLE IV, a claim Party shall not be liable under this ARTICLE 8 unless and until the aggregate Damages (excluding Damages incurred resulting from Third Party Actions indemnifiable under this Agreement) for which it would otherwise be liable under this ARTICLE 8 exceeds [***] (at which point such Party shall become liable for the [***] under this ARTICLE 8).
(b) Anything contained in connection with a Fundamental Representation) (a “Parent General Claim”)this Agreement to the contrary notwithstanding, except for Damages resulting from Third Party Actions indemnifiable under this Agreement, the aggregate liability of the Parent Indemnified Parties a Party for all such claims shall be capped at the General Representation Cap.
(b) In the case Damages under this ARTICLE 8 for breach of any Claim under (i) Section 10.2(a) with respect representation or warranty by such Party contained in Sections [***] shall not exceed [***] of the Aggregate Consideration actually paid to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3ImmunoGen.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there ImmunoGen shall have no liability for Damages arising from a breach of [***], if such breach is the result of the fact that an ImmunoGen agent or a Person involved in the manufacture or development of IMGN529 other than an officer or employee, [***], and ImmunoGen did not [***].
(d) EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 7.4 OR IMMUNOGEN’S BREACH OF SECTION 7.5, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (i) ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING ANY DAMAGES RESULTING FROM LOSS OF PROFITS, LOSS OF BUSINESS OR LOSS OF GOODWILL), OR (ii) COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, EVEN IF EITHER PARTY IS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY PUNITIVE OR EXEMPLARY DAMAGES. For purposes of clarity, an Indemnified Party’s monetary liability under a Third Party Action for such Third Party’s special, incidental, indirect or consequential damages, or for any exemplary or punitive damages payable to such Third Party in connection with such Third Party Claim, shall be no maximum liability for any Company Member or Parent deemed to be the direct damages of such Indemnified Party who committed, participated in for purposes of this ARTICLE 8. No breach by ImmunoGen hereunder shall permit Debiopharm the right to rescind this Agreement or had actual knowledge any of fraud, intentional misrepresentation or willful breachthe transactions contemplated hereby.
(e) No Parent Indemnified Party may recover limitation or condition of liability provided in this Section 8.5 shall apply to any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregardedresulting from fraud.
(f) Notwithstanding anything herein Each Party shall (and shall cause its Affiliates to) [***] to the contrarytake such actions, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes pursue such legal rights and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicableremedies available, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts order to mitigate Damages in accordance with the common law doctrine of mitigation.
(gor potential Damages) No Indemnified Party shall be entitled for which indemnification is provided to double recovery for any indemnifiable Damages even though such Damages may be recoverable it under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Samples: Exclusive License and Asset Purchase Agreement (Immunogen Inc)
Limitations. The Indemnifying Party’s liability for all claims for indemnifiable Losses made under Section 7.2(a)(i) (aeach a “Claim”) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable subject to the following limitations: (x) the Indemnifying Party shall have no liability for such Company Member’s Pro Rata Share any individual Claim until the amount of any Damages resulting therefrom[***] INDICATES MATERIAL THAT WAS OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT WAS REQUESTED. ALL SUCH OMITTED MATERIAL WAS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, provided that AS AMENDED. the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant Loss finally determined to Section 10.3(a) have been incurred or Section 10.3(c) paid equals or exceeds $50,000 (other than a claim in connection with a Fundamental Representation) (each, a “Parent General ClaimQualified Loss”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that y) the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party shall have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that amount of the Qualified Losses finally determined to have been incurred, incurred or paid or properly accrued shall exceed $287,500 [***] ([***]) of the “Deductible”)Purchase Price, in which case the Parent Indemnified Parties may recover Indemnifying Party shall be liable for all Damages in excess Qualified Losses, and (z) the Indemnifying Party’s aggregate liability for all such Losses shall not exceed [***] ([***]) of the DeductiblePurchase Price. No Company Indemnified Party may recover any Damages None of the limitations set forth in respect of Parent General Claims unless and until Damages this Section 7.3(a) shall apply in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in Losses or other indemnification matter based upon, arising out of, or relating to (i) intentional misrepresentations, fraud or criminal matters or (ii) any misrepresentation or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 3.1 (Organization, Qualification and Power), 3.2 (Authorization of Transaction), 3.5 (Title to Assets) or Section 10.33.14 (Taxes) (collectively, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages“Fundamental Representations”); provided, however, that none the Indemnifying Party’s aggregate liability for all such Losses resulting from a breach of any of the Indemnified Parties Fundamental Representations shall have not exceed the Purchase Price, inclusive of any obligation other amounts actually paid out pursuant to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except VII; provided, further, for the sake of clarity, that to the extent such punitive damages are awarded to a third party or in the case of fraudBuyer is an Indemnified Party, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis Buyer may only obtain recovery for a Loss from a Claim hereunderagainst either Seller or Vivus Real Estate, but not both, as the Indemnifying Party.
Appears in 1 contract
Samples: Asset Purchase Agreement
Limitations. Notwithstanding Sections 10.1 and 10.2 hereof, the rights of the parties to be indemnified and held harmless under this Agreement shall be limited as follows: (a) In the case of any General Representation Claim, each Company Member No claim for indemnity by a Buyer Indemnified Party pursuant to Section 10.1(a) hereof shall be severally made unless and not jointly liable until, and only to the extent that, the aggregate dollar amount of all such claims shall have exceeded $110,000, and after such amount has been exceeded the Buyer Indemnified Party shall be indemnified for all such Company Member’s Pro Rata Share Losses back to the first dollar; (b) No claim for indemnity by a Seller Indemnified Party pursuant to Section 10.2(a) hereof shall be made unless and until the aggregate dollar amount of any Damages resulting therefromall such claims shall have exceeded $110,000, provided that and after such amount has been exceeded the Seller Indemnified Party shall be indemnified for all such Losses back to the first dollar; (c) The maximum aggregate liability of the Company Members any party for all General Representation Claims indemnification claims made pursuant to Section 10.1(a) or Section 10.2(a) hereof shall be capped at limited to the General Representation CapPurchase Price. In No claim pursuant to Section 10.1(a) and Section 10.2(a) may be asserted under this Agreement unless either (i) the case party making the claim gives the party against whom the claim is to be made notice of such claim before the end of the applicable survival period or (ii) the party against whom the claim would be made has actual knowledge of the facts which are the basis of the claim. The liability of a party with respect to any claim pursuant to Section 10.3(a) 10.1 or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims 10.2 hereof shall be capped at the General Representation Cap.
(b) In the case of any Claim under offset dollar for dollar by (i) Section 10.2(a) with any insurance proceeds received by the Indemnitee after the Effective Time in respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a)of the Losses involved, and (ii) any other recovery made by the Indemnitee from any third party on account of clauses (bthe Losses involved. Buyer agrees that before any indemnity obligations can be sought against Seller or GEO for a breach of the representations and warranties set forth in Section 5.7(a) through (j) or Section 5.8 of Section 10.2 ((i) this Agreement Buyer must make a claim under its title insurance policy and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable only pursue Seller or GEO for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 damages in excess of the Merger Consideration payable (inclusive of amounts recovered under such title insurance policy. Nothwithstanding the portion of foregoing sentence, the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability survival period for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether indemnity for a breach of a representation Section 5.7(a) or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty Section 5.8 shall be disregardedtolled while Buyer pursues claims under its title insurance policy.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Limitations. Notwithstanding anything to the contrary contained in this Agreement or in any other Transaction Document:
(a) In the case of any General Representation Claim, each Company Member shall (i) No Indemnified Party will be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant entitled to indemnification under Section 10.3(a7.1(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j7.2(a) of Section 10.2 ((i) and (ii)this Agreement, collectivelyas applicable, “Special Matters”), each Company Member shall be severally and not jointly liable for unless such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 Indemnified Party has incurred Losses in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages $625,000 in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company such Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall will be disregarded.
(f) Notwithstanding anything herein entitled to the contrary, for purposes of calculating or determining the amount of Damages incurred indemnification under Section 10.2 7.1(a) or Section 10.3, there shall be deducted from any Damages an amount 7.2(a) of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Partythis Agreement, as applicable, for the aggregate Losses with respect to such claims, including those incurred prior to exceeding the Deductible; and (ii) the maximum aggregate liability of the Indemnifying Party for Losses to which the Indemnified Party is entitled to indemnification under Section 7.1(a) or Section 7.2(a) of this Agreement, as applicable, shall be limited to $12,500,000 in connection with such Damagesthe aggregate; provided, however, that none neither the Deductible nor the maximum aggregate liability provided in (ii) herein shall apply to any claims of, or causes of action arising out of, involving, or otherwise in respect of (1) any Fundamental Representation, (2) the representations in Section 3.5, or (3) Fraud.
(b) If Contributor breaches any representation or warranty for which indemnification may be provided under Section 7.1(a), then, solely for purposes of calculating the dollar amount of Losses for which any Contributee Indemnified Parties Party is entitled to indemnification for such breach, each of such representations and warranties that contain any qualification as to materiality will be deemed and interpreted to be a representation or warranty made without such qualification.
(c) If Contributee or STAR breaches any representation or warranty for which indemnification may be provided under Section 7.2(a), then, solely for purposes of calculating the dollar amount of Losses for which any Contributor Indemnified Party is entitled to indemnification for such breach, each of such representations and warranties that contain any qualification as to materiality will be deemed and interpreted to be a representation or warranty made without such qualification.
(d) The amount of any Loss for which indemnification is provided under this Article 7 shall have any obligation to be net of (i) seek recovery against any insurance policies (other than amounts recovered by the Tail Policy) Indemnified Party pursuant to any indemnification by, or indemnification agreement with, any Third Party or, (ii) obtain third party insurance coverage proceeds (for the avoidance of doubt, not including self-insurance or insurance with a captive insurance Affiliate) or other third party protection with respect to any particular mattersources of reimbursement received, which shall be an offset against such Loss. Each of Parent and Representative (on behalf of the Company Members) The Indemnified Party shall use commercially reasonable efforts to mitigate Damages in accordance with seek recovery from all such sources to minimize any Loss for which indemnification is provided under this Article 7. If the common law doctrine amount to be netted hereunder from any payment required under this Article 7 is determined after payment by the Indemnifying Party of mitigation.
(g) No any amount otherwise required to be paid to an Indemnified Party pursuant to this Article 7, the Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything repay to the contrary contained in this AgreementIndemnifying Party, under no circumstances will promptly after such determination, any Indemnified amount that the Indemnifying Party be entitled would not have had to recover exemplary or punitive damages under pay pursuant to this Article 10 (except to 7 had such determination been made at the extent time of such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach)payment.
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Samples: Contribution and Purchase Agreement (Steadfast Apartment REIT, Inc.)
Limitations. (a) In Except as otherwise specifically provided for herein, the case rights and remedies of any General Representation Claim, each Company Member the parties under this Section shall be severally the sole and not jointly liable exclusive remedy for such Company Member’s Pro Rata Share breaches of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Capthis Agreement.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member Neither party shall not be severally and not jointly liable for breaches of its representations and warranties contained in this Agreement until the other has suffered aggregate losses in excess of $250,000 after which point, the party in breach shall only be obligated to indemnify the other against further losses in excess of such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3amount.
(c) Subject to Section 10.4(d), The aggregate liability of a party hereto for all claims arising from breaches of its representations and warranties contained in no event this Agreement shall any Company Member have liability pursuant to this Article 10 in excess not exceed 50% of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger ConsiderationPurchase Price.
(d) No individual claim or series of related claims arising from breaches of a party's representations and warranties contained in this Agreement shall be valid and assertable unless it is (or they are) for an amount in excess of $10,000.
(e) In no event shall either party be liable for any losses or damages that are consequential, in the nature of lost profits, diminution in value, damage to reputation or the like, special or punitive or otherwise not actual losses or damages.
(f) The amount of losses or damages for which indemnification is sought shall be reduced by any recoveries which the indemnified party is entitled to under insurance policies or other payments received or receivable from third parties and any tax benefits actually received or for which the indemnified is eligible.
(g) Notwithstanding anything herein to the contrary, there shall be no maximum liability Seller's obligation to indemnify and hold harmless Buyer against all claims, damages, losses, liabilities, costs and expenses (including, without limitation, settlement costs and any legal, accounting or other expenses for investigating or defending any Company Member actions or Parent Indemnified Party who committed, participated in threatened actions) reasonably incurred by the Buyer or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to claims set forth in Section 10.2(c) and (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Membersd) shall use commercially reasonable efforts to mitigate Damages not be limited in accordance with any manner by the common law doctrine terms of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except including but not limited to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement limitations on liability set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderSection 10.4.
Appears in 1 contract
Limitations. (a) In Notwithstanding anything to the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”)contrary herein, the aggregate liability of the Parent Indemnified Parties Seller for all such claims Damages under this Article VI shall be capped at not exceed the General Representation amount of the Purchase Price (the "Cap").
(b) In Notwithstanding anything to the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a)contrary herein, (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Buyer for Damages under this Article VI shall not exceed the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3Cap.
(c) Subject Notwithstanding anything to Section 10.4(d)the contrary herein, in no event neither Party shall have any Company Member have liability pursuant indemnification obligation to an Indemnified Party arising under this Article 10 in excess VI until the amount of Damages suffered by the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in with respect to a single event exceeds $20,000 (the "Single Event Threshold") or had actual knowledge the aggregate amount of fraud, intentional misrepresentation or willful breach.
(e) No Parent Damages suffered by the Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed exceeds $287,500 100,000 (the “Deductible”"Aggregate Threshold"), in which case the Parent Indemnified Parties may recover all Damages Indemnifying Party shall be obligated to pay only the amounts in excess of the Deductible. No Company Single Event Threshold or the Aggregate Threshold, as the case may be.
(d) Except as provided in Article VII hereof, after the Closing, the rights of the Indemnified Parties under this Article VI shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in this Agreement.
(e) In no event shall any Indemnifying Party be responsible and liable to any Indemnified Party may recover for any Damages or other amounts under this Article VI that constitute punitive or consequential damages or other damages that are not compensatory in respect of Parent General Claims unless and until Damages in the aggregate under all Claims nature (other than any such damages that have been incurred, paid or properly accrued exceed the Deductible, in are payable to any third party which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount is not an Affiliate of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregardedIndemnified Party).
(f) Notwithstanding anything herein The liability of any Indemnifying Party for any Damages shall be reduced by any Tax benefit if attributable to any deduction (for Tax purposes) realized by the Indemnified Party as a result of the item that gave rise to the contraryDamages. Such Tax benefit shall be determined by assuming (i) that the applicable Tax rate was the highest marginal federal, state, local and non-U.S. Tax rate for the relevant Tax or Taxes (taking into account, where applicable, the deductibility and credit of any Tax for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from computing any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith other Tax) applicable to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Partyfor the most recent Tax period for which a Tax Return relating to such Tax was filed or, as applicableif no such Tax Return was filed, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies Tax was determined and paid (other than the Tail Policyas an estimated Tax payment) or and (ii) obtain insurance coverage that any deferred Tax benefit was attributable to depreciation or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages amortization was immediately realized in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything an amount equal to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except present value of such deferred Tax benefit using a discount rate equal to the extent such punitive damages are awarded to a third party or "prime rate" as published in the case of fraudWall Street Journal as in effect on the day that the Tax benefit was deemed to be realized, intentional misrepresentation or willful breach)compounded monthly.
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Samples: Purchase Agreement (Integrated Health Technologies Inc)
Limitations. (a) In the case of any General Representation Claim, each Company Member No claims shall be severally and not jointly liable made by any Indemnified Party for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim indemnification pursuant to Section 10.3(a) or Section 10.3(c) (6.2(a), other than a claim arising from any breach or inaccuracy of any of the Fundamental Representations and the representations and warranties of the Company set forth in connection with a Fundamental RepresentationSection 2.14, unless and until the aggregate amount of Losses for which the Indemnified Parties seek to be indemnified pursuant to Section 6.2(a) exceed $60,000 (a “Parent General Claim”the "Threshold Amount"), at which time the aggregate liability of the Parent Indemnified Parties shall be entitled to indemnification for all such Losses (including all Losses included within the Threshold Amount). Notwithstanding the preceding sentence, claims shall arising from any breach or inaccuracy of any of the Fundamental Representations and the representations and warranties of the Company set forth in Section 2.14 may be capped at made without regard to the General Representation CapThreshold Amount.
(b) In the case of No Principal Stockholder shall have any Claim under liability for money damages pursuant to Section 6.2 (i) Section 10.2(a) with respect to unless and until the aggregate Holdback Amount has been exhausted in satisfaction of any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a)Losses, (ii) subject to the last paragraph of Section 6.2, in an amount in excess of such Principal Stockholder's proportionate share of $2,500,000 (provided that this Section 6.3(b)(ii) shall not apply to liabilities arising from any breach or inaccuracy of any of clauses (b) through (j) the Fundamental Representations and the representations and warranties of the Company set forth in Section 10.2 ((i) 2.14), and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share iii) in an amount in excess of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3such Principal Stockholder under this Agreement.
(c) Subject The limitations set forth in this Section 6.3 shall not apply with respect to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceedsi) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breachbreach or misconduct, (ii) any breach of which the Company had knowledge on or prior to the Effective Time, (iii) any equitable remedy, including a preliminary or permanent injunction or specific performance, or (iv) claims relating to Taxes.
(ed) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless The representations, warranties, covenants and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess obligations of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurredCompany, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall rights and remedies that may be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received exercised by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent based on such representations, warranties, covenants and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreementobligations, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be limited or affected by any investigation conducted by ParentParent or Merger Sub or any agent of Parent or Merger Sub with respect to, or any knowledge acquired (or capable of being acquired) by Parent or Merger Sub or any agent of Parent or Merger Sub at any time (time, whether before or after the execution and delivery of this Agreement Date or the Closing Date)Closing, with respect to to, the accuracy or inaccuracy of, of or compliance with, with any such representation, warranty, covenant, agreement covenant or obligation obligation. The wavier by Parent or Merger Sub of any of the existence conditions set forth in Article V will not affect or limit the provisions of facts and circumstances that provide the basis for a Claim hereunderthis Article VI.
Appears in 1 contract
Limitations. (a) In the case of any General Representation Claim, each Company Member Sellers shall be severally and not jointly liable for such Company Member’s Pro Rata Share of obligated to indemnify any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) Party with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that arising from the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining until Damages sustained by the amount Person seeking indemnification as a result of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of by any particular dateparty hereto exceeds $30,000 with respect to all claims, any materiality, Material Adverse Effect or similar qualification limiting at which point the scope of Person seeking such representation or warranty indemnification shall be disregarded.
(f) Notwithstanding anything herein entitled to recover all Damages, including the contrary, for purposes amounts initially excluded in excess of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages$10,000; provided, however, that none of the Indemnified Parties such limitation shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection not apply with respect to any particular matter. Each of Parent and Representative (on behalf of the Excluded Liabilities (except that the Company Membersshall be responsible for the first $1,000 of any item which comes within subsection (d) of the definition of Excluded Liabilities) or Section 2.2. The cumulative maximum liability of a party under this Section 4 for Damages arising from the breach of representation or warranty shall use commercially reasonable efforts to mitigate Damages not exceed $600,000 less the amount of the Overpayment or plus the amount of the Underpayment; and no Seller shall have any liability for an aggregate amount in accordance with excess of the common law doctrine Ratio for such Seller of mitigation.
$600,000 plus the amount of the Overpayment or less the amount of the Underpayment; provided that any Obligation which comes within subsection (g) No Indemnified Party of the definition of "Excluded Liabilities" shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision the joint and several Obligation of Section 10.2 or Section 10.3.
(h) Notwithstanding anything Sellers without regard to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to Ratio for Sellers. No right of a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement Buyer for indemnification hereunder shall not be affected by any investigation conducted by Parentexamination made for or on behalf of Buyer (including any examination of the Company, Sellers or the Business) or Sellers, the knowledge of any Buyer, Sellers, the Company's officers, directors, shareholders, employees or agents, or the acceptance by Buyers or Sellers of any knowledge acquired (certificate or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderopinion.
Appears in 1 contract
Samples: Stock Purchase and Non Compete Agreement (Cable Link Inc)
Limitations. The Indemnifier’s obligations to indemnify the Claimant pursuant to Section 11.3 or 11.4 shall be subject to the following limitations:
(a) In the case of any General Representation Claim, each Company Member The Claimant shall be severally and not jointly liable entitled to indemnification only for those Damages arising with respect to any claim as to which Claimant has given the Indemnifier written notice within the appropriate time period set forth in Section 11.2 hereof for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Capclaim.
(b) In the case Claimant’s Damages sought to be recovered under Section 11.3 or 11.4 hereof shall be net of any Claim insurance proceeds actually received by Claimant with respect to the events giving rise to such Damages. If the incurrence or payment of any such Damages makes allowable to the Indemnified Party any deduction, amortization, exclusion from income or other allowance (a “Tax Benefit”) which would not, but for such adjustment, be allowable, then the indemnification payment to the Claimant under this Section 11 shall be an amount equal to (i) Section 10.2(athe amount otherwise due but for this sentence, minus (ii) the amount of Tax savings actually realized by the Claimant as a result of the Tax Benefit in the Tax year in which the Damages were incurred (a “Tax Savings”). If and to the extent that subsequent to any payment of Damages by any Indemnifier to a Claimant hereunder, such Claimant receives insurance proceeds or realizes a Tax Savings with respect to any Fundamental Representation the events giving rise to such Damages, which proceeds or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for Tax Savings would have been netted against such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable if they had been received prior to the Company Members pursuant Indemnifier’s payment of such Damages, then the Claimant shall remit such insurance proceeds or the amount of such Tax Savings to Section 2.3Indemnifier to the extent such proceeds or amount would have been netted against such Damages.
(c) Subject ACS shall not be liable for indemnification under Section 11.3(a), 11.3(e) or 11.3(g) (to the extent relating to Section 10.4(d11.3(a) or 11.3(e)) (other than with respect to claims for indemnification based upon, in no event shall any Company Member have liability pursuant arising out of, with respect to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge by reason of fraud, intentional misrepresentation or other willful breachmisconduct, any breach of any covenant, or any pre-Closing liabilities of the ACS Group that are not Assumed Liabilities (the “Basket/Cap Exclusions”)), until the aggregate amount of all indemnification payments for which ACS is liable in respect of indemnification under such Sections (other than with respect to claims for indemnification based upon the Basket/Cap Exclusions) exceeds $1,000,000 (the “Basket”), in which event ACS shall be required to pay all indemnification payments including the amount of the Basket.
(d) The aggregate amount of all indemnification payments for which ACS shall be liable pursuant to Section 11.3(a), 11.3(e) and 11.3(g) (to the extent relating to Section 11.3(a) or 11.3(e)) (other than with respect to claims for indemnification based upon, arising out of, with respect to or by reason of the Basket/Cap Exclusions) shall not exceed $50,000,000.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims The Parties agree that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under attributable to a breach of the representation contained in Section 10.2 4.5 that no Consent is required for the assignment or Section 10.3, there transfer of any Postpaid Subscriber Contract shall be deducted from any Damages an amount $350 multiplied by the number of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect Wireless lines with respect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such DamagesPostpaid Subscriber Contract; provided, however, that none the amount of the Indemnified Parties such Damages shall have any obligation to be $0 if (i) seek recovery against any insurance policies (other than such Contract was listed on the Tail Policy) Subscriber Contract Consent List and a Non-Election Notice is not delivered by GCI with respect to such Postpaid Subscriber Contract or (ii) obtain insurance coverage such Contract is not terminated by the Subscriber within six months after the Closing Date.
(f) No member of the ACS Group shall be liable for any Damages to GCI or other third party protection any of its Affiliates with respect to any particular matter. Each of Parent loss or reduction in CETC Cash Flow if ACS and Representative (on behalf of the Company Members) shall use commercially reasonable efforts its Affiliates have complied with their obligations with respect to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained CETC Cash Flow in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Alaska Communications Systems Group Inc)
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein in this Agreement to the contrary, there shall Buyer will not be no maximum liability liable to any Seller Party for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(eLosses under Section 6.3(a)(i) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess amount of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in Losses relating to all such claims exceeds the aggregate under all Claims that have been incurredThreshold, paid or properly accrued exceed the Deductible, in at which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining time Buyer shall be liable for the amount of any Damages all such Losses from the first dollar in respect of accordance with the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damagesterms hereof; provided, however, that none (x) Buyer shall not have any liability for any claim (or series of related claims) that involves Losses of less than the De Minimis Amount and (y) any claim (or series of related claims) that involves Losses of less than the De Minimis Amount shall not apply towards the satisfaction of the Indemnified Parties Threshold; provided, however, that neither the Threshold nor the De Minimis Amount shall have any obligation apply to (i) seek recovery against any insurance policies (other than the Tail Policy) or Losses resulting from breaches of the Seller Fundamental Representations.
(ii) obtain In no event will any Seller Party be entitled to recover or make a claim for any amounts in respect of consequential, incidental or indirect damages, lost profits, or diminutions in value, in each case, suffered by such Seller Party.
(iii) In determining the liability of a Party for indemnification pursuant to this Article 6, no Loss shall be deemed to have been sustained to the extent of any proceeds previously received by such Party from any insurance coverage recovery (net of all out-of-pocket costs directly related to such recovery) or other recovery from a third party (net of all out-of-pocket costs directly related to such recovery). If an amount is actually recovered from an insurance carrier or other third party protection with respect after a payment has been made by the Indemnifying Party pursuant to any particular matter. Each of Parent and Representative this Article 6, then the party receiving such amount shall promptly remit such amount to the Indemnifying Party.
(on behalf of the Company Membersiv) shall The Seller Parties will use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine any Losses upon becoming aware of mitigation.
(g) No Indemnified Party shall any event, fact or circumstance that would reasonably be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parentexpected to, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date)does, with respect give rise to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereundersuch Loss.
Appears in 1 contract
Limitations. (a) In the case Except for (i) claims based on fraud or Knowing Misrepresentation and (ii) claims based on a breach of any General Representation Claimof the Fundamental Representations, each Company Member the Escrow Agreement shall be severally and not jointly liable the exclusive means for such Company Member’s Pro Rata Share of the Buyer to collect any Damages resulting therefromfor which it is entitled to indemnification under Section 7.1(b) from any Seller. Notwithstanding the foregoing, provided that the aggregate liability of the Company Members for all General Representation Claims Buyer shall be capped at the General Representation Cap. In the case of not attempt to collect any claim pursuant to Section 10.3(a) or Section 10.3(c) Damages directly from any Seller (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”on account of Sections 7.1(a), 7.1(c) or 7.1(e)) unless there are insufficient unclaimed Escrow Funds remaining to satisfy such Damages pursuant to the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation CapEscrow Agreement.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary herein, except for claims based on fraud or a Knowing Misrepresentation, claims related to Taxes, claims arising under Sections 7.1(i)-(j) and claims arising under Article IX, the aggregate liability of each Seller for Damages under this Article VII shall not exceed the amount of the Purchase Price such Seller is entitled to receive pursuant to this Agreement.
(c) No Seller shall have any right of contribution against the Company with respect to any breach by the Company of any of its representations, warranties, covenants or agreements.
(d) Except with respect to claims based on fraud or a Knowing Misrepresentation, claims arising under Article IX, and claims for specific performance and other equitable relief, after the Closing, the rights of the Buyer under this Article VII shall be the exclusive remedy of the Buyer with respect to claims resulting from or relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company or any Seller contained in this Agreement, under no circumstances will any Indemnified .
(e) Any payments made to a Party be entitled pursuant to recover exemplary or punitive damages under this Article 10 (except VII or pursuant to the Escrow Agreement shall be treated as an adjustment to the Adjusted Purchase Price for Tax purposes to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach)permitted by Law.
(if) The rights to indemnificationFor purposes of this Article VII, compensation or reimbursement set forth in this Agreement the terms “material,” “materially”, “materiality”, “Material Adverse Effect” and other similar qualifications shall be disregarded and deemed not be affected by included in any investigation conducted by Parent, representation or any knowledge acquired (or capable warranty of being acquired) at any time (whether before or after the Agreement Date Company or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderSellers.
Appears in 1 contract
Samples: Stock Purchase Agreement (Casella Waste Systems Inc)
Limitations. (ai) In Any Claim shall be offset or reduced by the case amount of any General Representation insurance proceeds or net tax benefits , hereinafter "Tax Benefits") received by any party to such Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that Notwithstanding the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d)foregoing, in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect liability of the inaccuracy in or Seller and Stockholders to Buyer for breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenantindemnity or covenant or otherwise under, agreement or obligation arising in connection with, this Agreement (including, without limitation the indemnification set forth above and the obligations under all exhibits hereto) exceed an amount equal to (x) $1,500,000 (after deducting any insurance proceeds and Tax Benefits received therefrom), in aggregate, or (y) $1,000,000 (after deducting any insurance proceeds and Tax Benefits received therefrom), for all matters other than claims arising out of project work (excluding, in clauses (x) and (y), matters set forth in the existence last sentence of facts this paragraph). The liability, if any, of the Stockholders to the Buyer pursuant to this Section 6.4 shall be joint and circumstances several. However, nothing in this Section 6.4 shall limit, in any manner (whether by time, amount, procedure or otherwise), any remedy at law or in equity to which a party may be entitled as a result of, (x) actual fraud by the other party, including any wilful failure to disclose matters that provide should have been disclosed pursuant to Article 2 hereof; or (y) any Claim resulting or arising out of the basis Seller's Datablade project with Informix Corporation.
(iii) Except as provided in subsection (ii) above, this section 6.4 shall set forth the sole and exclusive remedy and recourse (and corresponding liability for any party) of the parties arising from a Claim hereunderClaim, cause of action, any other claim, or right of nature against a party or any or its officers, directors, employees, agents and representatives.
(iv) Buyer and Seller shall act in good faith and in a commercially reasonable manner to mitigate any Claims and damages they may suffer.
Appears in 1 contract
Samples: Asset Purchase Agreement (Butler International Inc /Md/)
Limitations. (ai) In Notwithstanding any other provision to the case contrary, the Indemnifying Party (as defined below) shall not be required to indemnify, defend or hold harmless any Indemnified Party (as defined below) (or, if the Indemnified Party is an Acquirer Indemnitee, all of such Acquirer Indemnitees taken as a whole, or, if the Indemnified Party is a Seller Indemnitee, all of such Seller Indemnitees taken as a whole) against, or reimburse any General Representation Claimsuch Indemnified Party for, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim Losses pursuant to Section 10.3(a6.2(a) or Section 10.3(c6.2(b) until the aggregate amount of the Losses of the Indemnified Party exceeds Four Hundred Fifty Thousand Dollars ($450,000) in the aggregate, after which the Indemnifying Party shall be obligated for all Losses of the Indemnified Party from the first dollar.
(ii) Notwithstanding any other provision to the contrary (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”Section 6.2(c)(iii)), the aggregate liability no Indemnifying Party shall have obligations under Section 6.2(a)(1) or Section 6.2(b)(1) in excess of thirty percent (30%) of the Parent Indemnified Parties for all such claims shall be capped at the General Representation CapPurchase Price, as adjusted pursuant to Section 1.7.
(biii) In the case Any limitations set forth in this Section 6.2(c) or otherwise shall not apply to Losses as a result of fraud or willful misrepresentation or breaches of any Claim under (i) Section 10.2(a) Specified Representation. Solely with respect to any Fundamental Representation actions grounded in fraud or any certifications made with respect thereto willful misrepresentation, (A) the right of a party to be indemnified and held harmless pursuant to Section 8.2(a), (ii) the indemnification provisions in this Agreement shall be in addition to and cumulative of any other remedy of clauses (b) through (j) of Section 10.2 ((i) such party at law or in equity and (ii)B) no such party shall, collectivelyby exercising any remedy available to it under this Article VI, “Special Matters”)be deemed to have elected such remedy exclusively or to have waived any other remedy, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefromwhether at law or in equity, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable available to the Company Members pursuant to Section 2.3it.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(div) Notwithstanding anything any other provision herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims event there exists any claim, setoff, defense or other right that an Acquirer Indemnitee may at any time have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, against Sellers in connection with such Damages; provideda claim for indemnification under this Section 6.2, howeverno right of setoff, that none claim, defense qualification or exception shall apply in favor of the Indemnified Parties shall have any obligation to (i) seek recovery Acquirer Indemnitee against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages outstanding payment obligations that may be recoverable due by Acquirer to Sellers under more than one provision of Section 10.2 the Subsequent Payments or Section 10.3Earn-Out Payment.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Take Two Interactive Software Inc)
Limitations. (a) In Buyer or HSS (“Buyers”) shall not be entitled to make a claim against Sellers for indemnity pursuant to this Article 6 except to the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided extent that the aggregate liability amount of Claims and Damages incurred by Buyers exceeds $25,000 (the “Basket”). Once the Basket is exceeded, Buyers shall be entitled to indemnification under this Article 6 for all of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim and Damages in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability excess of the Parent Indemnified Parties for all such claims shall be capped at the General Representation CapBasket.
(b) In the case The aggregate amount of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto actual Claims and Damages recoverable by Buyers pursuant to Section 8.2(a)indemnifiable claims under this Article 6, shall be limited to an amount equal to Five Hundred Thousand Dollars (ii$500,000) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, the “Special MattersCap”), each Company Member . Buyers shall not be severally and not jointly liable entitled to make a claim against Sellers for indemnity pursuant to this Article 6 to the extent such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that claim would cause the aggregate liability for amount of Buyers’ Claims and Damages indemnified by the Company Members for all Claims for Special Matters shall be capped at Sellers to exceed the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3Cap.
(c) Subject Sellers shall have no obligation for any Claims or Damages suffered by Buyers unless Sellers shall have received a Notice of Claim with respect to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess such Claims or Damages on or before the 18-month anniversary of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger ConsiderationClosing Date.
(d) Notwithstanding anything herein to If the contraryClosing occurs, there shall be no maximum liability except for any Company Member or Parent Indemnified Party who committedremedies based upon fraud and except for equitable remedies, participated the remedies and limitations provided in or had actual knowledge this Article 6 of fraudthis Agreement constitute the sole and exclusive remedies for recovery based upon the inaccuracy, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurreduntruth, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in incompleteness or breach of any representation or warranty as of any particular dateparty contained herein or in any certificate, Schedule or Exhibit furnished by any materialityparty in connection herewith, Material Adverse Effect or similar qualification limiting based upon the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount failure of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect party to perform any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or undertaking required by the existence of facts and circumstances that provide the basis for a Claim hereunderterms hereof to be performed by such party.
Appears in 1 contract
Samples: Stock Purchase Agreement (Health Systems Solutions Inc)
Limitations. (a) In The rights of the Consonus Indemnified Parties, STI Indemnified Parties and Company Indemnified Parties (each an “Indemnified Party” and collectively, the “Indemnified Parties”) provided for in Section 7.2(a), Section 7.2(b) and Section 7.2(c) shall not apply unless and until the aggregate Consonus Related Losses or STI Related Losses, as the case may be, finally determined to be due to one or more the Indemnified Parties hereunder exceeds a cumulative aggregate of any General Representation Claim$200,000 (the “Basket Amount”), in which event the Indemnified Parties shall, subject to the other limitations herein, be indemnified for all Consonus Related Losses or STI Related Losses, as the case may be, including the Basket Amount. The Basket Amount is a separate amount for each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation CapConsonus Related Losses and STI Related Losses. In no event shall the case Basket Amount apply to any of any claim pursuant the Indemnified Parties rights to indemnification under Section 10.3(a7.2(a), Section 7.2(b) or Section 10.3(c7.2(c) for: (other than i) Consonus Dissenting Share Payments or STI Dissenting Payments, or (ii) for a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability breach of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Caprepresentations and warranties set forth in Section 2.1, Section 2.2, Section 2.4, Section 3.1, Section 3.2 and Section 3.4.
(b) In The amount of any Consonus Losses or STI Losses, as the case may be, shall be net of any Claim under actual recovery (iwhether by way of payment, discount, credit, off-set, counterclaim or otherwise) Section 10.2(areceived from a third party (including any insurer) less any reasonable cost associated with receiving such recovery in respect of a claim made by the applicable Indemnified Party (a “Claim”) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3thereto. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to To the extent paid that insurance or payable and net of any costs, Taxes and expenses other form of recovery or collection thereof) actually received by any Company reimbursement from a third party is available to the Indemnified Party or Parent Indemnified Partyto cover any item for which a Claim has been made hereunder, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than party suffering the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) Loss shall use its commercially reasonable efforts to mitigate Damages in accordance with effect recovery under applicable insurance policies and warranties and otherwise pursue to conclusion available remedies or causes of action to recover the common law doctrine amount of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages its Claim as may be recoverable under more than one provision of Section 10.2 or Section 10.3available from such other party.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein contained in this Agreement to the contrary, there neither party shall be no maximum liability liable for any Company Member or Parent amounts for which an Indemnified Party who committed, participated (as defined below) is otherwise entitled to indemnification in connection with the breach or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as or any breach of any particular datecovenant contained herein until the aggregate amount for which such Indemnified Party is entitled to indemnification with respect to all such Claims for indemnification in the aggregate exceeds One Million Dollars ($1,000,000) (the "Threshold"), at which time such party shall be liable for any materialitysuch excess. In determining the foregoing Threshold and in otherwise determining the amount to which the Indemnified Party is entitled to assert a claim for indemnification pursuant to this Article IX, Material Adverse Effect only actual losses shall be considered. The Threshold shall not apply (i) with respect to Buyer's claims hereunder, as to any Claims related to (A) the Excluded Assets, (B) the Retained Liabilities or similar qualification limiting the scope (C) any breach or inaccuracy of such any representation or warranty relating to Sections 2.07 (Inventory) and 2.12 (Accounts Receivable) and (ii) with respect to Seller's claims hereunder, as to any Claims related to the payment of all amounts due to Seller pursuant to Sections 1.05 (Payment of Purchase Price) and 1.05 (Post-Closing Adjustment). The Threshold shall not apply as to any Claims arising from fraud committed by the Indemnifying Party against the Indemnified Party with respect to the transactions contemplated under this Agreement. The parties hereto waive as against each other any claim to consequential, special, exemplary or punitive damages except to the extent consequential, special, exemplary or punitive damages are awarded to a third person against an Indemnified Party in circumstances in which such Indemnified Party is entitled to indemnification hereunder such consequential, special, exemplary or punitive damages so awarded shall be disregardedpayable to such Indemnified Party hereunder.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(hb) Notwithstanding anything to the contrary contained in this AgreementArticle IX, the amount for which Buyer shall be entitled to, and Seller liable for, indemnification hereunder shall not exceed the following: (i) the aggregate amount recoverable from Seller for indemnification claims arising from the representations and warranties of Seller with respect to Sections 2.07 (Inventory) and 2.12 (Accounts Receivable) shall not exceed the excess of $25,000,000 over the Downward Adjustment Amount and (ii) the aggregate amount recoverable from Seller for indemnification claims arising from the breach of any covenant by Seller or the representations and warranties of Seller with respect to Sections 2.03 (Assumed Contracts), 2.04 (Intellectual Property), 2.05 (Title) and 2.13 (Software) shall not exceed $5,000,000. Indemnification claims arising from the representations and warranties of Seller with respect to Sections 2.07 (Inventory) and 2.12 (Accounts Receivable) shall be satisfied first from the Accounts Receivable/Inventory Holdback Amount and, to the extent the Accounts Receivable/Inventory Holdback Amount is insufficient to cover any such claims (subject to the maximum allowable amounts set forth in the preceding sentence), Seller agrees to satisfy any such claims. Indemnification claims arising from the representations and warranties of Seller with respect to Sections 2.03 (Assumed Contracts) and 2.04 (Intellectual Property), 2.05 (Title) and 2.13 (Software) shall be satisfied solely from the Escrow Amount. Seller and Buyer agree that under no circumstances will shall the Escrow Agent release any Indemnified Party be entitled of the Escrow Amount to recover exemplary or punitive damages under this Article 10 Buyer to satisfy any amounts owed to Buyer in respect of any indemnification claims arising from the representations and warranties of Seller with respect to Sections 2.07 (except Inventory) and 2.12 (Accounts Receivable). Notwithstanding the foregoing, if Seller has not paid any amounts due to the extent such punitive damages are awarded Buyer on account of an undisputed Downward Adjustment Amount pursuant to a third party or Section 1.05 hereof, Seller agrees to use any funds remaining in the case Escrow Amount immediately prior to its release to Seller, towards the satisfaction of fraud, intentional misrepresentation or willful breach)each unpaid Downward Adjustment.
(c) (Accounts Receivable) shall terminate on the later of (i) ninety (90) days following the Closing or (ii) fifteen (15) days following the resolution of any dispute relating to the Audit. The rights obligation of Seller to indemnificationindemnify Buyer in connection with the representations and warranties of Seller contained in Sections 2.03 (Assumed Contracts), compensation or reimbursement set forth in this Agreement 2.04 (Intellectual Property), 2.05 (Title) and 2.13 (Software) shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or terminate 6 months after the Agreement Date or the Closing Date). Notwithstanding the foregoing, the respective indemnification obligations of the parties hereunder shall not expire with respect to any Claim brought within such specified time periods until the indemnification obligation, if any, with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts such Claim shall have been finally determined and circumstances that provide the basis for a Claim hereunderpaid.
Appears in 1 contract
Limitations. (a) In No Indemnified Party shall make any Claim for indemnification against an Indemnifying Party unless and until the aggregate amount of such indemnifiable Losses of such Indemnified Party exceeds Twenty-five Thousand Dollars ($25,000.00) (the “Minimum Claim Amount”), whereupon the Indemnified Party shall be entitled to indemnification for the amount of such Claim, or portion thereof; provided, however, that such Minimum Claim Amount shall not apply in the case of any General Representation ClaimClaim for Losses attributable to a Fundamental Representation. Except as otherwise provided herein, each Company Member no Indemnified Party may recover, in the aggregate, an amount greater than Five Million Five Hundred Thousand Dollars ($5,500,000.00) (the “Cap”) from the other pursuant to Section 18.1 or Section 18.2; provided, however, that such Cap shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In apply in the case of any claim for Losses attributable to breaches of any of the Fundamental Representations. The limitations set forth in this Section 18.6(a) shall not apply to any claims for indemnification (A) made pursuant to Section 10.3(aSections 18.1(a), (b) or (c) or Section 10.3(c18.2(a) or made (other than B) for Losses resulting from fraud (as ultimately determined by a claim in connection with a Fundamental Representation) (a “Parent General Claim”court of competent jurisdiction), the aggregate intentional misrepresentation or willful misconduct provided, further, that in no event shall any Party have any liability hereunder in excess of the Parent Indemnified Parties for all such claims shall be capped at the General Representation CapPurchase Price.
(b) In the case No claim for indemnification may be made or pursued (and each party, as applicable, expressly waives any right to indemnification) for any indirect damage, consequential or special loss or damage, diminution in value, economic loss, loss of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation profits or any certifications made with respect thereto pursuant to Section 8.2(a)punitive damages, (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable except to the Company Members pursuant extent actually awarded to Section 2.3a third party or agreed to by the Parties.
(c) Subject The Indemnified Party shall take all reasonable steps to Section 10.4(d), in no mitigate all indemnifiable Losses upon and after becoming aware of any event shall which could reasonably be expected to give rise to any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger ConsiderationLosses hereunder.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty Loss for which indemnification is provided under this Section 18 shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than amounts actually recovered by the Tail Policy) Indemnified Party pursuant to any indemnification by, or (ii) obtain insurance coverage or other indemnification agreement with, any third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy matter to which the Loss relates, less any costs or inaccuracy ofexpenses incurred in connection therewith, and (ii) any insurance proceeds or compliance withother cash receipts or sources of reimbursement actually recovered by the Indemnified Party with respect to the matter to which the Loss relates, less any costs, expenses or premiums incurred in connection therewith (and no right of subrogation shall accrue to any insurer or third party indemnitor hereunder) (each such items identified in clauses (i) and (ii), a “Collateral Source”). If the amount to be netted hereunder from any payment required under this Section 18 is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party pursuant to this Section 18, the Indemnified Party shall repay to the Indemnifying Party, promptly after such determination, any representationamount that the Indemnifying Party would not have had to pay pursuant to this Section 18.6(d) had such determination been made at the time of such payment. To the extent an Indemnified Party may have a right to receive proceeds from a Collateral Source and such Indemnified Party does not pursue such right, warrantyany Indemnifying Party may, covenantin its sole discretion, agreement or obligation or require such Indemnified Party to grant an assignment of the existence right of facts and circumstances that provide such Indemnified Party to assert a claim against any such Collateral Source. In the basis for a Claim hereunderevent of such assignment, the Indemnifying Party may pursue such claim at its own expense subject to the Indemnified Party’s right to participate in such effort.
Appears in 1 contract
Samples: Asset Purchase Agreement (Griffin-American Healthcare REIT IV, Inc.)
Limitations. (a) In the case of any General Representation ClaimNOTWITHSTANDING ANYTHING CONTAINED TO THE CONTRARY IN ANY OTHER PROVISION OF THIS AGREEMENT, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefromSELLER, provided that the aggregate liability BUYER, AND PARENT AGREE THAT THE RECOVERY BY ANY PARTY HERETO OF ANY DAMAGES SUFFERED OR INCURRED BY IT AS A RESULT OF ANY BREACH BY ANOTHER PARTY OF ANY OF ITS REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE ACTUAL DAMAGES SUFFERED OR INCURRED BY THE NON-BREACHING PARTY AS A RESULT OF THE BREACH BY THE BREACHING PARTY OF ITS REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS HEREUNDER AND IN NO EVENT SHALL THE BREACHING PARTY BE LIABLE TO THE NON-BREACHING PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES SUFFERED OR INCURRED BY THE NON-BREACHING PARTY AS A RESULT OF THE BREACH BY THE BREACHING PARTY OF ANY OF ITS REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS HEREUNDER. For purposes of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”)foregoing, the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provideddamages may, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreementinclude indirect, under no circumstances will any Indemnified Party be entitled to recover consequential, special, exemplary or punitive damages under this Article 10 (except to the extent (a) the injuries or losses resulting in or giving rise to such punitive damages are awarded incurred or suffered by a person or entity that is not a Seller Indemnified Party, a Buyer Indemnified Party or an affiliate of any of the foregoing, and (b) such damages are recovered against an indemnified Party hereunder by a person or entity that is not a Seller Indemnified Party, a Buyer Indemnified Party or an affiliate of any of the foregoing. This section 12.3 shall operate only to limit a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement Party's liability and shall not be affected by operate to increase or expand any investigation conducted by Parent, contractual obligation of a Party hereunder or cause any knowledge acquired (or capable contractual obligation of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect a Party hereunder to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereundersurvive longer than as otherwise provided.
Appears in 1 contract
Limitations. Notwithstanding anything to the contrary in this Article VIII or elsewhere in this Agreement:
(a) In the case of any General Representation Claim, each Company Member The Sellers shall not be severally and not jointly liable for such Company Member’s Pro Rata Share of required to pay any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of to any claim Acquiror Indemnitees pursuant to Section 10.3(a8.2(a) or Section 10.3(cprior to the time that the principal amounts have been repaid by the Acquiror under the NewCo Loan Agreement and the SMLP Holdings Loan Agreement, and thereafter any such payments shall not exceed the lesser of (i) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of principal amount repaid by the Parent Indemnified Parties for all such claims shall be capped at Acquiror under the General Representation CapNewCo Loan Agreement and the SMLP Holdings Loan Agreement and (ii) the Purchase Price.
(b) In the case Each Indemnified Party shall take, and cause its Affiliates to take, commercially reasonable steps to mitigate any Damages for which it would otherwise be entitled to indemnification pursuant to this Article VIII upon becoming aware of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation event or any certifications made with respect thereto pursuant to Section 8.2(a)circumstance that would be reasonably expected to, (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii)or does, collectivelygive rise thereto, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable including incurring costs only to the Company Members pursuant minimum extent necessary to Section 2.3remedy the breach that gives rise to such Damages.
(c) Subject If, prior to Section 10.4(dthe Closing, with respect to any Party (the “Waiving Party”), (i) its Designated Officer has actual knowledge of any breach (and not a mere awareness of a set of circumstances which later manifests itself as a breach) by any other Party of any representation, warranty, covenant or agreement contained in no event this Agreement or (ii) its Designated Officer has, as a result of a failure during the Interim Period to exercise reasonably prudent diligence and care in accordance with past practices, directly caused any breach by any other Party of any representation, warranty, covenant or agreement contained in this Agreement (provided that any action taken by a Designated Officer of a Summit Entity on the instruction of the board of directors or board of managers of a Summit Entity shall any Company Member not be deemed to have liability caused a breach for the purposes of this sub-paragraph (ii)), and, in either case, the Waiving Party proceeds with the Closing, then the Waiving Party shall be deemed to have waived such breach and the Waiving Party and the other Acquiror Indemnitees or the Seller Indemnitees, as applicable, shall not be entitled to indemnification pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) VIII or to xxx for damages under this Agreement relating to such Company Member breach, notwithstanding anything to the contrary contained herein or in any certificate delivered pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Considerationhereto.
(d) Notwithstanding anything herein to the contraryNOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committedNEITHER THE ACQUIROR NOR THE SELLERS NOR THEIR RESPECTIVE AFFILIATES SHALL BE LIABLE HEREUNDER TO ANY INDEMNIFIED PARTY FOR ANY LOST PROFITS OR PUNITIVE, participated in or had actual knowledge of fraudCONSEQUENTIAL, intentional misrepresentation or willful breachREMOTE, SPECULATIVE, SPECIAL OR INDIRECT DAMAGES, EXCEPT TO THE EXTENT SUCH LOST PROFITS OR DAMAGES ARE INCLUDED IN ANY ACTION BY A THIRD PARTY AGAINST SUCH INDEMNIFIED PARTY FOR WHICH IT IS ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there as to matters which are subject to indemnification pursuant to this Section 11.2.1(b), (a) Seller and Shareholder shall not be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims liable unless and until Damages in the aggregate Losses to the Indemnified Purchaser Parties resulting from such otherwise indemnifiable matters under all Claims that have been incurred, paid or properly accrued Section 11.2.1(b)(and (x) any Assumed Warranty Obligations described in Section 10.1 and (y) any Customer other Business Relationships described in Section 10.7) shall exceed a cumulative aggregate of $287,500 75,000 (the “DeductibleIndemnification Threshold”)(with Seller and Shareholder being responsible for all Losses that exceed the Indemnification Threshold), and (b) the aggregate amount of any payments that shall be payable by Seller and Shareholder as a result of any Claims for indemnification made under Section 11.2.1(b) with respect to a misrepresentation or breach of warranty shall be limited to $6 million (the “General Maximum Limitation”); provided, in which case however, that neither the Parent Indemnified Parties may recover all Damages in excess of Indemnification Threshold nor the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Maximum Limitation shall apply to (i) Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether for Losses relating to a breach of the representations and warranties of Seller set forth in Sections 3.1 through 3.5, 3.10, 3.12, 3.17 (first sentence), 3.21, 3.24, 3.26, 3.27 and 3.37, (ii) Claims for Losses relating to the Retained Liabilities, (iii) Claims relating to any unpaid Taxes owed by Seller and/or Shareholder, including any sales Tax associated with the transactions contemplated hereby and/or required to be paid by, or on behalf of Seller in connection with the operations of its Business, or otherwise, or (iv) Claims for Losses relating to a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as that was actually known to be false when made or for fraud. For purposes of any particular datedetermining whether the Indemnification Threshold has been met and in the calculation of losses, any all “materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty ” qualifiers in this Agreement shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Limitations. (a) In Notwithstanding anything to the case of any General Representation Claimcontrary herein, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that (i) the aggregate liability of the Company Members Indemnifying Equityholders for all General Representation Claims Damages under Section 6.1(a) shall not exceed $5,500,000 (the “Indemnification Cap”), (ii) the Indemnifying Equityholders shall be capped at liable only for that portion of the General Representation Cap. In aggregate Damages under this Article VI for which they would otherwise be liable which exceeds $500,000 (the case “Indemnification Deductible”) and (iii) each Indemnifying Equityholder shall only be liable for his, her or its Pro Rata Share of any the Damages for which the Indemnifying Equityholders are liable under this Article VI; provided that the Indemnification Cap and Indemnification Deductible shall not apply to a claim pursuant to Section 10.3(a6.1(a) relating to a breach of the representations and warranties set forth in Sections 2.1, 2.2 or Section 10.3(c) 2.3. For purposes solely of this Article VI, all representations and warranties of the Company in Article II (other than a Sections 2.6, 2.7, 2.10 and 2.26) shall be construed as if the term “material” and any reference to “Company Material Adverse Effect” (and variations thereof) were omitted from such representations and warranties. In addition, Zipcar shall not be entitled to make any claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability respect of the Parent Indemnified Parties any Individual Matter unless such claim is for all such claims shall be capped Damages in an amount of at the General Representation Capleast $5,000.
(b) In Notwithstanding anything to the case of any Claim under contrary herein, (i) the aggregate liability of Zipcar for Damages under Section 10.2(a6.2(a) with respect shall not exceed the Indemnification Cap and (ii) Zipcar shall be liable for only that portion of the aggregate Damages under this Article VI for which it would otherwise be liable which exceeds the Indemnification Deductible; provided that the Indemnification Cap and Indemnification Deductible shall not apply to any Fundamental Representation or any certifications made with respect thereto a claim pursuant to Section 8.2(a)6.2(a) relating to a breach of the representations and warranties set forth in Sections 3.1, 3.2 or 3.3. For purposes solely of this Article VI, all representations and warranties of Zipcar and the Transitory Subsidiary in Article III (iiother than Sections 3.6, 3.7, 3.10 and 3.25) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally construed as if the term “material” and any reference to “Buyer Material Adverse Effect” (and variations thereof) were omitted from such representations and warranties. In addition, the Indemnifying Equityholders shall not jointly liable for such Company Member’s Pro Rata Share be entitled to make any claim in respect of any Individual Matter unless such claim is for Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped in an amount of at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3least $5,000.
(c) Subject Except with respect to claims based on fraud arising in connection with the negotiation of the transactions contemplated hereby, after the Closing, the rights of the Indemnified Parties under this Article VI shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in this Agreement or the matters set forth in Sections 6.1(c), 6.1(d) and 6.2(c) or otherwise arising in connection with the transactions contemplated hereby; provided, however, that nothing in this Section 6.5(c) shall limit the rights and obligations of Zipcar, its equityholders or the Indemnifying Equityholders pursuant to the Investor Documents or otherwise limit the rights and obligations of any equityholder of Zipcar, including the Indemnifying Equityholders, in such capacity.
(d) The redemption of shares of Zipcar Preferred Stock from and/or issuance of shares of Zipcar Preferred Stock to Indemnifying Equityholders pursuant to Section 10.4(d)6.3 of this Agreement shall be the sole and exclusive means for satisfying claims for indemnification pursuant to this Agreement, whether pursuant to Section 6.1 or Section 6.2, including that in no event shall any Company Member have liability of Zipcar, its Equityholders, the Surviving Corporation or any Indemnifying Equityholder be obligated to make any cash payment to any Indemnified Party with respect to any claim for indemnification pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breachAgreement.
(e) No Parent Indemnifying Equityholder shall have any right of contribution against the Company or the Surviving Corporation with respect to any breach by the Company of any of its representations, warranties, covenants or agreements. The amount of Damages recoverable by an Indemnified Party may recover under this Article VI with respect to an indemnity claim shall be reduced by (i) any proceeds received by such Indemnified Party or an Affiliate, with respect to the Damages in respect to which such indemnity claim relates, from an insurance carrier or other third party (including recourse received following any redemption of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”Merger Shares pursuant to Section 6.3(i), in which case such shares shall be reissued in such number as equals each Indemnifying Equityholders’ pro rata share of such recovery divided by the Parent Indemnified Parties may recover all Damages in excess of Zipcar Preferred Stock Price except to the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages extent that such potential recovery was taken into account in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess initial determination of the deductible. In determining whether a breach of a representation or warranty has occurred, Damages) and in determining (ii) the amount of any tax savings actually realized by such Indemnified Party or an Affiliate, for the tax year in which such Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular dateare incurred, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein which are clearly attributable to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements to which such indemnity claim relates (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses increased tax liability which may result from the receipt of recovery the indemnity payment or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with insurance proceeds relating to such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Samples: Merger Agreement (Zipcar Inc)
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled the following limitations shall apply to recover exemplary or punitive damages indemnification claims under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).Agreement:
(i) The rights no individual claim (or series of related claims) for indemnification under Sections 7.1(a) or 7.2(a) (other than with respect to indemnificationthe representations and warranties contained in Sections 2.7, compensation 2.8, 2.21, or reimbursement set forth 3.6) shall be valid and assertable unless it is (or they are) for an amount in this Agreement excess of $75,000;
(ii) the aggregate liability of the Seller Indemnifying Parties with respect to the indemnification of any claims pursuant to Sections 7.1(a) (other than with respect to the representations and warranties contained in Sections 2.7, 2.8, or 2.21) shall not exceed an amount equal to $1,200,000 (exclusive of reasonable costs and expenses, including attorney fees); and
(iii) the aggregate liability of the Buyer with respect to the indemnification of any claims pursuant to Section 7.2(a) (other than with respect to the representations and warranties contained in Section 3.6) shall not exceed an amount equal to $1,200,000 (exclusive of reasonable costs and expenses, including attorney fees); and
(iv) the amount of any Damages for which a Party is entitled to indemnification as provided under this Article VII shall be affected calculated net of any accruals, reserves or provisions therefor reflected in the Most Recent Balance Sheet.
(b) In no event shall any Indemnifying Party be responsible or liable for any Damages or other amounts under this Article VII that are consequential, in the nature of lost profits, diminution in the value of property, special or punitive or otherwise not actual damages, other than such Damages or other amounts that are components of judgment awards against an Indemnified Party in actions by third parties to the extent that any investigation conducted such judgment award is subject to indemnification pursuant to this Article VII. Each Party shall (and shall cause its Affiliates to) use reasonable commercial efforts to pursue all legal rights and remedies available in order to minimize the Damages for which indemnification is provided to it under this Article VII.
(c) The amount of Damages recoverable by Parent, or an Indemnified Party under this Article VII with respect to an indemnity claim shall be reduced by the amount of any knowledge acquired payment received by such Indemnified Party (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Datean Affiliate thereof), with respect to the accuracy Damages to which such indemnity claim relates, from an insurance carrier. An Indemnified Party shall use reasonable commercial efforts to pursue, and to cause its Affiliates to pursue, all insurance claims to which it may be entitled in connection with any Damages it incurs, and the Parties shall cooperate with each other in pursuing insurance claims with respect to any Damages or inaccuracy ofany indemnification obligations with respect to Damages. If an Indemnified Party (or an Affiliate) receives any insurance payment in connection with any claim for Damages for which it has already received an indemnification payment from the Indemnifying Party, it shall pay to the Indemnifying Party, within 30 days of receiving such insurance payment, an amount equal to the excess of (A) the amount previously received by the Indemnified Party under this Article VII with respect to such claim plus the amount of the insurance payments received, over (B) the amount of Damages with respect to such claim which the Indemnified Party has become entitled to receive under this Article VII.
(d) All representations, warranties, covenants and agreements made by any Seller in this Agreement or in any other Transaction Document and Buyer's right to indemnification, reimbursement or recovery pursuant to this Agreement based thereon shall not be affected or deemed waived by (i) any investigation made by or on behalf of the Buyer (whether before, on or after the date hereof or before, on or after the Closing Date), (ii) knowledge capable of being obtained as a result of such investigation or otherwise, or compliance with(iii) the Buyer's participation in the preparation of the schedules pursuant to this Agreement.
(e) Except with respect to claims for equitable relief, including specific performance, or fraud perpetuated with respect to breaches of any representation, warranty, covenant, representation or agreement or obligation contained in this Agreement or the existence Ancillary Agreements, the rights of facts the Indemnified Parties under this Article VII shall be the sole and circumstances exclusive remedies of the Indemnified Parties and their respective Affiliates with respect to claims covered by Section 7.1, Section 7.2 or otherwise relating to the transactions that provide are the basis for a Claim hereundersubject of this Agreement. Without limiting the generality of the foregoing, in no event shall any Party, its successors or permitted assigns be entitled to claim or seek rescission of the transactions consummated by this Agreement.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Par Technology Corp)
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate The liability of the Company Members for all General Representation Claims Indemnifying Party to indemnify the Indemnified Party pursuant to Sections 6.2(a) and (b) and Sections 6.3(a) and (b) shall be capped at limited to Indemnification Claims as to which an Indemnified Party has given the General Representation Cap. In Indemnifying Party written notice in accordance with Sections 6.5(a) and (b) within the case of any claim period following the Closing Date specified for each respective matter pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages6.1; provided, however, that none of the Indemnified Parties shall have any obligation to (iprovisions for indemnification contained in Section 6.2(a) seek recovery against any insurance policies and Section 6.3(a) (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each the Fundamental Representations) with respect to breaches of Parent representations and Representative (on behalf of warranties shall be effective only if the Company Members) shall use commercially reasonable efforts Indemnified Party has suffered, incurred, sustained or become subject to mitigate Damages in accordance with excess of One Hundred Thousand Dollars ($100,000) in the common law doctrine of mitigation.
(g) No aggregate in which case the Indemnified Party shall be entitled to double recovery indemnification for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3from the first dollar.
(hb) Notwithstanding anything The liability of the Indemnifying Party to indemnify the contrary contained in this Agreement, under no circumstances will any Indemnified Party shall in no event exceed value of the Closing Shares as of the Closing Date; provided, however that there shall be entitled no such limitation with respect of any claim for or arising directly or indirectly out of or relating to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, willful misconduct or intentional misrepresentation or willful breach)misrepresentation.
(ic) The rights No Indemnified Party shall have any obligation to indemnification, compensation expend any out-of-pocket expense to seek recovery under any insurance benefits and proceeds or reimbursement set forth in this Agreement shall not be affected by from any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderother Person.
Appears in 1 contract
Samples: Stock Purchase Agreement (Bridgeway National Corp.)
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, the following limitations shall apply to indemnification claims under this Agreement (with the exception of claims based upon fraud): ****************************************************.
(b) In no circumstances will event shall any Indemnified Indemnifying Party be entitled to recover exemplary responsible or punitive damages liable for any Damages or other amounts under this Article 10 V that are consequential, in the nature of lost profits, diminution in the value of property, special or punitive or otherwise not actual damages (except to the extent such punitive damages same are awarded owing pursuant to a third party or Third Party Claim). Each Party shall (and shall cause its Affiliates to) use reasonable commercial efforts to pursue all legal rights and remedies available in order to minimize the case Damages for which indemnification is provided to it under this Article V.
(c) The amount of fraud, intentional misrepresentation or willful breach).
Damages recoverable by an Indemnified Party under this Article V with respect to an indemnity claim shall be reduced by (i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected the amount of any payment received by any investigation conducted by Parent, or any knowledge acquired such Indemnified Party (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Datean Affiliate thereof), with respect to the accuracy Damages to which such indemnity claim relates, from an insurance carrier, and (ii) the amount of any Tax benefit realized by such Indemnified Party (or inaccuracy an Affiliate thereof) which is attributable to the Damages to which such indemnity claim relates. An Indemnified Party shall use reasonable commercial efforts to pursue, and to cause its Affiliates to pursue, all Tax benefits to which it may be entitled in connection with any Damages it incurs, and the Parties shall cooperate with each other in pursuing insurance claims with respect to any Damages or any indemnification obligations with respect to Damages. If an Indemnified Party (or an Affiliate) receives any insurance payment in connection with any claim for Damages for which it has already received an indemnification payment from the Indemnifying Party, it shall pay to the Indemnifying Party, within 30 days of receiving such insurance payment, an amount equal to the excess of (A) the amount previously received by the Indemnified Party under this Article V with respect to such claim plus the amount of the insurance payments received, over (B) the amount of Damages with respect to such claim which the Indemnified Party was or has become entitled to receive under this Article V.
(d) Except with respect to claims for fraud, or claims for equitable relief (including specific performance) made with respect to breaches of any covenant or agreement contained in this Agreement or the Ancillary Agreements, the rights of the Indemnified Parties under this Article V shall be the sole and exclusive remedies of the Indemnified Parties and their respective Affiliates with respect to claims covered by Section 5.1 or Section 5.2 or otherwise arising out of, resulting from or compliance withrelating to this Agreement (including any exhibits or schedules hereto), any representationAncillary Agreement (including any exhibits or schedules thereto) or any certificates or other instruments delivered in connection with this Agreement or any Ancillary Agreement, warrantyor any of the transactions contemplated hereby or thereby. Without limiting the generality of the foregoing, covenantexcept with respect to claims based on fraud, agreement in no event shall any Party, its successors or obligation permitted assigns be entitled to claim or the existence seek rescission of facts and circumstances that provide the basis for a Claim hereundersuch transactions.
Appears in 1 contract
Samples: Asset Purchase Agreement (Praecis Pharmaceuticals Inc)
Limitations. (a) In Reliant shall not be liable for any Loss described in Section 8.1(a) unless and until the case aggregate of all such Losses for which Reliant is liable is in excess of [*] Dollars ($[*]), in which event, Reliant shall be liable for all Losses in excess of such amount. Notwithstanding the foregoing, subsequent to the Closing Date in no event shall the liability of Reliant under Section 8.1(a) exceed [*] Dollars ($[*]) in the aggregate; provided that such limitation shall not apply to any breach of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case representations or warranties of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim Reliant set forth in connection with a Fundamental Representation) (a “Parent General Claim”Sections 5.1, 5.2, 5.4(a), the aggregate liability and 5.8 of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Capthis Agreement.
(b) In For the case avoidance of doubt and without limitation to the provisions of Articles V and VI, neither Indemnifying Party shall have any Claim obligation to indemnify, defend and hold harmless the Indemnified Party from and against any portion of Losses under (i) Section 10.2(a) with respect 8.1 or Section 8.2 to the extent that such portion of such Losses results directly from any Fundamental Representation action taken by, omission of, or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3express written request of, such Indemnified Party.
(c) Subject No Party hereto shall be entitled to Section 10.4(d), in no event shall recover for any Company Member have liability Losses or other amounts due from the other Party pursuant to this Article 10 in excess of the Merger Consideration payable Agreement or any Other Agreement by retaining or setting off amounts (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld whether or not such amounts are liquidated or reduced to judgment) against any amounts due or to become due from such Indemnifying Party’s proceeds) first Party to such Company Member second Party hereunder or under any Other Agreement or under any document or instrument delivered pursuant hereto or thereto or in connection herewith or therewith. For the avoidance of doubt, the foregoing is without prejudice to Section 2.3. Subject to Section 10.4(d)any right of set-off expressly provided for in any Other Agreement, in no event shall any Parent Indemnifying Party have liability pursuant to which does not involve setting off amounts due under this Article 10 in excess of the Merger ConsiderationAgreement.
(d) Notwithstanding anything herein All amounts paid by Reliant or Oscient under this Article VIII shall be treated for all purposes as adjustments to the contraryPurchase Price. In the event that treatment as an adjustment to the Purchase Price is disputed by any taxing authority, there the Party receiving notice of such dispute shall be no maximum liability for any Company Member or Parent Indemnified promptly notify and consult with the other Party who committed, participated in or had actual knowledge concerning resolution of fraud, intentional misrepresentation or willful breachsuch dispute.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, in no event shall the liability of Reliant under no circumstances will Section 8.1(b) for non-compliance or any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to breach of the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement covenant and agreement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired Section 7.17 exceed [*] Dollars (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date$[*]), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Oscient Pharmaceuticals Corp)
Limitations. (a) In the case of any General Representation Claim, each Company Member Any indemnity payment hereunder shall be severally and not jointly liable treated for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability Tax purposes as an adjustment of the Company Members for all General Representation Claims shall be capped at Purchase Price to the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) extent such characterization is proper or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”)permissible under relevant Tax law, the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Capincluding court decisions, statutes, regulations and administrative promulgations.
(b) In All Liabilities and Expenses recoverable by an Indemnified Party under Section 9.1 or 9.2 shall be net of recoveries, contributions, indemnification or other similar payments from third Persons actually received by such Indemnified Party, less the case reasonable costs of recovering amounts (including but not limited to any Claim under (iinsurance proceeds) Section 10.2(a) from such third Persons. Any such amounts received by an Indemnified Party with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member indemnity claim after it has received an indemnity payment hereunder shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, promptly paid over to the Indemnitor; provided that the aggregate liability for Indemnified Party shall not be obligated to pay over any such amount in excess of the Company Members for all Claims for Special Matters shall be capped at amount paid by the Merger Consideration paid or payable Indemnitor to the Company Members pursuant Indemnified Party with respect to Section 2.3such claim. The Indemnified Party shall use its commercially reasonable efforts to receive such indemnification payments from third Persons.
(c) Subject Except for remedies that cannot be waived as a matter of Law and injunctive relief and except with respect to fraud, if the Closing occurs, this Section 10.4(d), 9 shall be the exclusive remedy for breaches of this Agreement or otherwise in no event shall any Company Member have liability pursuant to this Article 10 in excess respect of the Merger Consideration payable (inclusive sale of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger ConsiderationAssets contemplated hereby.
(d) If any Seller breaches any covenant in Section 6.6 (Confidentiality), Sellers acknowledge such violation or breach may cause irreparable injury to Buyer, the amount of which may be impossible to estimate or determine and which may not be adequately compensated by monetary damages. Accordingly, Buyer shall be entitled to specific performance, temporary and permanent injunctive relief or such other equitable remedies as may be available from any court of competent jurisdiction without the necessity of posting a bond.
(e) Notwithstanding anything contained herein to the contrary, there no Indemnitor shall be no maximum liability for liable pursuant to this Section 9 to any Company Member or Parent Indemnified Party who committedfor special, participated in punitive, consequential or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damagesincidental damages; provided, however, that none the foregoing shall not preclude recovery by an Indemnified Party pursuant to this Section 9 of the any special, punitive, consequential or incidental damages actually paid by an Indemnified Parties shall have Party as a result of any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigationclaim.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Aleris International, Inc.)
Limitations. Notwithstanding anything to the contrary in this Agreement:
(a) In Seller’s aggregate obligation to indemnify the case of any General Representation ClaimBuyer Indemnified Parties, and Xxxxx’s liability to the Seller Indemnified Parties, in each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefromcase, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”)this Agreement, the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Capnot exceed $32,500,000.
(b) In the case of Under no circumstances shall any Claim Party be entitled to duplicate recovery under this Agreement with respect to (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto indemnification claim pursuant to Section 8.2(a)this Article VIII, even though the facts or series of related facts giving rise to such claim may constitute a breach of more than one representation, warranty or covenant or agreement set forth herein, or in any of the agreements or instruments entered into in connection with the Closing or (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable adjustments to the Company Members Buyer Common Stock issuable hereunder pursuant to Section 2.33.3.
(c) Subject to Section 10.4(d)Notwithstanding the foregoing, in no event shall any Company Member have liability payments by an Indemnifying Party pursuant to this Article 10 VIII in excess respect of any Losses shall be limited to the Merger Consideration payable (inclusive amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received by the portion Indemnified Party in respect of the Holdback Amount and the Expense Fund Amount withheld from any such Indemnifying Party’s proceeds) claim. The Indemnified Party shall use its commercially reasonable efforts to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d)recover under insurance policies or indemnity, in no event shall contribution or other similar agreements for any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger ConsiderationLosses.
(d) Notwithstanding anything herein to the contraryNOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committedNO INDEMNIFIED PARTY WILL BE ENTITLED TO INDEMNIFICATION UNDER THIS ARTICLE VIII WITH RESPECT TO, participated in or had actual knowledge of fraudNOR SHALL THE INDEMNIFIABLE LOSSES HEREUNDER INCLUDE OR BE DEEMED TO INCLUDE, intentional misrepresentation or willful breachAND EACH PARTY EXPRESSLY WAIVES ANY AND ALL RIGHTS WITH RESPECT TO CLAIMS UNDER THIS ARTICLE VIII AS TO CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, IN EACH CASE THAT ARE NOT THE NATURAL, PROBABLE AND REASONABLY FORESEEABLE RESULT OF THE EVENT GIVING RISE TO THE CLAIM FOR SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OTHER LAW OR OTHERWISE AND WHETHER OR NOT ARISING FROM THE OTHER PARTY’S OR ANY OF ITS AFFILIATES’ NOR ANY OF THEIR RESPECTIVE REPRESENTATIVES’ SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT; PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL NOT APPLY TO ANY LIABILITIES ARISING AS A RESULT OF FRAUD OR IN CONNECTION WITH ANY THIRD-PARTY CLAIM TO THE EXTENT ANY SUCH DAMAGES ARE PAYABLE BY THE INDEMNIFIED PARTY TO THE APPLICABLE THIRD-PARTY.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KLX Energy Services Holdings, Inc.)
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled the following limitations shall apply to recover exemplary or punitive damages claims under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).VI:
(i) The rights Indemnifying Party shall not be liable with respect to indemnificationany Damages for claims made under Section 6.1(a) or Section 6.2(a), compensation as the case may be, except to the extent that the aggregate amount of all Damages to which the Indemnified Party has otherwise become entitled under Section 6.1(a) or reimbursement Section 6.2(a), as the case may be, exceeds eight-tenths of one percent (0.8%) of the Adjusted Purchase Price, at which point the Indemnifying Party shall be liable only for the amount by which such Damages exceed such amount.
(ii) The Indemnifying Party shall not be liable with respect to any Damages for claims made under Section 6.1(a) or Section 6.2(a), as the case may be, to the extent that such Damages, when aggregated with all other Damages to which the Indemnified Party has become entitled under Section 6.1(a) or Section 6.2(a), as the case may be, exceed ten percent (10%) of the Adjusted Purchase Price. The Seller shall not be liable with respect to any Damages for claims made under Section 6.1(f) to the extent that such Damages, when aggregated with all other Damages to which the Buyer has become entitled under Section 6.1(f) exceed ten percent (10%) of the Adjusted Purchase Price. For the avoidance of doubt, the limitations set forth in the preceding two sentences are intended by the parties to represent two separate and distinct limitations, with no overlap between them. The limitations described in this Section 6.5(a)(ii) shall not apply in the case of fraud or intentional misrepresentation.
(iii) For the purpose of determining Damages under this Article VI, after a determination has been made that a breach of a representation or warranty has occurred taking into account any materially, Business Material Adverse Effect, Buyer Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation and warranty, such Damages shall be determined without regard to any materiality, Business Material Adverse Effect, Buyer Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(iv) No Indemnifying Party shall be liable under this Article VI for any Damages, including, in the case of the Seller, any Damages arising from a breach of the representations and warranties contained in Sections 2.22 (Inventory) and 2.23 (Accounts Receivable), to the extent such Damages are included in the calculation of any adjustment to the Purchase Price made pursuant to Section 1.4 or included in accruals, reserves or provisions therefor reflected in the Final Closing Statement.
(v) The amount of Damages recoverable by an Indemnified Party under this Agreement shall not be affected reduced by the amount of any investigation conducted payment actually received (net of costs) by Parent, the Indemnified Party (or any knowledge acquired Affiliate thereof) with respect to such Damages from any insurance provider. The Indemnified Party shall use commercially reasonable efforts to pursue, and to cause its Affiliates to pursue, all insurance claims to which it may be entitled in connection with any Damages it incurs, provided, however that no Indemnified Party shall be obligated to institute litigation, arbitration or other dispute resolution processes against an insurer as part of its commercially reasonable efforts under this sentence. If the Indemnified Party (or capable an Affiliate) becomes entitled to receive any insurance payment in connection with any claim for Damages for which it has already received a payment from the Indemnifying Party (or any Affiliate thereof), it shall pay to the Indemnifying Party, within 30 days after such payment becomes receivable, an amount equal to the excess of being acquired(A) at the amount previously received by the Indemnified Party from the Indemnifying Party (or any time of its Affiliates) with respect to such claim plus the amount of such insurance payment, over (whether before B) the amount of Damages to which the Indemnified Party has become entitled under this Agreement in connection with such claim.
(vi) In no event shall the Indemnifying Party have any obligation or liability for:
(A) any Damages that are special or punitive, except to the extent arising from a third party claim, save in the case of a claim under Section 10.5 of Article X;
(B) any Damages arising from or relating to, directly or indirectly, any legislation or accounting principle not in force on the Closing Date (or any alteration or repeal of any legislation or accounting principle after the Agreement Date or the Closing Date), or which takes effect retroactively, or occurs as a result of any increase in the rate of Tax in force on the Closing Date or any change in the practices of the relevant Governmental Entity (including changes in the interpretation of relevant legislation or accounting principles); or
(C) any Damages arising from or related to a breach of the representations and warranties of the Seller contained in Article II which are claimed in any Claim Notice received by the Seller after the expiration the relevant survival period for representations and warranties set forth in Section 6.4.
(vii) In no event shall the Seller have any obligation or liability for any matter disclosed in the Disclosure Schedule which relates to a purported breach of a representation or warranty contained in Article II.
(b) From and after the Closing, except with respect to the accuracy (i) claims for equitable relief, including, without limitation, specific performance, made with respect to breaches of any covenant or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation contained in this Agreement or the existence Ancillary Agreements and (ii) claims subject to resolution in accordance with the procedures set forth in Sections 1.2(b) and 1.4, the rights provided to the Parties under this Article VI shall be the sole and exclusive remedies of facts the Parties and circumstances that provide their respective Affiliates with respect to claims under this Agreement or otherwise relating to the basis for a Claim hereundertransactions contemplated hereby, except in the case of fraud or willful breach.
Appears in 1 contract
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable Threshold. Notwithstanding anything to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d)contrary contained herein, in no event shall any Company Member have liability pursuant to seeking indemnification for Damages under this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d)8, in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any will make a claim for Damages in respect of General Representation Claims unless and until such Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed at least Five Hundred Thousand Dollars ($287,500 500,000) (the “Deductible”"Threshold"), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company event such Indemnified Party may shall be entitled to recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the full amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages, including Damages comprising the Threshold; provided, however, that none such Threshold will not apply to any claim for indemnification made by any Indemnified Party that results from: (A) fraud or willful breach hereof, (B) the Company's breach of the Indemnified Parties shall have any obligation representations or warranties set forth in Section 3.4, 3.5, 3.11 and 3.18, (C) Excess Payments and (D) Excess Expenses, to (i) seek recovery against any insurance policies (other than the Tail Policy) or extent the same did not result in a reduction of the Total Merger Consideration.
(ii) obtain insurance coverage or other third party protection with respect to any particular matterCap. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party payment by Indemnifying Parties shall be entitled payable to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except Parties to the extent the aggregated claims for Damages of such punitive damages are awarded to a third party or Indemnified Parties exceeds (A) in the case of fraudclaims against the Parent Indemnifying Parties, intentional misrepresentation or willful breach).
an amount equal to Thirty Million Dollars (i$30,000,000) and (B) in the case of claims against the Company Indemnifying Parties, the funds held in the Indemnification Escrow Fund pursuant to the Indemnification Escrow Agreement. The rights to indemnification, compensation or reimbursement limitations of the indemnity obligations of the Indemnifying Parties set forth in this Agreement Section 8.2(c)(ii) shall not be affected apply to any claim for indemnification made by any investigation conducted by Parent, Indemnified Party that results from: (X) fraud or any knowledge acquired willful breach hereof or (Y) the Company's breach of the representations or capable of being acquired) at any time (whether before warranties set forth in Section 3.4 or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderSection 3.5.
Appears in 1 contract
Samples: Merger Agreement (Allergan Inc)
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company MemberThe Purchaser’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim right to indemnification pursuant to Section 10.3(a) or Section 10.3(c12.02(a) (other than a claim in connection with a Fundamental respect of any Unlimited Representation) and SSCE’s right to indemnification pursuant to Section 12.04(a) (a “Parent General Claim”other than in respect of any Unlimited Representation) are each subject to the following limitations:
(a) The Indemnified Party shall not be entitled to assert any right of indemnification pursuant to Section 12.02(a) or 12.04(a), as applicable, for any Loss after the aggregate liability date on which the applicable representation or warranty terminates pursuant to Section 12.01, provided that if a Notice of Claim shall have been given prior to such termination date, the Parent Indemnified Parties for all Party shall continue to have the right to be indemnified with respect to such claims shall be capped at the General Representation Cappending claim.
(b) In the case of any Claim under (iNo indemnification claim may be made against an Indemnifying Party for indemnification pursuant to Section 12.02(a) Section 10.2(a) or 12.04(a), as applicable, with respect to any Fundamental Representation (i) individual item of or any certifications made with respect thereto pursuant to Section 8.2(a)series of directly similar individual items of Loss which in aggregate are less than the Minimum Claim Amount, or (ii) any individual items of clauses Loss (bwhich exceed the Minimum Claim Amount) through unless the aggregate of all such Losses (jwhich exceed the Minimum Claim Amount) of Section 10.2 ((i) exceeds the Threshold, and (ii), collectively, “Special Matters”), each Company Member then the Indemnifying Party shall only be severally and not jointly required to pay or be liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for excess over the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3Threshold.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such The Indemnifying Party’s proceeds) maximum liability to such Company Member the Indemnified Party for any and all Losses pursuant to Section 2.3. Subject to Section 10.4(d12.02(a) or 12.04(a), in no event as applicable, shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of not exceed the Merger ConsiderationMaximum Claim Amount.
(d) Notwithstanding anything Anything herein to the contrarycontrary notwithstanding, there except in the case of fraud or intentional misrepresentation, no breach of any representation, warranty, covenant or agreement contained herein shall be no maximum liability for give rise to any Company Member right on the part of any party, after the Closing, to rescind this Agreement or Parent Indemnified Party who committed, participated in or had actual knowledge any of fraud, intentional misrepresentation or willful breachthe transactions contemplated hereby.
(e) No Parent Indemnified Party may recover any Damages in respect In computing such individual or aggregate amounts of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurredclaims, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of each claim shall be deemed to be an amount net of any Damages in respect insurance proceeds and any indemnity, contribution or other similar payment actually recovered by the Indemnified Party or any Affiliate of the inaccuracy in or breach of Indemnified Party from any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregardedthird party with respect thereto.
(f) Notwithstanding anything herein to The Parties hereto hereby acknowledge and agree that their sole and exclusive remedy after the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection Closing Date with respect to any particular matterand all monetary claims relating to the subject matter of this Agreement, the Transaction Documents and any and all agreements contemplated by this Agreement shall be pursuant to the indemnification provisions set forth in this Article XII. Each of Parent and Representative (on behalf In furtherance of the Company Membersforegoing, each party hereto hereby waives, to the fullest extent permitted under applicable Law, any and all rights, claims and causes of action it may have against the other party in respect of this Agreement, the Transaction Documents or the transactions arising under or based upon any Law (including, without limitation, any such rights, claims or causes of action arising under or based upon common law or otherwise) or Environmental Laws, including, but not limited to, the Resource Conservation and Recovery Act and the Comprehensive Environmental Response, Compensation and Liability Act of 1980. Notwithstanding the foregoing, nothing in this Section 12.03(f) shall use commercially reasonable efforts to mitigate Damages limit the rights or remedies of any party hereto for fraud in accordance connection with the common law doctrine of mitigationtransactions contemplated herein.
(g) Neither Seller shall have any liability under any provision of this Agreement or Transaction Document for Losses to the extent such Losses relate solely to actions taken by Purchaser after the Closing Date. No Indemnified Indemnifying Party shall be entitled to double recovery for have any indemnifiable Damages even though such Damages may be recoverable liability under more than one any provision of Section 10.2 this Agreement or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this AgreementTransaction Documents for punitive damages, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to by a court of competent jurisdiction in connection with a claim made by a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) party. The rights Purchaser shall take all reasonable steps to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect mitigate Losses to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderextent required by Law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Smurfit Stone Container Corp)
Limitations. (a) In With respect to claims for Damages arising under Section 7.1(a) or Section 7.2(a), the case of any General Representation Claim, each Company Member respective Indemnifying Party shall not be severally and not jointly liable for any such Company Member’s Pro Rata Share Damages (i) to the extent that the Damages sought by any such individual claim (or group of any related claims that arise from the same event or circumstances) do not exceed $10,000 and (ii) unless and until the aggregate amount of all such Damages resulting therefromsought by such claims exceeds the Deductible (at which point the respective Indemnifying Party shall become liable for all Damages under Section 7.1(a) or Section 7.2(a), as applicable, in excess of the Deductible); provided that the aggregate liability of the Company Members for all General Representation Claims limitation set forth in this Section 7.5(a) shall be capped at the General Representation Cap. In the case of not apply to claims based on fraud or intentional misrepresentation, any claim pursuant to Section 10.3(a7.1(a) or Section 10.3(c7.2(a) (other than relating to a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability breach of any of the Parent Indemnified Parties for all such claims shall be capped at the General Representation CapFundamental Representations.
(b) In With respect to claims for Damages arising under Section 7.1(a) or Section 7.2(a), the case respective Indemnifying Party shall not be liable for any such Damages in excess of any Claim under the Cap; provided that the limitation set forth in this Section 7.5(b) shall not apply to (i) claims based on fraud or intentional misrepresentation or (ii) any claim pursuant to Section 10.2(a7.1(a) or Section 7.2(a) relating to a breach of any of the Fundamental Representations or the representations and warranties set forth in Sections 3.13(c), (e) (solely with respect to the first sentence thereof), (q) and (r).
(c) With respect to any claims for Damages pursuant to the indemnification obligations set forth in this Article VII, each Indemnifying Party shall not be liable for any Damages in excess of either (i) if the Closing Promissory Note is not issued, the Closing Consideration or (ii) if the Closing Promissory Note is issued, the sum of the Closing Cash Payment plus the Outstanding Principal Amount; provided that the limitation set forth in this Section 7.5(c) shall not apply to claims based on fraud or intentional misrepresentation.
(d) None of the Seller or any Guarantor shall have any right of contribution against the Buyers or either Company with respect to any breach by either Company or any Subsidiary of any of the representations, warranties, covenants or agreements pertaining to the Companies.
(e) Except with respect to claims based on fraud or intentional misrepresentation, and claims for specific performance and other equitable relief of any of the provisions of this Agreement, after the Closing, the rights of the Parties under this Article VII shall be the exclusive remedy of the Parties with respect to claims resulting from or relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in this Agreement. Notwithstanding anything to the contrary herein, nothing contained in this Agreement shall limit the remedies available to or the liability of any Party in the event of fraud or intentional misrepresentation, whether or not the Closing shall have occurred.
(f) None of the Seller or any Guarantor shall make any claim for indemnification against the Buyers or either Company because such Seller or Guarantor was a controlling person, director, employee or other representative of such Company or was serving as such for another Person at the request of the Buyers or either Company (whether such claim is for Damages of any kind or otherwise and whether such claim is pursuant to any statute, charter or other entity organizational document, contract or other agreement or otherwise) with respect to any Fundamental Representation claim brought by an Indemnified Person against any Member relating to this Agreement or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of transactions contemplated hereby or the portion of the Holdback Amount facts and the Expense Fund Amount withheld from circumstances underlying such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigationclaim.
(g) No Indemnified Any payments made to a Party pursuant to this Article VII shall be entitled treated as an adjustment to double recovery the Closing Consideration for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3tax purposes to the extent permitted by Law.
(h) Notwithstanding anything For purposes of calculating Damages in connection with an indemnification claim made under this Article VII, no Indemnifying Party will be obligated to the contrary contained in this Agreementany other Person for any consequential, under no circumstances will any Indemnified Party be entitled to recover indirect, special, exemplary or punitive damages (other than Damages for diminution in value), except in the event that an Indemnified Party is required to pay consequential, indirect, special, exemplary or punitive damages as a result of a Third Party Claim for which the Indemnified Party is entitled to indemnification under this Article 10 VII (except to not taking into account for purposes of determining the extent availability of indemnification with respect such punitive Third Party Claim the limitation on recoverable damages are awarded to a third party or set forth in the case of fraud, intentional misrepresentation or willful breachthis Section 7.5(h)).
(i) The rights amount of Damages recoverable by an Indemnified Party under this Article VII shall be reduced, on a dollar-for-dollar basis, by the amount of (i) any insurance proceeds actually received by such Indemnified Party on account of such Damages in connection with a claim for indemnification under this Article VII, provided, however, that the insurance proceeds actually received by the Indemnified Party shall be net of the cost of collection thereof and net of the cost of increased premiums directly attributable to indemnificationclaims associated with such recoveries for a period of three years.
(j) For the avoidance of doubt, compensation or reimbursement the allocation of the Company Share consideration set forth in this Agreement Section 1.3(d) shall not be affected by relevant to or considered in any investigation conducted by Parent, respect when calculating Damages or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderdetermining liability under this Article VII.
Appears in 1 contract
Samples: Master Share Purchase Agreement (Endurance International Group Holdings, Inc.)
Limitations. (a) In the case of any General Representation Claim, each Company Member Neither party shall be severally required to indemnify the other party under Sections 11.3(a) and not jointly liable 11.4(a) until the indemnifiable damages, individually or in the aggregate, exceed $150,000 (the "Hurdle Rate"), at which point such indemnifying party shall be responsible for such Company Member’s Pro Rata Share all indemnifiable damages that may arise, irrespective of any Damages resulting therefrom, the Hurdle Rate; and provided that indemnifiable damages shall accumulate until such time as they exceed the aggregate liability of Hurdle Rate, whereupon the Company Members for all General Representation Claims party to be indemnified shall be capped at entitled to seek indemnification for the General Representation Cap. In the case full amount of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Capdamages.
(b) In the case absence of any Claim fraud, after the Closing the aggregate amount of indemnifiable damages for which the Seller shall be liable under (i) Section 10.2(a) this Article XI shall not exceed the Cash Amount plus the Earn-Out Amounts, if any, as adjusted in accordance with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) the provisions of Section 10.2 ((i) and (ii)1.3; provided however, collectively, “Special Matters”), each Company Member any claim for fraud shall not be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable subject to the Company Members pursuant to Section 2.3foregoing limitation.
(c) Subject In the absence of fraud, no party hereto may pursue any remedy with respect to Section 10.4(d)claims arising out of this Agreement, the sale of the Shares, the Corporation, its Subsidiaries or their respective assets, liabilities and businesses in no event shall each case arising under or based upon any Company Member have liability pursuant to Federal, state, local or foreign statute, law, ordinance, rule or Regulation or otherwise, other than for monetary damages brought under this Article 10 XI, as limited by Sections 11.2 and 11.3 hereto. Without limiting the foregoing, no legal action in excess of tort or strict liability may be maintained by the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger ConsiderationPurchaser.
(d) Notwithstanding anything herein Indemnification claims shall be reduced, by and to the contraryextent, there that an indemnitee shall receive or be no maximum liability for any Company Member deemed to be entitled to receive proceeds under insurance policies, risk sharing pools, or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether similar arrangements specifically as a breach of a representation or warranty has occurredresult of, and in determining compensation for, the amount subject matter of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of an indemnification claim by such representation or warranty shall be disregardedindemnitee.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Samples: Stock Purchase Agreement (Valuevision International Inc)
Limitations. (a) In Notwithstanding the case provisions of any General Representation ClaimSection 5.1, each Company Member Buyer and the Corporation shall not be entitled to recover Damages for which Buyer or the Corporation is entitled to indemnification as a result of or arising out of matters described in Section 5.1(a) until such Damages exceed $50,000, and if such Damages exceed such amount, Buyer and the Corporation shall be severally and not jointly liable for entitled to recover all such Company Member’s Pro Rata Share of any Damages; provided Damages resulting therefrom, provided that from the aggregate liability breach of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to representations and warranties in Section 10.3(a2.3 (Title), Section 2.9 (Environmental), Section 2.11 (Taxes), Section 2.23 (Employee Benefits), Section 6.2 (Expenses) or Section 10.3(c6.14 (Inventory) (shall not be subject to the limitation contained in this Section 5.3(a). Notwithstanding the provisions of Section 5.1, Seller shall have no liability under Section 5.1 with respect to any costs or expenses of any remediation unless ordered or demanded by a court, governmental body or agency, or other than a claim third party, or such remediation is required to be undertaken by applicable Environmental Law or is necessary in connection order for the Corporation to be in compliance with a Fundamental Representation) (a “Parent General Claim”), applicable Environmental Laws or would be voluntarily undertaken under customary business practices in the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Capindustry.
(b) In Notwithstanding the case provisions of any Claim under (i) Section 10.2(a) with respect 5.1, the aggregate Damages for which Buyer or the Corporation is entitled to any Fundamental Representation or any certifications made with respect thereto indemnification pursuant to Section 8.2(a)5.1(a) shall not exceed an amount equal to the Closing Payment; provided Damages resulting from the breach of the representations and warranties in Section 2.3 (Title) shall not be subject to the foregoing limitation, (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member but shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable limited to an amount equal to the Company Members pursuant Closing Payment and all other payments to Section 2.3be made by Buyer or Corporation to Seller under the other agreements referenced herein.
(c) Subject Any proceeds from insurance paid to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess or on account of the Merger Consideration payable (inclusive Buyer as a direct result of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member any fact, event or circumstance requiring indemnity pursuant to Section 2.3. Subject to 5.1 shall constitute a credit which shall be offset against the total Damage (before the application of Section 10.4(d5.3(a), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration).
(d) Notwithstanding anything herein to the contrary, there Any damage calculated for purposes of Section 5.1 shall be no maximum liability for calculated taking into account any Company Member offsetting federal, state, local or Parent Indemnified Party who committed, participated in or had actual knowledge foreign tax benefits which may accrue because of fraud, intentional misrepresentation or willful breachsuch Damage to Buyer.
(e) No Parent Indemnified Party may recover any Damages On September 15, 2000, the parties shall be released from the agreements of indemnification contained in Sections 5.1 and 5.2 in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that any claims which have not been incurred, paid or properly accrued exceed $287,500 (the “Deductible”)made, in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurredwriting, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular prior to such date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail PolicySeller shall not be released from the agreements of indemnification arising under Section 5.1(a) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each breaches of Parent representations and Representative warranties contained in Section 2.3 (on behalf of the Company MembersTitle) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
2.11 (h) Notwithstanding anything to the contrary contained Taxes), or breaches of covenants in this Agreement, all of which shall continue until the applicable statute of limitations has expired; (ii) Seller shall not be released from the agreements of indemnification arising under no circumstances will any Indemnified Party Sections 5.1(b) or 5.1(d), all of which shall continue until the applicable statute of limitations has expired, at which xxxx Xxxxxx shall be entitled released from such agreements of indemnification; and (iii) the Seller shall not be released from the agreement of indemnification arising under Section 5.1(a) with respect to recover exemplary breaches of representations and warranties contained in Section 2.29 (Environmental) or punitive damages under this Article 10 (except to Section 5.1(c), each of which shall continue until February 15, 2004, at which xxxx Xxxxxx shall be released from such agreements of indemnification. Notwithstanding the extent such punitive damages are awarded to a third party or foregoing, all agreements of indemnification under Sections 5.1 and 5.2 shall remain effective in the case respect of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth claims made in writing by giving notice as provided in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect prior to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts such respective dates until such claims are finally determined and circumstances that provide the basis for a Claim hereundersatisfied in full.
Appears in 1 contract
Limitations. (a) In Notwithstanding anything to the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”)contrary herein, the aggregate liability of the Parent Indemnified Parties Seller for all such claims Damages under this Article VI shall be capped at not exceed the General Representation amount of the Cash Payment (the "Cap").
(b) In Notwithstanding anything to the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a)contrary herein, (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Buyer for Damages under this Article VI shall not exceed the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3Cap.
(c) Subject Notwithstanding anything to Section 10.4(d)the contrary herein, in no event neither Party shall have any Company Member have liability pursuant indemnification obligation to an Indemnified Party arising under this Article 10 in excess VI until the amount of Damages suffered by the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in with respect to a single event exceeds $20,000 (the "Single Event Threshold") or had actual knowledge the aggregate amount of fraud, intentional misrepresentation or willful breach.
(e) No Parent Damages suffered by the Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed exceeds $287,500 100,000 (the “Deductible”"Aggregate Threshold"), in which case the Parent Indemnified Parties may recover all Damages Indemnifying Party shall be obligated to pay only the amounts in excess of the Deductible. No Company Single Event Threshold or the Aggregate Threshold, as the case may be.
(d) Except as provided in Article VII hereof, after the Closing, the rights of the Indemnified Parties under this Article VI shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in this Agreement.
(e) In no event shall any Indemnifying Party be responsible and liable to any Indemnified Party may recover for any Damages or other amounts under this Article VI that constitute punitive or consequential damages or other damages that are not compensatory in respect of Parent General Claims unless and until Damages in the aggregate under all Claims nature (other than any such damages that have been incurred, paid or properly accrued exceed the Deductible, in are payable to any third party which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount is not an Affiliate of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregardedIndemnified Party).
(f) Notwithstanding anything herein The liability of any Indemnifying Party for any Damages shall be reduced by any Tax benefit if attributable to any deduction (for Tax purposes) realized by the Indemnified Party as a result of the item that gave rise to the contraryDamages. Such Tax benefit shall be determined by assuming (i) that the applicable Tax rate was the highest marginal federal, state, local and non-U.S. Tax rate for the relevant Tax or Taxes (taking into account, where applicable, the deductibility and credit of any Tax for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from computing any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith other Tax) applicable to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Partyfor the most recent Tax period for which a Tax Return relating to such Tax was filed or, as applicableif no such Tax Return was filed, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies Tax was determined and paid (other than the Tail Policyas an estimated Tax payment) or and (ii) obtain insurance coverage that any deferred Tax benefit was attributable to depreciation or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages amortization was immediately realized in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything an amount equal to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except present value of such deferred Tax benefit using a discount rate equal to the extent such punitive damages are awarded to a third party or "prime rate" as published in the case of fraudWall Street Journal as in effect on the day that the Tax benefit was deemed to be realized, intentional misrepresentation or willful breach)compounded monthly.
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Samples: Purchase Agreement (Integrated Health Technologies Inc)
Limitations. (a) In the case Notwithstanding any other provision of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein Agreement to the contrary, there if on the Closing Date Buyer knows of facts that would cause one or more of the representations and warranties made by MEDCO not to be true as of the date given, Buyer shall have no right or remedy after the Closing with respect to such inaccuracy and shall be no maximum deemed to have waived its rights to indemnification in respect thereof. A party shall not have any liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation representation, warranty or warranty has occurredcovenant made in this Agreement unless the aggregate amount of Adverse Consequences to the party for such breach exceeds Sixty Seven Thousand Seven Hundred and Fifty Dollars ($67,750), and in determining then such party shall be liable for the full amount of any Damages in respect of Adverse Consequences suffered or incurred by the inaccuracy in or breach of any representation or warranty as of any particular dateother party, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein subject to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase other limitations set forth in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties this Agreement. The parties shall have any obligation a duty to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with any Adverse Consequences arising out of or relating to this Agreement or the common law doctrine transactions contemplated hereby. The amount of mitigation.
(g) No Indemnified Party any Adverse Consequences for which a party claims indemnification under this Agreement shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
reduced by: (i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), available insurance proceeds with respect to the accuracy such Adverse Consequences; (ii) any available tax benefits with respect to such Adverse Consequences, and (b) indemnification or inaccuracy ofreimbursement payments available from third parties with respect to such Adverse Consequences. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, or compliance withNO PARTY SHALL BE LIABLE FOR SPECIAL, any representationPUNITIVE, warrantyEXEMPLARY, covenantINCIDENTAL, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderCONSEQUENTIAL OR INDIRECT DAMAGES, LOST PROFITS OR LOST BENEFITS, LOSS OF ENTERPRISE VALUE, DIMINUTION IN VALUE OF ANY BUSINESS, DAMAGE TO REPUTATION OR LOSS TO GOODWILL, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OTHER LAW OR OTHERWISE AND WHETHER OR NOT ARISING FROM ANY OTHER PARTY’S SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT (INCLUDING ANY LOSSES BASED UPON “MULTIPLE OF PROFITS” OR “MULTIPLE OF CASH FLOW” OR OTHER VALUATION METHODOLOGY).
Appears in 1 contract
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, the following limitations shall apply to indemnification claims under this Agreement (with the exception of claims based upon fraud):
(i) no circumstances will individual claim (or series of related claims) for indemnification under Section 7.1(a) or Section 7.2(a) shall be valid and assertable unless it is (or they are) for an amount in excess of [*];
(ii) the Seller shall be liable with respect to claims under Section 7.1(a) only if the aggregate Damages related to such claims, when considered together, exceeds [*] in which case the Seller shall be liable for all such Damages, and not only those Damages in excess of such amount; and
(iii) the aggregate liability of the Seller for all Damages under Section 7.1(a) shall not exceed [*], except with respect to an inaccuracy in any Indemnified of the representations or warranties set forth in Section 3.1, 3.2, 3.4, and 3.14, which shall not be subject to such limitation.
(b) In no event shall any Indemnifying Party be entitled to recover exemplary responsible or punitive damages liable for any Damages or other amounts under this Article 10 VII that are consequential, in the nature of lost profits, diminution in the value of property, special or punitive or otherwise not actual damages (except to the extent such punitive damages same are awarded owing pursuant to a third party or claim). Each Party shall (and shall cause its Affiliates to) use reasonable commercial efforts to pursue all legal rights and remedies available in order to minimize the case of fraud, intentional misrepresentation or willful breach)Damages for which indemnification is provided to it under this Article VII.
(c) The amount of Damages recoverable by an Indemnified Party under this Article VII with respect to an indemnity claim shall be reduced by (i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected the amount of any payment received by any investigation conducted by Parent, or any knowledge acquired such Indemnified Party (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Datean Affiliate thereof), with respect to the accuracy Damages to which such indemnity claim relates, from an insurance carrier, and (ii) the amount of any Tax benefit realized by such Indemnified Party (or inaccuracy ofan Affiliate thereof) which is attributable to the Damages to which such indemnity claim relates. An Indemnified Party shall use reasonable commercial efforts to pursue, and to cause its Affiliates to pursue, all Tax benefits to which it may be entitled in connection with any Damages it incurs, and the Parties shall cooperate with each other in pursuing insurance claims with respect to any Damages or compliance withany indemnification obligations with respect to Damages. If an Indemnified Party (or an Affiliate) receives any insurance payment in connection with any claim for Damages for which it has already received an indemnification payment from the Indemnifying Party, it shall pay to the Indemnifying Party, within 30 days of receiving such insurance payment, an amount equal to the excess of (A) the amount previously received by the Indemnified Party under this Article VII with respect to such claim plus the amount of the insurance payments received, over (B) the amount of Damages with respect to such claim which the Indemnified Party has become entitled to receive under this Article VII.
(d) Except with respect to claims for fraud or for equitable relief, including specific performance, made with respect to breaches of any representation, warranty, covenant, covenant or agreement or obligation contained in this Agreement or the existence Ancillary Agreements, the rights of facts the Indemnified Parties under this Article VII shall be the sole and circumstances exclusive remedies of the Indemnified Parties and their respective Affiliates with respect to claims covered by Section 7.1 or Section 7.2 or otherwise relating to the transactions that provide are the basis for a Claim hereundersubject of this Agreement. Without limiting the generality of the foregoing, except with respect to claims based on fraud, in no event shall any Party, its successors or permitted assigns be entitled to claim or seek rescission of the transactions consummated by this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Indevus Pharmaceuticals Inc)
Limitations. The following limitations shall apply to the foregoing indemnification obligations:
(a) In the case All claims for indemnification arising out of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurredshall be made on or before the expiration date of the applicable survival period for such representation or warranty;
(b) All claim for indemnification arising out of the failure to perform an obligation required to be performed under this Agreement shall be made on or before the third anniversary of the date when such agreement was to be performed and completed; and
(c) Neither Bentley, the Stockholders nor Innovatech shall be entitled to indemnification on account of breach or inaccuracy of representations or warranties until the aggregate amount of their respective claims exceeds CDN$275,000 (the "Threshold") but only to the extent that such claims exceed the Threshold. No Threshold shall apply with respect to the representations made in Sections 7.1, 7.2, 7.3, 7.6 and in determining 7.7(a) and (b) and Section 8.1(b). The Threshold shall be reduced by the full amount of any Damages shortfalls, if any, in respect the Canadian tax credits realized by HMR below the amounts reflected in its financial statements.
(d) In measuring Bentley's damages, account shall be taken of Bentley's 25% ownership of HMR's Class A shares prior to the Closing.
(e) The liability of an Indemnifying Party (other than Bentley and Newco) shall be limited to the portion of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of applicable Purchase Price received by each such representation or warranty shall be disregardedIndemnifying Party.
(f) Notwithstanding anything herein A Stockholder's or Innovatech's indemnification obligation may, at its or his election, be satisfied by delivery of shares of Buyer Stock or Exchangeable Shares, as the case may be, having a fair market value equal to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 the indemnification obligation. For purposes of this paragraph only, the fair market value of shares of Buyer Stock or Section 10.3Exchangeable Shares as the case may be, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection then fair market value thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicabledetermined in good faith by Bentley's Board of Directors but not less than US$14.58 per share of Buyer Stock or Exchangeable Shares, in connection with such Damages; providedas applicable (subject to appropriate adjustments for stock splits, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent recapitalizations and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breachsimilar events).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Limitations. (a) In Notwithstanding any provision of this Agreement to the case contrary, no party shall have any obligation to indemnify any person entitled to indemnity under this Article 5 or to pay damages in respect of contract or other claims arising under this Agreement or any other Transaction Document unless the persons so entitled to indemnity or recovery thereunder have suffered Losses in an aggregate amount attributable to all Claims and obligors in excess of Fifty Thousand Dollars ($50,000) (the "THRESHOLD"), except claims arising from any breach of the representations and warranties contained in Section 2.21 (Taxes) shall not be subject to the Threshold. Once the aggregate amount of Losses exceeds the Threshold, persons entitled to recovery shall be entitled to recover the full amount of all Losses in excess of the Threshold. No person shall be entitled to indemnification under this Article 5 for Losses directly or indirectly caused by a breach by such person of any General Representation Claimrepresentation, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of warranty, covenant or other agreement set forth in this Agreement or any Damages resulting therefrom, provided that duty to the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cappotential Indemnitor.
(b) In The maximum aggregate liability of the case Stockholder and Dowexx xx the one hand, to Buyer, and Buyer, on the other hand to the Stockholder and Dowexx, xxr all claims arising under this Agreement and the other Transaction Documents shall equal the aggregate Purchase Price. All claims of Buyer against the Stockholder and Dowexx xxxsing under this Agreement and the other Transaction Documents shall be settled first by offset against the Note. The amount of any Claim under such claim over and above the amount available by offset against the Note shall be paid either in cash or in Shares, at the option of the Stockholder and Dowexx. Xxr purposes of this Section 5.6(b), the value of Shares received shall be (i) Section 10.2(aprior to the IPO, the per share Agreed Price (as defined in the Stockholder Agreement) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), then prevailing; and (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii)after the IPO, collectivelythe per share closing price on the primary exchange or market on which the Common Stock is traded on the date such indemnifiable Losses become payable, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share except that the value of any Damages resulting therefrom, provided that Shares sold in bona fide third party transactions will be the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable gross proceeds to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope Stockholder of such representation or warranty shall be disregardedsale.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Limitations. (a) In Notwithstanding anything to the case of any General Representation Claimcontrary herein, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that (i) the aggregate liability of the Company Members Indemnifying Parties (Buyer or Seller) for all General Representation Claims Damages under this Article VII shall not exceed Thirty Five percent (35%) of the purchase price paid at Closing, and (ii) no Indemnifying Party Seller shall be capped liable under this Article VII unless and until the aggregate Damages for which they would otherwise be liable under this Article VII exceed $25,000 (at which point the General Representation Cap. In Indemnifying Party shall become liable for the case aggregate Damages amounts in excess of any $25,000) (“the Basket”); provided that the limitation set forth in this sentence shall not apply to a claim pursuant to Section 10.3(a6.1(a) or Section 10.3(c) (other than relating to a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability breach of the Parent Indemnified Parties for all such claims shall be capped at representations and warranties set forth in Article II or Sections 3.1, 3.2, 3.3, 3.4, 4.1 or 4.2 or any liability set forth in Section 7.1(e) and further provided that no reference to materiality in Articles 3 or 4 will increase the General Representation CapBasket amount.
(b) In the case Notwithstanding any other provision of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable this Agreement to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d)contrary, in no event shall any Company Member have liability indemnification pursuant to this Article 10 in excess VII shall be made:
(i) if, and to the extent that, the indemnifying party has, within thirty (30) days following receipt of a notice from the indemnified party, cured such breach by specific performance or otherwise;
(ii) if, and to the extent that, the indemnified party is entitled to receive or has received recovery for the relevant Damages from any other person or entity (including under any insurance policy) or if, and to the extent that, non-recovery from any other person or entity is due to the failure of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from indemnified party to use its reasonable best efforts to obtain such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.recovery;
(diii) Notwithstanding anything herein if, and to the contraryextent that, there shall be no maximum liability for any Company Member the relevant Damages arise or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether result from a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to which (a) the accuracy Managers or inaccuracy of, officers of the Buyer had actual knowledge on or compliance with, any representation, warranty, covenant, agreement before the Closing Date of the facts or obligation or the existence of facts and circumstances that provide are alleged to form the basis of such breach; and
(c) The right to indemnification provided in this Article VII shall be the Buyer’s exclusive remedy for any Damages it suffers as a Claim hereunderresult of the transactions contemplated by this Agreement.
Appears in 1 contract
Limitations. (a) In Notwithstanding anything to the case of any General Representation Claimcontrary in this Agreement, each Company Member shall be severally and not jointly liable except for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”)based on fraud, the aggregate Seller shall only have liability of to the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.Purchaser or any other Person hereunder:
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made the matters described in Section 11.02(b)(i), to the extent that the aggregate Damages suffered by an Indemnified Party as the result thereof exceed $1,000,000; and
(ii) with respect thereto to the matters described in Section 11.02(b)(ii), to the extent of 60% of the first $20,000,000 in aggregate Damages incurred by all Indemnified Parties as the result thereof, provided that (A) with respect to a Remedial Action, the Indemnified Party shall have notified the Seller in writing pursuant to Section 8.2(a)11.03(a) on or prior to the fourth anniversary of the Closing Date of any Indemnified Claim and, to the extent Damages relating to such Indemnified Claim are incurred after the fourth anniversary of the Closing Date, (iiy) any a Remedial Action has been commenced, or written notice that threatens or seeks to compel Remedial Action or payment for costs of clauses (b) through (j) a Remedial Action by the Indemnified Party or alleges a violation of Section 10.2 ((i) Environmental Law that would constitute an Environmental Liability, is received from a Governmental Authority, on or prior to such fourth anniversary, and (ii)z) the Damages relate to Remedial Actions that arise from the same condition addressed by the initial Remedial Action and all of the Remedial Actions are taken under legal compulsion of an Environmental Law, collectively(B) with respect to a Third Party Claim, “Special Matters”), each Company Member the Indemnified Party shall be severally have received a written assertion of such Third Party Claim from a Person other than an Indemnified Party and not jointly liable for such Company Member’s Pro Rata Share shall have notified the Seller of any Damages resulting therefrom, provided that the aggregate liability for Indemnified Claim arising from the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members Third Party Claim pursuant to Section 2.3.
11.03(a) on or prior to the fourth anniversary of the Closing Date, and the Damages relate to the matters described in the written assertion of such Third Party Claim, and (cC) Subject with respect to Section 10.4(dmatters not covered by the foregoing clauses (A) or (B), in no event the Indemnifying Party shall any Company Member have liability pursuant only be responsible for (y) Damages incurred on or prior to this Article 10 in excess the fourth anniversary of the Merger Consideration payable Closing Date and (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceedsz) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in which the aggregate under all Claims that Indemnified Party shall have been incurred, paid notified the Seller of an Indemnified Claim pursuant to Section 11.03(a) on or properly accrued exceed $287,500 (prior to the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess fourth anniversary of the Deductible. No Company Indemnified Party may recover any Damages in respect Closing Date, to the extent but only to the extent of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess 60% of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any such Damages accrued for in respect audited financial statements of the inaccuracy Purchaser or any unaudited financial statements of the Purchaser filed with the SEC, in or breach of any representation or warranty each case that are dated as of any particular date, any materiality, Material Adverse Effect a date on or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein prior to the contrary, for purposes fourth anniversary of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such DamagesClosing Date; provided, however, that none the Seller shall only have liability under Sections 11.02(b)(i) and 11.02(b)(ii) or this Section 11.04 for Damages incurred in excess of the Indemnified Parties shall have amount of any obligation to (i) seek recovery reserves for such matters reflected as a current liability or as a reduction in or reserve against any insurance policies (other than current assets in the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf calculation of the Company MembersFinal Net Working Capital Amount, and provided further that the Seller's maximum aggregate liability under Sections 11.02(b)(i) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(gand 11.02(b)(ii) No Indemnified Party and this Section 11.04 shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything equal to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach)Adjusted Purchase Price.
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Limitations. (a) In Except for representations, warranties and covenants relating to Taxes or any Damages arising from or related to the case of any General Representation ClaimExcluded Tax Liabilities or fraud, each Company Member in no event shall the Seller or the Acquiror be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a11.2(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”11.2(b), as applicable, --------------- --------------- unless and until the aggregate liability amount of all such Damages exceeds $150,000 (the Parent Indemnified Parties "LIABILITY THRESHOLD"), in which case the Seller or the Acquiror, as applicable, shall be liable for all such Damages in excess of the Liability Threshold, and then not for any Damages in excess of the Liability Cap for all claims made under such Section 11.2(a) or Section 11.2(b), as applicable, in --------------- --------------- the aggregate; provided, however, that for purposes of claims made by the Acquiror under Section 11.2(a)(iii), Section 11.2(a)(iv) or Section 11.2(a)(v), -------------------- ----------------------------------------- the Seller shall be capped at liable for all Damages suffered by the General Representation Acquiror without regard to the Liability Threshold or Liability Cap; provided, further, that for purposes of claims made by the Seller under Section 11.2(b)(iii) or -------------------- Section 11.2(b)(iv) or for claims made by the Seller relating to the ------------------- Acquiror's breach of its payment obligations in Section 4.1 or Section 4.2, ----------- ----------- the Acquiror shall be liable for all Damages suffered by the Seller without regard to the Liability Threshold or Liability Cap.
(b) In the case The amount of any Claim Damages recoverable by a party under Section 11.2 shall be reduced by: (i) Section 10.2(athe amount of any insurance proceeds ------------ actually paid to the Indemnified Party or Indemnitee, as applicable, relating to such claim (net cost of recovery) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), and (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that recoveries actually received by the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members Indemnified Party from third parties pursuant to Section 2.3indemnification or otherwise with respect thereto (net of cost of recovery).
(c) Subject to Section 10.4(d)Following the Closing, the indemnification expressly provided in no event shall any Company Member have liability pursuant to this Article 10 in excess XI (except for indemnification claims arising out of ---------- the Merger Consideration payable (inclusive fraud or willful misconduct of either party) shall be the portion sole and exclusive remedy for any breach of representation or warranty by the Holdback Amount and parties hereto under this Agreement or any Related Agreement, except to the Expense Fund Amount withheld from extent such Indemnifying Party’s proceeds) indemnification is held by a court of competent jurisdiction to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Considerationbe ineffective or unenforceable.
(d) Notwithstanding anything herein to the contraryNOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breachTHE INDEMNIFICATION OBLIGATIONS OF THE PARTIES HERETO SHALL NOT EXTEND TO CONSEQUENTIAL OR PUNITIVE DAMAGES.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Kv Pharmaceutical Co /De/)
Limitations. Notwithstanding any other provision of this Agreement:
(a) In neither party will be entitled to make a Claim for Indemnification against the case other party for a breach of or inaccuracy in any General Representation Claimrepresentation or warranty, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim representation or warranty in connection with a Fundamental Representation) (a “Parent General Claim”subsection 3.1(cc), unless and until the aggregate liability amount of the Parent Indemnified Parties for all such claims Liabilities and Claims exceeds $500,000, but once the aggregate amount of the Liabilities and Claims exceeds $500,000, the Indemnifying Party shall be capped at obliged to indemnify for the General Representation Cap.full amount of the Liabilities and Claims for which it is obliged to indemnify the Indemnified Party pursuant to this Agreement, including the initial $500,000; and
(b) In in the case event that, as a result of a Claim for Indemnification, an Indemnified Party claims on a tax return a currently realizable Tax Benefit, the indemnity payment in respect of such Claim for Indemnification shall be reduced by the amount of the currently realizable Tax Benefit available to the Indemnified Party so that the Indemnified Party is in the same position the Indemnified Party would have been, and not in a better position or a worse position than the Indemnified Party would have been, on an after tax basis in the absence of the events or circumstances that give rise to the Claim. For the purposes of this Section, a “Tax Benefit” means an amount by which the liability for taxes of the Indemnified Party (or consolidated group of corporations including the Indemnified Party) is reduced or becomes entitled to a refund in respect of Taxes, minus any liability for Taxes arising from the right to receive such indemnity payment. Where the Indemnified Party (or consolidated group of corporations including the Indemnified Party) has other losses, deductions, credits or items available to it, the Tax Benefit from any losses, deductions, credits or items relating to the Claim under (i) Section 10.2(a) with respect for Indemnification shall be deemed to be realized only after the utilization of such other losses, deductions, credits or items. For purposes of this sub-section, a Tax Benefit is “currently realizable” to the extent it can be reasonably anticipated that such Tax Benefit will be realized in the current taxable period or year or in any Fundamental Representation or any certifications made tax return with respect thereto pursuant (including through a carryback to Section 8.2(a)a prior taxable period) or in any taxable period or year prior to the date of the Claim for Indemnification. If there is a determination disallowing the Tax Benefit, (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member the Indemnifying Party shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining for the amount of any Damages related reduction previously allowed or made to the Indemnifying Party in respect the calculation of the inaccuracy in or breach all Claims for Indemnification pursuant to this section, regardless of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained time limitations set out in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled the following limitations shall apply to recover exemplary or punitive damages indemnification claims under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).Agreement:
(i) The rights no individual claim (or series of related claims) for indemnification under Sections 7.1(a) or 7.2(a) (other than with respect to indemnificationthe representations and warranties contained in Sections 2.7, compensation 2.8, 2.21, or reimbursement set forth 3.6) shall be valid and assertable unless it is (or they are) for an amount in this Agreement excess of $75,000;
(ii) the aggregate liability of the Seller Indemnifying Parties with respect to the indemnification of any claims pursuant to Sections 7.1(a) (other than with respect to the representations and warranties contained in Sections 2.7, 2.8, or 2.21) shall not exceed an amount equal to $1,200,000 (exclusive of reasonable costs and expenses, including attorney fees); and
(iii) the aggregate liability of the Buyer with respect to the indemnification of any claims pursuant to Section 7.2(a) (other than with respect to the representations and warranties contained in Section 3.6) shall not exceed an amount equal to $1,200,000 (exclusive of reasonable costs and expenses, including attorney fees); and
(iv) the amount of any Damages for which a Party is entitled to indemnification as provided under this Article VII shall be affected calculated net of any accruals, reserves or provisions therefor reflected in the Most Recent Balance Sheet.
(b) In no event shall any Indemnifying Party be responsible or liable for any Damages or other amounts under this Article VII that are consequential, in the nature of lost profits, diminution in the value of property, special or punitive or otherwise not actual damages, other than such Damages or other amounts that are components of judgment awards against an Indemnified Party in actions by third parties to the extent that any investigation conducted such judgment award is subject to indemnification pursuant to this Article VII. Each Party shall (and shall cause its Affiliates to) use reasonable commercial efforts to pursue all legal rights and remedies available in order to minimize the Damages for which indemnification is provided to it under this Article VII.
(c) The amount of Damages recoverable by Parent, or an Indemnified Party under this Article VII with respect to an indemnity claim shall be reduced by the amount of any knowledge acquired payment received by such Indemnified Party (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Datean Affiliate thereof), with respect to the accuracy Damages to which such indemnity claim relates, from an insurance carrier. An Indemnified Party shall use reasonable commercial efforts to pursue, and to cause its Affiliates to pursue, all insurance claims to which it may be entitled in connection with any Damages it incurs, and the Parties shall cooperate with each other in pursuing insurance claims with respect to any Damages or inaccuracy ofany indemnification obligations with respect to Damages. If an Indemnified Party (or an Affiliate) receives any insurance payment in connection with any claim for Damages for which it has already received an indemnification payment from the Indemnifying Party, it shall pay to the Indemnifying Party, within 30 days of receiving such insurance payment, an amount equal to the excess of (A) the amount previously received by the Indemnified Party under this Article VII with respect to such claim plus the amount of the insurance payments received, over (B) the amount of Damages with respect to such claim which the Indemnified Party has become entitled to receive under this Article VII.
(d) All representations, warranties, covenants and agreements made by any Seller in this Agreement or in any other Transaction Document and Buyer’s right to indemnification, reimbursement or recovery pursuant to this Agreement based thereon shall not be affected or deemed waived by (i) any investigation made by or on behalf of the Buyer (whether before, on or after the date hereof or before, on or after the Closing Date), (ii) knowledge capable of being obtained as a result of such investigation or otherwise, or compliance with(iii) the Buyer’s participation in the preparation of the schedules pursuant to this Agreement.
(e) Except with respect to claims for equitable relief, including specific performance, or fraud perpetuated with respect to breaches of any representation, warranty, covenant, representation or agreement or obligation contained in this Agreement or the existence Ancillary Agreements, the rights of facts the Indemnified Parties under this Article VII shall be the sole and circumstances exclusive remedies of the Indemnified Parties and their respective Affiliates with respect to claims covered by Section 7.1, Section 7.2 or otherwise relating to the transactions that provide are the basis for a Claim hereundersubject of this Agreement. Without limiting the generality of the foregoing, in no event shall any Party, its successors or permitted assigns be entitled to claim or seek rescission of the transactions consummated by this Agreement.
Appears in 1 contract
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement:
(a) The indemnities herein are intended solely for the benefit of the Persons expressly identified in this ARTICLE VII (and their permitted successors and assigns) and are in no way intended to, under no circumstances will nor shall they, constitute an agreement for the benefit of, or be enforceable by, any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach)other Person.
(ib) Payments by an Indemnifying Party under this ARTICLE VII in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be received by the Indemnified Party in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses prior to seeking indemnification under this Agreement.
(c) Payments by an Indemnifying Party pursuant to this ARTICLE VII in respect of any Loss shall be reduced by an amount equal to any Tax benefit realized or reasonably expected to be realized as a result of such Loss by the Indemnified Party.
(d) In no event shall any Indemnifying Party be liable to an Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of profits, 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.
(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 circumstances 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. Each Indemnified Party shall use its reasonable efforts not to pay or accrue any such Losses until it has provided the Indemnifying Party with prior written notice and the reasonable opportunity to defend, address, mediate, resolve, or otherwise mitigate any such potential Losses.
(f) The rights to indemnificationindemnities herein are further subject to, compensation or reimbursement set forth in and limited by, the other terms and provisions of this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderARTICLE VII.
Appears in 1 contract
Samples: Asset Purchase Agreement (Continental Materials Corp)
Limitations. (aA) In the case of Indemnifying Party shall not be obligated to pay for any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) Loss or Section 10.3(c) Damage under this Article 9 (other than for Third-Party Claims) until the amount of such Loss or Damage for that claim exceeds a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d)threshold, in no event shall any Company Member have liability pursuant to this Article 10 in excess the aggregate, of the Merger Consideration payable one-hundred thousand Euro (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”€ 100,000), in which case event Indemnifying Party shall pay or be liable for all such Loss or Damage from the Parent Indemnified Parties may recover all Damages in excess of the Deductiblefirst Euro. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages The Threshold shall be adjusted annually on January 1 to compensate for inflation as reflected in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregardedInflation Index.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(hB) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnifying Party shall not be obligated to indemnify, defend, or hold harmless Indemnified Party against any Indemnification Claim pursuant to Article 9.2. (whether a direct claim or a Third-Party Claim) if such Indemnification Claim or corresponding Loss or Damage arises out of or results from Indemnified Party’s Gross Negligence or Willful Misconduct.
(C) Except for Claims under the Environmental Agreement, the Indemnified Party must submit to the Indemnifying Party any claim pursuant to Article 9.2. (whether a direct claim or a Third-Party Claim) within three (3) years after the date on which the Indemnified Party had or should have had knowledge of any Loss or Damage, Third-Party Claim, or discovery of facts or circumstances upon which Indemnified Party could base a claim under Article 9.2.
(D) For the avoidance of doubt, Indemnified Party must make a claim under Article 9.2. within such three (3) year period, after which time, the Indemnified Party waives any such Indemnification Claim, and that Indemnification Claim shall not be entitled brought or initiated by Indemnified Party against Indemnifying Party thereafter.
(E) Without prejudice to recover exemplary anything to the contrary in the Agreement, a Party’s total liability to the other for any claim arising out of or punitive damages under this Article 10 in connection with the Agreement including without limitation for breach of contract, breach of warranty, breach of statutory duty, or tort, shall not exceed the price of the relevant quantity of the SUMF Item if delivered (except in case of supply of utilities, materials) or the price of the relevant service (in case of supply of services, facilities) if performed or if liability arises from a failure to deliver or to take delivery or to perform, the price of the relevant quantity of the SUMF Item had it been delivered (in case of supply of utilities, materials) or the price of the relevant service had it been performed (in case of supply of services, facilities). This limitation shall not apply in respect of liabilities resulting from Third-Party Claims, or from cases of fraud, Willful Misconduct and/or Gross Negligence.
(F) With respect to any SUMF Items the provision of which requires Supplier to procure utilities from a Third-Party as indicated in the relevant Schedules or Sub-schedules, Supplier’s liability to Purchaser for any Loss or Damage incurred due to Supplier’s failure to provide such SUMF Item, when and to the extent such punitive damages are awarded to a third party failure is due in whole or in part to the case failure of fraudthe Third-Party utility provider to perform, intentional misrepresentation will be limited to the amount Supplier is contractually, or willful breach).
(i) The rights statutorily, permitted to indemnificationrecover from such Third-Party utility provider, compensation or reimbursement set forth in this Agreement without regard to the amount, if any, actually recovered by Supplier from such Third-Party utility provider. This limitation of liability shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable apply in respect of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.liabilities resulting from Third-Party Claims under Article 9.2
Appears in 1 contract
Samples: Moerdijk Vad Site Services, Utilities, Materials and Facilities Agreement (Hexion Inc.)
Limitations. (a) In Notwithstanding anything to the case contrary in this Agreement, the provisions of any General Representation Claim, each Company Member this Section 11.03 shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that operate to limit the aggregate liability of the Company Members for all General Representation Claims shall be capped at indemnifying party under Section 11.01 or 11.02 (the General Representation Cap. In the case "Indemnifying Party") in respect of any claim by the Purchaser Indemnified Party or Seller Indemnified Party (the "Indemnified Party") for any breach of the representations and warranties in Article IV or V or otherwise under or pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Capthis Agreement.
(b) In the case No claim for breach of any Claim under (i) Section 10.2(a) with respect a representation or warranty shall accrue to any Fundamental Representation or any certifications made with Indemnified Party against the Indemnifying Party under this Agreement unless and except to the extent that the total liability of the Indemnifying Party in respect thereto pursuant to Section 8.2(a)of all such claims exceeds in aggregate SEK 400,000, (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member whereupon the Indemnified Party shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members entitled to claim indemnification for all Claims damages suffered (including the initial SEK 400,000) by such Indemnified Party and for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3which such indemnification is available under this Article XI.
(c) Subject No claim for breach of a representation or warranty shall be made unless written notice thereof shall have been given by the Indemnified Party to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein The Indemnifying Party shall not be liable under this Agreement in respect of any claim of a breach of this Agreement:
(i) based on a liability that is contingent only unless and until such contingent liability becomes an actual liability and is due and payable; provided, however, if an Indemnified Party gives notice to the contraryIndemnifying Party of such contingent liability, there shall the limitations period set forth in Section 11.03(c) related to such claim will be no maximum tolled until the time when such contingent liability becomes an actual liability and is due and payable; or
(ii) to the extent that allowance, provision or reserve was made in the Financial Statements for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breachthe matter giving rise to the claim.
(e) No Parent Indemnified Party claim may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate be made more than once under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages this Agreement in respect of the inaccuracy same loss.
(f) The total aggregate liability of the Seller and SIFO for breach of any of the provisions in or this Agreement shall not exceed SEK 32,000,000.
(g) Any breach of any representation or warranty as or any other breach of this Agreement by an Indemnifying Party shall give rise only to a claim by an Indemnified Party for compensation on a krona-to krona basis for any damages and shall not entitle the Indemnified Party to rescind this Agreement in whole or in part. No claim shall be made against any Indemnifying Party in respect of any particular datewarranty, any materialityrepresentation, Material Adverse Effect indemnity, covenant, undertaking or similar qualification limiting the scope otherwise arising out of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; providedthe transactions contemplated hereby unless the same is expressly contained in this Agreement. The parties confirm that they have not relied and will not rely on any warranty, howeverrepresentation, indemnity, covenant or undertaking of any Person that none of the Indemnified Parties is not expressly contained in this Agreement. No claim shall have any obligation to (i) seek recovery be made against any insurance policies party in respect of any damages not covered by this Article XI by invoking any statute (other than including the Tail PolicySwedish Sale of Goods Act (Swe: Koplag (1990:931) as amended) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3legal principle.
(h) Notwithstanding anything to the contrary A breach of any representation, warranty or other provision contained in this Agreement, under no circumstances will any Agreement that is capable of being remedied shall not entitle the Indemnified Party be entitled to recover exemplary or punitive monetary damages under this Article 10 (except to unless the extent Indemnifying Party is given written notice of such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).breach and such breach is not
(i) The rights Where the Indemnified Party is entitled (whether by reason of payment, discount or otherwise) to indemnificationrecover from some third party any sum in respect of taxation or other damage or liability that is the subject of a claim against the Indemnifying Party under this Agreement, compensation or reimbursement set forth the Indemnified Party shall, if so required by the Indemnifying Party and at the Indemnifying Party's cost and expense and on the Indemnifying Party providing proper indemnities in respect of all costs and expenses to be incurred, take all steps and cause its Affiliates to take all steps as the Indemnifying Party may require to enforce such recovery and shall keep the Indemnifying Party informed of the progress of any action taken.
(j) None of the limitations included in this Agreement shall not be affected by Section 11.03 will apply to breaches of Sections 10.01 through 10.03.
(k) Purchaser covenants and agrees, that, after the Closing Date, notwithstanding any investigation conducted by Parent, breach of any representation or warranty or any knowledge other breach of this Agreement by SIFO or Seller, Purchaser will not take any action that interferes with the peaceful and quiet possession and enjoyment of the Media Metrix Stock by Seller, SIFO or an Affiliate of SIFO that has acquired the Media Metrix Stock in compliance with the terms of this Agreement; Purchaser hereby waives (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance withgreatest extent permitted by applicable law, any representationand all remedies and rights it may have, warrantyby statute or otherwise, covenant, agreement or obligation or enforceable against the existence of facts and circumstances that provide the basis for a Claim hereunderMedia Metrix Stock.
Appears in 1 contract
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there no claim for indemnification pursuant to this Article 9 may be made unless the applicable Party or Indemnified Party gives notice thereof to the Indemnifying Party prior to the expiration of the applicable representation, warranty or covenant, as provided in Section 9.1; provided that the applicable representation, warranty and covenant shall survive for a period contemporaneous with the resolution of a claim for which a Party has properly asserted a claim. The amount of Losses recoverable by an Indemnified Party under this Article 9 with respect to an indemnity claim shall be no maximum liability reduced by (i) any proceeds actually received by such Person, as compensation for any Company Member the Losses to which such indemnity claim relates, from a third party (excluding the Indemnifying Party or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
its Affiliates) and (eii) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages Tax savings actually realized by such Person based on the Losses to which such indemnity claim relates and increased by the amount of any Tax detriment actually realized by such Person based on the Losses to which such indemnity claim relates. In any case where an Indemnified Party recovers from third parties any amount in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection a matter with respect to which an Indemnifying Party has indemnified such Party pursuant to this Article 9, such Indemnified Party shall promptly pay over to the Indemnifying Party the amount so recovered, but not in excess of any particular matter. Each of Parent and Representative (amount previously so paid by the Indemnifying Party to or on behalf of the Company MembersIndemnified Party in respect of such matter.
(b) shall use commercially reasonable efforts Each of the Parties agrees that, to mitigate Damages the fullest extent permitted by applicable Law, except in cases of fraud, the other Party may seek recourse subject to and in accordance with this Article 9 only against the common law doctrine other Party, and the respective directors, officers, employees, Affiliates, controlling Persons, agents and representatives of mitigationthe other Party shall not have any personal liability or responsibility whatsoever to the claiming Party or any of its directors, officers, employees, Affiliates, controlling Persons, agents or representatives on any basis (including in contract or tort, under federal or state securities laws or otherwise). Each Party hereby releases the other Party’s and its Affiliates’ respective directors, officers, employees, Affiliates, controlling Persons, agents and representatives from any such liability or responsibility.
(gc) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR MULTIPLE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) UNDER THIS AGREEMENT EXCEPT TO THE EXTENT SUCH DAMAGES SHALL BE PAYABLE TO A THIRD PARTY.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Azur Pharma Public LTD Co)
Limitations. (ai) In Notwithstanding anything in this Agreement to the case contrary, (A) the Company and the Seller Members will not be liable to any Buyer Party for any Losses under Section 6.2(a)(i) (1) unless and until the aggregate amount of any General Representation Claimthe Losses relating to all such claims exceeds three hundred thousand dollars ($300,000) (the “Threshold”), each at which time the Company Member and the Seller Members shall be severally and not jointly liable for the amount of all such Losses from the first dollar in accordance with the terms hereof; provided, however, that (x) the Company Member’s Pro Rata Share and the Seller Members shall not have any liability for any claim (or series of related claims) that involves Losses of less than $5,000 (the “De Minimis Amount”) and (y) any Damages resulting therefromclaim (or series of related claims) that involves Losses of less than the De Minimis Amount shall not apply towards the satisfaction of the Threshold or the Cap (as defined herein), provided and (2) to the extent that the aggregate liability of the Company and the Seller Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(asuch Losses exceeds two million seven hundred seventy-five thousand dollars ($2,775,000) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “DeductibleCap”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties Threshold, the Cap or the De Minimis Amount shall have any obligation apply to the Losses resulting from breaches of the Buyer Fundamental Representations, and (iB) seek recovery against any insurance policies (other than the Tail Policy) or aggregate liability of each Seller Member under this Section 6.2 shall not exceed the amount of the Purchase Price actually received by such Seller Member.
(ii) obtain No Seller Member shall be liable for the breach of any representation, warranty or covenant made by any other Seller Member.
(iii) No Buyer Party shall be entitled to recover or make a claim for any amounts in respect of consequential, incidental or indirect damages, lost profits or diminutions in value, in each case, suffered by such Buyer Party.
(iv) In determining the liability of a Party for indemnification pursuant to this Article 6, no Loss shall be deemed to have been sustained to the extent of any proceeds previously received by such Party from any insurance coverage recovery (net of all out-of-pocket costs directly related to such recovery) or other recovery from a third party (net of all out-of-pocket costs directly related to such recovery). If an amount is actually recovered from an insurance carrier or other third party protection with respect after a payment has been made by the Indemnifying Party pursuant to any particular matter. Each of Parent and Representative this Article 6, then the party receiving such amount shall promptly remit such amount to the Indemnifying Party.
(on behalf of the Company Membersv) shall The Buyer Parties will use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine any Losses upon becoming aware of mitigation.
(g) No Indemnified Party shall any event, fact or circumstance that would reasonably be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parentexpected to, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date)does, with respect give rise to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereundersuch Loss.
Appears in 1 contract
Limitations. (a) In The indemnification provided for in Section 14.1 and 14.2 will be subject to the case following limitations:
14.3.1 No Seller Party will have any obligation to indemnify any Purchaser Indemnitee from and against any Losses resulting from, arising out of, relating to, in the nature of, or caused by the breach of any General Representation Claimrepresentation, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share warranty or covenant of any Damages resulting therefrom, provided that Seller Party contained in this Agreement until the Purchaser Indemnitees have suffered Losses by reason of all breaches by Seller Parties in excess of an aggregate liability deductible of *** (the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General ClaimBasket”), whereupon the aggregate liability of the Parent Indemnified Parties Purchaser Indemnitees will be entitled to indemnification thereunder for all such claims shall be capped at Losses (back to the General Representation Capfirst dollar of the Basket).
(b) In the case of 14.3.2 Neither Purchaser nor Parent will have any Claim under (i) Section 10.2(a) with respect obligation to indemnify any Fundamental Representation or Seller Indemnitee from and against any certifications made with respect thereto pursuant to Section 8.2(a)Losses resulting from, (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii)arising out of, collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d)relating to, in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of nature of, or caused by the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party Purchaser or Parent Indemnified Party, as applicable, contained in connection with this Agreement until the Seller Indemnitees have suffered Losses by reason of all such Damages; provided, however, that none breaches in excess of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than Basket, whereupon the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall Seller Indemnitees will be entitled to double recovery indemnification thereunder for any indemnifiable Damages even though all such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
Losses (h) Notwithstanding anything back to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to first dollar of the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breachBasket).
(i) 14.3.3 The rights to indemnification, compensation or reimbursement set forth parties acknowledge and agree that the foregoing indemnification provisions in this Section 14 will be the sole and exclusive remedies of the Purchaser Indemnitees and the Seller Indemnitees, and each party’s indemnification obligations under this Agreement shall not will be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect limited to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.an amount equal to ***. ***
Appears in 1 contract
Samples: Asset Purchase Agreement (Lecg Corp)
Limitations. (a) In the case of Notwithstanding any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not or in any other Transaction Document, (a) in no event will any Seller Indemnified Party or Purchaser Indemnified Party have any liability for, or Losses be affected deemed to include, any special, indirect, incidental, multiple, consequential, punitive, or exemplary damages, loss of use, business interruption, or loss of business opportunity (it being agreed that “lost profits” or similar losses up to the Cap Amount are regarded as direct damages), whether in contract or tort, regardless of whether the other Party in advised, has reason to know, or in fact knows of the possibility of such damages suffered or incurred by any investigation conducted by Parent, such Seller Indemnified Party or Purchaser Indemnified Party in connection with this Agreement any of the other Transaction Documents or any knowledge acquired of the transactions contemplated hereby or thereby, other than any such damages of Losses resulting by any breach of Section 5.8.4 (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing DateSpecific Enforcement), (b) Seller will not have any liability under Section 7.2 (Indemnification by Seller) in excess of the Cap Amount based on a Cap Multiplier of [***]% (the “Indemnification Cap”), and (c) except with respect to breaches of Section 5.8 (Confidentiality), Purchaser will not have any liability under Section 7.1 (Indemnification by Purchaser) in excess of an amount equal to the accuracy or inaccuracy ofaggregate amount of Purchased Receivables actually received by Purchaser at such time. Notwithstanding the foregoing, the limitations set forth in this Section 7.4 (Limitations) will not apply to any claim for indemnification hereunder in the case of actual fraud, intentional misrepresentation, intentional wrongful acts, intentional breach, bad faith, or compliance withwillful misconduct. The Parties acknowledge and agree that (a) Purchaser’s Losses, if any, for any representationindemnifiable events under this Agreement will typically include Losses for Purchased Receivables that Purchaser was entitled to receive in respect of its ownership of the Purchased Receivables but did not receive timely or at all due to such indemnifiable event and (b) subject to this Section 7.4 (Limitations), warrantyPurchaser will be entitled to make indemnification claims for all such missing or delayed Purchased Receivables that Purchaser was entitled to receive in respect of its ownership of the Purchased Receivables as Losses hereunder (which claims will be reviewed and assessed by the Parties in accordance with the procedures set forth in this Article 7 (Indemnification)). This Article 7 (Indemnification) shall not apply with respect to Taxes, covenant, agreement or obligation or the existence of facts and circumstances other than any Taxes that provide the basis for a Claim hereunderrepresent Losses arising from any non-Tax claim.
Appears in 1 contract
Limitations. (a) In Notwithstanding the case foregoing in this Article VII, the Parties shall not be liable under this Article VII for any Losses unless and until the aggregate amount of any General Representation ClaimLosses incurred or suffered by the Indemnified Party for which the Indemnified Party is entitled to recovery under this Agreement exceeds an aggregate of Fifty Thousand Dollars ($50,000), each Company Member at which point the Indemnifying Party shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation CapLosses.
(b) In The aggregate amount of all Losses for which the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto Indemnified Party shall be liable pursuant to Section 8.2(a)7.1 or Section 7.2, as the case may be, shall not exceed One Million Dollars (ii) any of clauses (b) through (j) of Section 10.2 ((i$1,000,000) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant subject to Section 2.37.7 below.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Payments by an Indemnifying Party’s proceeds) to such Company Member Party pursuant to Section 2.37.2 or Section 7.3 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be received by the Indemnified Party in respect of any such claim. Subject The Indemnified Party shall use its commercially reasonable efforts to Section 10.4(d)recover under insurance policies or indemnity, in no event shall contribution or other similar agreements for any Parent Indemnifying Party have liability pursuant Losses prior to seeking indemnification under this Article 10 in excess of the Merger ConsiderationAgreement.
(d) Notwithstanding anything herein 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 contrarybreach or alleged breach of this Agreement, there shall be no maximum liability for or diminution of value or any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge damages based on any type of fraud, intentional misrepresentation or willful breachmultiple.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No 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 entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 reasonably expected to, or Section 10.3.
(h) Notwithstanding anything does, give rise thereto, including incurring costs only to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled minimum extent necessary to recover exemplary or punitive damages under this Article 10 (except remedy the breach that gives rise to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach)Loss.
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Limitations. (a) In No claim may be made against an Indemnifying Party pursuant to its indemnification obligations set forth in Section 10.2 or 10.3 with respect to any individual item of damage unless and until (i) the case amount of damages actually incurred by Claimant for any General Representation Claimindividual matter exceeds $5,000 and (ii) the aggregate of all such damages actually incurred by the Claimant exceeds $200,000 (the "Threshold Amount") and, each Company Member at such time as the Claimant's damages exceed in the aggregate the Threshold Amount, the Claimant shall be severally and not jointly liable entitled to indemnification for the entire amount of such Company Member’s Pro Rata Share damages in excess of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap$100,000. In the case of any claim pursuant for indemnification made by a Claimant to an Indemnifying Party in which the Claimant asserts for the first time that the Threshold Amount has been or will be exceeded after or upon satisfaction of the claim for which the Claimant seeks indemnification, the Claimant shall set forth in reasonable detail the damages, including the basis therefor, which have exceeded or which, together with the claim being made, will exceed the Threshold Amount. The Indemnifying Party's obligation to indemnify the Claimant and hold it harmless under Section 10.3(a10.2 or 10.3 shall in no event exceed in the aggregate $5,000,000. Notwithstanding the foregoing, the limitations set forth in this Section 10.5(a) or Section shall not apply to claims for indemnification under Sections 3.13, 3.14, 3.20, 4.4, 10.2(b), 10.2(c), 10.2(d), 10.3(b) and 10.3(c) (other than a claim hereof or claims for fraud, including claims for costs and expenses incurred in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all enforcing such claims shall be capped at the General Representation Capclaims.
(b) In the case For purposes of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach damages incurred by a Claimant, such damages shall be net of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting insurance payment actually received by the scope of such representation or warranty Claimant in compensation for the same damages for which indemnification is sought and shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining reduced by the amount of Damages incurred under Section 10.2 or Section 10.3, there shall any tax benefits to be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to realized by the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), Claimant with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide matter which was the basis for a Claim hereunderthe damages for which indemnification is sought.
Appears in 1 contract
Samples: Asset Purchase Agreement (Paxson Communications Corp)
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will the indemnification provided in Sections 10.2, 10.4 and 10.5 is subject to the following limitations:
(i) No demand for indemnification shall be made after the expiration of the applicable survival period set forth in Section 10.1 for the representation or warranty or covenant to which such demand relates; provided, however, that demands for indemnification made prior to the expiration of such period shall survive until such claim for indemnification is finally adjudicated and resolved.
(ii) No party hereto (nor, in each case, such party’s officers, directors, employees, agents, representatives and Affiliates) shall be liable to another party in respect of any indemnification hereunder pursuant to Sections 10.2, 10.4, or 10.5 if the Losses associated with any individual claim are less than $25,000 (the “De Minimis Claim Amount”), it being understood that any such individual claim for amounts less than the De Minimis Claim Amount shall be ignored in determining whether the Deductible has been exceeded and thereafter; and (B) unless and until the aggregate amount (without duplication) of Losses of the party seeking indemnification exceeds an amount equal to one-half of a percent (0.5%) of the sum of the Net Closing Merger Consideration and the Equityholder Representative Fund (the “Deductible”), at which point the Indemnified Party shall be entitled to be indemnified from and against all such Losses in excess of the Deductible.
(iii) Any payments required to be made to a Parent Indemnitee pursuant to this Agreement shall be made from each Company Table of Contents Equityholder in accordance with such Company Equityholder’s Pro Rata Share (except for payments to which a Parent Indemnitee is entitled pursuant to Section 10.5, which shall be borne by the Principal Stockholder alone), by wire transfer of immediately available funds for credit to the recipient, at a bank account designated by the recipient in writing. Notwithstanding anything to the contrary contained herein, (A) in no event shall any Company Equityholder (including the Principal Stockholder) be liable to any Parent Indemnitee for Losses hereunder in excess of such Company Equityholder’s Pro Rata Share of an amount equal to one percent (1%) of the sum of the Net Closing Merger Consideration and the Equityholder Representative Fund, and (B) in no event shall Parent or the Surviving Corporation (separately or together) be liable to the Equityholder Indemnitees for Losses hereunder in excess of one percent (1%) of the sum of the Net Closing Merger Consideration and the Equityholder Representative Fund (which shall not limit Parent’s obligations under Sections 2.7, 2.8(d) or 2.9).
(iv) The amount of Losses that any Parent Indemnitee shall be entitled to recover exemplary shall be calculated net of any insurance proceeds or punitive damages any indemnity, contribution or other similar payment actually recovered (net of costs of enforcement, deductibles and retro-premium adjustments) by the Parent Indemnitee from any third party with respect to such Losses. Prior to pursuing a claim in respect of any Losses hereunder (other than submitting a claim notice in accordance with Section 10.6(a)), the Parent Indemnitees shall use reasonable best efforts to seek full recovery under this Article 10 (except any insurance policies of the Company or any of its Subsidiaries in existence prior to the extent Effective Time. In the event that any insurance or other recovery is made by any Parent Indemnitee with respect to any Loss for which such punitive damages are awarded Parent Indemnitee has been indemnified hereunder, then a refund equal to the aggregate amount of the insurance or other recovery (net of costs of enforcement, deductibles and retro-premium adjustments) shall be made promptly by such Parent Indemnitee to the Equityholder Representative (on behalf of the Company Equityholders on a third party or in the case of fraud, intentional misrepresentation or willful breachPro Rata Share basis).
(iv) The rights amount of Losses that any Person shall be entitled to indemnificationrecover under any right of indemnification under this Article X shall be calculated net of any Tax benefits actually recognized by such Person on account of such Losses in the same Tax year of such Losses.
(vi) In no event shall an Indemnifying Party be required to indemnify any Parent Indemnitee or Equityholder Indemnitee, compensation as applicable, in respect of any Losses for which such Indemnifying Party has previously made payment for Table of Contents such Losses to such Parent Indemnitee or reimbursement set forth in Equityholder Indemnitee, as applicable, pursuant to this Article X.
(b) Any indemnity payment made under this Agreement shall not be affected treated by the Parties for Tax purposes as an adjustment to the Merger Consideration.
(c) Notwithstanding anything to the contrary contained herein and without limiting the Parent Indemnitees’ rights under this Article X, each Parent Indemnitee shall use reasonable best efforts to make any investigation conducted by Parent, or any knowledge acquired demand for indemnification under this Article X prior to the later to occur of (or capable of being acquiredi) at any time twelve (whether before or 12) months after the Agreement Closing Date or the Closing Date)and (ii) March 15, with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder2017.
Appears in 1 contract
Samples: Merger Agreement (RPX Corp)
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable Any claim for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of indemnification with respect to the Company Members for all General Representation Claims Indemnities shall be capped at twenty percent (20%) of the General Representation Cap. In Total Consideration, except in the case of (i) Fraud; or (ii) any claim pursuant failure of any of the Fundamental Representations to be true and correct as set forth in Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”6.2(a), the aggregate liability of the Parent Indemnified Parties for all such claims which shall be capped at the General Representation Cap.
fifty percent (b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j50%) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Total Consideration actually paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3Stockholders. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover receive any Damages indemnification in respect of General any claim for indemnification with respect to the Company Representation Claims Indemnities (except in the case of (i) Fraud; or (ii) any failure of any of the Fundamental Representations to be true and correct as set forth in Section 6.2(a)) unless and until Damages in the aggregate under all Claims such claims that have been incurred, paid or properly accrued exceed $287,500 138,750 (the “Deductible”), in which case the Parent Indemnified Parties may recover all make claims for indemnification for Damages in excess of the Deductible. Any breach of a representation or warranty that does not have Damages in excess of $5,000 will not count toward the calculation of the Deductible. Notwithstanding the foregoing, Damages arising from breaches of a representation or warranty arising from or related to substantially similar facts or circumstances will be aggregated for the purpose of calculating the threshold described above.
(b) Each Company Indemnifying Party shall be liable for their Pro Rata Share of any Damages in connection with the matters set forth in Section 6.2, subject to the limitations set forth in subsection (a) of this Section 6.4.
(c) Each Company Indemnifying Party shall be solely and fully liable for any breach of Sections 6.2(a)(ii) and 6.2(b)(ii) by such Company Indemnifying Party, and each Company Indemnifying Party shall be solely and fully liable for any Fraud by such Company Indemnifying Party, and in each case no other Company Stockholder shall have any liability therefor. In no event will any Company Stockholder have any liability in an amount that exceeds the Total Consideration received by it.
(d) With respect to all Damages owed by the Company Indemnifying Parties pursuant to this Article 6, each Company Indemnifying Party shall have the option of satisfying its allocable portion of the amount due pursuant to this Article 6 by (i) payment in cash to the Parent Indemnified Party, (ii) forfeiture of a number of shares of Parent Stock necessary to satisfy the amount due pursuant to this Article 6, with each share of Parent Stock being valued at the Parent Stock Price, or (iii) any combination of cash and forfeiture of Parent Stock; provided, however, in the event that a Company Indemnifying Party elects to satisfy any portion of Damages due pursuant to this Article 6 by payment of cash to the Parent Indemnified Party and such Company Indemnifying Party fails to pay in cash any Damages due and payable by such Company Indemnifying Party within five Business Days after the final determination of the amount due and the Parent Indemnified Party’s written demand therefor has been properly delivered to the Company Stockholder, the Parent Indemnified Party may, in its sole discretion, continue to pursue cash recovery or recover such Damages by cancellation of a number of shares of Parent Stock then held by such Company Indemnifying Party equal to the Damages then due and payable pursuant to this Article 6, with the per share value of such Parent Stock equal to the Parent Stock Price.
(e) Any claim for indemnification with respect to the Parent Representation Indemnities shall be capped at twenty percent (20%) of the Total Consideration, except in the case of (i) Fraud, which shall be capped at the Total Consideration; or (ii) any failure of any Fundamental Representations to be true and correct as set forth in Section 6.3(a), which shall be capped at fifty percent (50%) of the Total Consideration paid or payable to the Company Stockholders. No Company Indemnified Party may recover receive any Damages indemnification in respect of any claim for indemnification with respect to the Parent General Claims Representation Indemnities (except in the case of (i) Fraud; or (ii) any failure of any of the Fundamental Representations to be true and correct as set forth in Section 6.3(a)) unless and until Damages in the aggregate under all Claims such claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all make claims for indemnification for Damages in excess of the deductibleDeductible. Any breach of a representation or warranty that does not have Damages in excess of $5,000 will not count toward the calculation of the Deductible. Notwithstanding the foregoing, Damages arising from breaches of a representation or warranty arising from or related to substantially similar facts or circumstances will be aggregated for the purpose of calculating the threshold described above.
(f) In determining whether a breach of a representation or warranty has occurred, occurred and in determining the amount of any Damages in respect of the inaccuracy in or breach failure of any representation or warranty to be true and correct as of any particular date, any materiality, materiality or Material Adverse Effect or similar qualification limiting the scope of Change standard contained in such representation or warranty shall be disregarded.
(fg) Notwithstanding anything herein The amount of any Damages for which indemnification is provided under this Article 6 shall be reduced by any amounts actually recovered by any Indemnified Party under insurance policies, with respect to the contrarysuch Damages (less any costs of collection and increases in premium), for purposes of calculating or determining and (ii) determined by deducting therefrom the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase Tax benefit actually realized in premium associated therewith to the extent paid or payable taxable year such Damage is realized and net of any costs, Taxes and expenses of recovery or collection thereof) actually received the succeeding Taxable year by any Company the Parent Indemnified Party or Parent Indemnified Party, and its Affiliates as applicable, in connection with a result of such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3Losses.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement indemnification set forth in this Agreement based on the representations, warranties, covenants, agreements and obligations set forth herein shall not be affected by any investigation conducted by Parentany Indemnified Party, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, of or compliance with, any such representation, warranty, covenant, agreement or obligation obligation.
(i) Except (a) in the case where a party seeks to obtain specific performance, injunctive relief or other equitable relief, (b) in the existence case of facts Fraud, and circumstances that provide (c) in the basis case of claims by Parent against the Representative for a Claim hereunderbreach of its obligations under this Agreement, the rights of the parties to indemnification pursuant to the provisions of this Article 6 shall be the sole and exclusive remedy for the parties hereto with respect to this Agreement.
(j) Each party will use commercially reasonable efforts to mitigate Damages.
Appears in 1 contract
Samples: Merger Agreement (Gaia, Inc)
Limitations. (a) In Except as otherwise set forth herein, (i) the case aggregate Liability of any General Representation Claim, each Company Member the Indemnifying Securityholders for Damages under this Article VI shall not exceed the Escrow Fund and (ii) no Indemnified Party shall be severally entitled to indemnification pursuant to this Article VI unless and not jointly liable until all Damages hereunder exceed One Hundred Thousand Dollars ($100,000) (the “Threshold Amount”) whereupon the Indemnified Parties shall be entitled to be indemnified only for such Company Member’s Pro Rata Share Damages in excess of any Damages resulting therefrom, the Threshold Amount; provided (A) that the aggregate liability of the Company Members for all General Representation Claims limitations set forth in this Section 6.4 shall be capped at the General Representation Cap. In the case of not apply to any claim pursuant to Section 10.3(a6.2(a) or relating to a breach of, inaccuracy in the representations and warranties set forth in Section 10.3(c2.1 (Organization, Qualification and Corporate Power), Section 2.2 (Capitalization), Section 2.3 (Authorization of Transaction), Section 2.21(d) (other than a claim in connection with a Fundamental RepresentationEmployees), Section 2.29 (Broker’s Fees) claims pursuant to Section 6.2(c), Section 6.2(d), Section 6.2(e), Section 6.2(f) and claims for intentional misrepresentation, willful misconduct or fraud (a collectively, the “Parent General ClaimExcepted Matters”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In Solely for purposes of determining the case amount of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto Damages pursuant to Section 8.2(athis Article VI (but not for purposes of determining whether a breach or inaccuracy has occurred), (ii) any all representations and warranties of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each the Company Member set forth in Article II shall be severally construed as if the terms “material” or “in all material respects” and not jointly liable for such any reference to “Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3Material Adverse Effect” (and variations thereof) were omitted.
(c) Subject Any payments required to Section 10.4(d)be made to an Indemnified Party pursuant to claims for indemnification hereunder with respect to Excepted Matters shall be made first by resort to the Escrow Fund, and second, if the balance of the Escrow Fund is insufficient to satisfy the entire amount of payments to be made to an Indemnified Party in respect of such Excepted Matters, by seeking recourse to each Indemnifying Securityholder, severally and not jointly in accordance with each such Indemnifying Securityholder’s Pro Rata Portion.
(d) All Damages recovered by the Indemnified Parties from the Escrow Fund shall be allocated among the Indemnifying Securityholders in accordance with their Pro Rata Portion. Notwithstanding anything to the contrary herein, except for claims for intentional misrepresentation, willful misconduct or fraud, no event Indemnifying Securityholder shall any Company Member have liability be liable for more than the aggregate amount of Merger Consideration to be paid to such Indemnifying Securityholder (assuming the full amount of Merger Consideration (including all amounts held in the Escrow Fund) is actually paid to such Indemnifying Securityholder) pursuant to this Article 10 in excess Agreement.
(e) Notwithstanding anything to the contrary herein, the aggregate Liability of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event Buyer for Damages hereunder shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of not exceed the Merger Consideration.
(df) Notwithstanding anything herein Except with respect to claims for intentional misrepresentation, willful misconduct or fraud, after the contraryClosing, there the rights of the Indemnified Parties under this Article VI and the Escrow Agreement shall be no maximum liability the exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any breach of, inaccuracy in, nonperformance or noncompliance with such representation, warranty, certification, covenant, agreement or other obligation contained in this Agreement; provided, however nothing herein shall be construed to limit the remedies available to, or the amount of Damages recoverable by, Buyer for breach of any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breachthe Ancillary Agreements by any of the parties thereto other than the Company.
(eg) No Parent Indemnified Party may recover The amount of any Damages in respect of General Representation Claims unless and until Damages in payable by the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining Indemnifying Securityholders pursuant to this Article VI shall be reduced by the amount of any insurance proceeds actually received by the Indemnified Party with respect to the Damages (net of any insurance premium increases or other costs incurred by the Indemnified Party in respect of such insurance proceeds); provided that nothing set forth in this Section 6.4(g) shall require the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of Indemnified Party to make an insurance claim with respect to such representation or warranty shall be disregardedDamages.
(fh) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties No Indemnifying Securityholder shall have any obligation to (i) seek recovery right of contribution against any insurance policies (other than the Tail Policy) Company or (ii) obtain insurance coverage or other third party protection the Surviving Corporation with respect to any particular matter. Each of Parent and Representative (on behalf of breach by the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigationany of its representations, warranties, covenants or agreements.
(gi) No Indemnified Party shall be entitled to double recovery be indemnified for any indemnifiable special, punitive or exemplary Damages even though (collectively, “Special Damages”) unless such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled is required to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded pay Special Damages to a third party or in the which case of fraud, intentional misrepresentation or willful breach).
such Special Damages shall constitute Damages for which such Indemnified Party is entitled to indemnification pursuant to this Article VI. No party hereto shall be obligated to indemnify any other Person with respect to (i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation condition specifically waived in writing by the other party at the Closing or (ii) any Damages if such Damages were included in the calculation of the Merger Consideration pursuant to Section 1.5 or in the calculation of the Estimated Adjusted Working Capital or the existence of facts and circumstances that provide Final Adjusted Working Capital pursuant to Section 1.6 (in each case, to the basis for a Claim hereunderextent so included).
Appears in 1 contract
Samples: Merger Agreement (Red Hat Inc)
Limitations. (a) In the case of any General Representation Claim, each Company Member No party shall be severally and not jointly liable entitled to any recovery for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim Losses (or other claims pursuant to Section 10.3(a6.2(c)) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, unless and in determining until the amount total of any Damages in respect of all Losses (and other claims pursuant to Section 6.2(c)) for the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party Parties or Parent the Purchaser Indemnified PartyParties, as applicable, in connection with under Section 6.2 exceeds $1,000,000, at which time such Damagesparties shall be entitled to recover the aggregate amount of all Losses (and other claims pursuant to Section 6.2(c)), regardless of such threshold; provided, however, that none the aggregate liability for indemnity for breaches of representations or warranties under this Article VI for each of MHR and the Company collectively on the one hand, and the Purchaser, on the other hand, shall not exceed twenty percent (20%) of the Indemnified Parties shall have any obligation to aggregate purchase price actually paid by the Purchaser in respect of Purchased Securities under this Agreement as of the date each such claim for indemnification for Losses (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect claims pursuant to Section 6.2(c)) is made. Notwithstanding anything in the foregoing to the contrary, the limitations contemplated by this Section 6.4 shall not apply to any particular matterclaims for fraud or intentional, criminal or willful misrepresentation or misconduct. Each of Parent and Representative (on behalf It is the intent of the Company Members) shall use commercially reasonable efforts to mitigate Damages parties that the indemnity provisions provided for in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party this Article VI shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable the sole and exclusive remedy of the parties under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or as otherwise provided for in Section 8.12. In furtherance thereof, except as specifically provided in Section 8.12 and in the case of fraudfraud or intentional, intentional criminal or willful misrepresentation or willful breach).
misconduct, (i) The rights the parties’ sole and exclusive remedy under this Agreement shall be to indemnification, compensation or reimbursement seek indemnification as set forth in this Agreement shall not be affected by Article VI, and (ii) any investigation conducted by Parent, or any knowledge acquired claim for Losses (or capable other claims pursuant to Section 6.2(c)) against any party for any breach of being acquired) at this Agreement or in connection with any time (whether before or after of the Agreement Date or the Closing Date), with respect Transactions contemplated hereby will be made solely pursuant to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderthis Article VI.
Appears in 1 contract
Samples: Series a Convertible Preferred Unit Purchase Agreement (Magnum Hunter Resources Corp)
Limitations. (a) In The Buyer shall not be entitled to indemnification under this Article IX with respect to any matter to the case extent that such matter was (i) included as a Current Liability in the calculation of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim Closing Date Adjusted Net Working Capital as finally determined pursuant to Section 10.3(a2.2(b) or Section 10.3(c(ii) (other than a claim included in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation CapClosing Date Indebtedness or Closing Date Sale Transaction Expenses.
(b) In To the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”)extent required by Law, each Company Member Indemnified Party shall be severally and not jointly liable for use its commercially reasonable efforts to mitigate any Losses sustained or incurred by such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3Indemnified Party.
(c) Subject to Section 10.4(d), The indemnities herein are intended solely for the benefit of the Persons expressly identified in this Article IX (and their permitted successors and assigns) and are in no event way intended to, nor shall they, constitute an agreement for the benefit of, or be enforceable by, any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Considerationother Person.
(d) Notwithstanding anything herein For purposes of the Parties’ indemnification obligations under this Article IX, all of the representations and warranties set forth in this Agreement that are qualified as to the contrary, there “material,” “materiality,” “material respects,” “Material Adverse Effect,” or words of similar import or effect shall be no maximum liability deemed to have been made without any such qualification for purposes of determining: (i) whether a breach of any Company Member such representation or Parent Indemnified Party who committedwarranty has occurred; and (ii) the amount of Losses based upon, participated arising out of or resulting from any such breach of representation or warranty; provided, that the provisions of this Section 9.6(d) shall be disregarded with respect to any reference to “material” and similar references hereinbefore set forth in or had actual knowledge Section 4.6(e), the first sentence of fraudSection 4.7, intentional misrepresentation or willful breachthe last sentence of Section 4.11(c) and the last sentences of Sections 4.23(a), 4.23(b) and 4.23(c).
(e) No Parent Indemnified Party may recover any Damages in respect For purposes of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages Losses incurred in connection with any breach of any representation, warranty or Covenant set forth in this Agreement, such amount shall:
(i) be reduced by the amount of any insurance proceeds (other than any insurance proceeds from the R&W Insurance Policy) actually received by, or paid on behalf of, the Buyer or the Acquired Group in respect of the inaccuracy in or breach Losses (net of any representation deductible amounts and any reasonable costs and expenses actually incurred by the Buyer and the Acquired Group in collecting such insurance proceeds, including reasonable attorneys’ fees, and the projected future premium increases attributable to the making of, or warranty as of any particular dateactions to collect, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.insurance proceeds); and
(fii) Notwithstanding anything herein to the contrary, for purposes of calculating or determining be reduced by the amount of Damages incurred under Section 10.2 any reimbursement, indemnity or Section 10.3other payments received by, there shall be deducted from or paid to, the Buyer or the Acquired Group in respect of the Losses by any Damages an amount of any insurance proceedsthird party, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes reasonable costs and expenses of recovery or collection thereof) actually received incurred by any Company Indemnified Party or Parent Indemnified Party, as applicable, the Buyer and the Acquired Group in connection with collecting such Damagesamounts; provided, however, that none of the Indemnified Parties no Indemnifying Party shall have any obligation to (i) seek recovery rights of subrogation against any Person for any claims made in accordance with this Agreement.
(f) In the event that insurance policies (other than proceeds are received by the Tail Policy) Buyer or (ii) obtain insurance coverage or other third party protection the Acquired Group with respect to any particular matter. Each of Parent and Representative (on behalf of a Loss after an indemnification payment has been made by the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), Sellers hereunder with respect to such Loss other than from the accuracy Indemnification Escrow Amount, the Buyer or inaccuracy the Acquired Group shall pay to the Sellers the amount of such insurance proceeds (net of any deductible amounts and any reasonable costs and expenses actually incurred by the Buyer and the Acquire Group in collecting such insurance proceeds, including reasonable attorneys’ fees, and the projected future premium increases attributable to the making of, or compliance withactions to collect, any representation, warranty, covenant, agreement or obligation such insurance proceeds) received by the Buyer or the existence Acquired Group with respect to such Loss, in each case not more than the amount of facts and circumstances that provide the basis for a Claim hereundersuch indemnification payment.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (AquaVenture Holdings LTD)
Limitations. The Defending Party's obligations to indemnify the Asserting Party pursuant to this Article 13 shall be subject to the following limitations:
(a) In the case of No indemnification under Section 13.1(a) or 13.2(a) for any General Representation Claim, each Company Member Losses shall be severally required to be made by the Defending Party until the aggregate amount of the Asserting Party's Losses exceeds $2,000,000, and not jointly liable for then indemnification shall be required to be made by the Defending Party only to the extent of such Company Member’s Pro Rata Share of any Damages resulting therefrom, Losses that exceed $1,000,000; provided that the aggregate liability foregoing limitation shall not apply to (i) any intentional breach of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case a representation or warranty, (ii) any breach by DCS of any claim pursuant to Section 10.3(a) a representation or Section 10.3(c) (other than a claim warranty set forth in connection with a Fundamental Representation) (a “Parent General Claim”Sections 7.2, 7.3(a), the aggregate liability 7.6, 7.12, 7.15, 7.16 and 7.21 (each, a "DCS EXEMPT REPRESENTATION"), or (iii) any breach by AWS of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Capa representation or warranty set forth in Sections 8.2, 8.3(a), 8.3(b), 8.6, 8.12, 8.15, 8.16 and 8.21 (each, an "AWS EXEMPT REPRESENTATION").
(b) In The aggregate liability of the case Defending Party under Section 13.1(a) or 13.2(a), as applicable, shall not exceed $15,000,000, provided, that the foregoing limitation shall not apply to (w) any intentional breach of a representation or warranty, (x) any Claim under (i) breach by AWS of Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a8.3(b), (iiy) any breach by DCS of clauses a DCS Exempt Representation, or (bz) through (j) any breach by AWS of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3an AWS Exempt Representation.
(c) Subject The indemnification obligation of a Defending Party shall be reduced to Section 10.4(d)the extent of any available insurance proceeds payable to the Asserting Party, in no event net of any increased insurance premiums becoming payable by the Asserting Party to the extent such increase is a direct result of such insurance proceeds becoming available. The Defending Party shall any Company Member have liability pursuant to pay its indemnification obligations as and when required by this Article 10 13 and the Asserting Party shall refund to the Defending Party any such amounts determined to be in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Defending Party’s proceeds) 's obligations due to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability reductions pursuant to this Article 10 in excess Section 13.5(c). Additionally, the Asserting Party shall refund promptly to the Defending Party any amount of the Merger ConsiderationAsserting Party's Losses that are subsequently recovered by the Asserting Party pursuant to a settlement or otherwise.
(d) Notwithstanding anything herein To the extent that any AWS Losses relate to California Assets used in, or the California Business conducted in, the Santa Cruz, CA MSA, any payments made by DCS as indemnification under this Article 13 for such AWS Losses shall be paid in an amount equal to the contrary, there product of (i) the full amount otherwise required to be paid under this Article 13 multiplied by (ii) 87.38649%. This discount shall be no maximum liability for any Company Member or Parent Indemnified Party who committedapplied with regard to the calculation of the aggregate amount of an Asserting Party's Losses, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breachpursuant to Section 13.5(a).
(e) No Parent Indemnified Party may recover any Damages From and after the Closing Date, the indemnification rights contained in respect of General Representation Claims unless this Article 13 shall constitute the sole and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess exclusive remedies of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurredparties hereunder, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular dateshall supersede and displace all other rights that either party may have under Law, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each breach of Parent and Representative (on behalf any of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with representations and warranties made by the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth parties in this Agreement shall not be affected by or in any investigation conducted by Parentcertificate, schedule, statement, document or any knowledge acquired (instrument furnished hereunder or capable in connection with the execution and performance of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderthis Agreement.
Appears in 1 contract
Samples: Asset Exchange Agreement (At&t Wireless Services Inc)
Limitations. The Indemnifying Party’s liability for all claims for indemnifiable Losses made under Section 7.2(a)(i) (aeach a “Claim”) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable subject to the following limitations: (x) the Indemnifying Party shall have no liability for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that individual Claim until the aggregate liability amount of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant Loss finally determined to Section 10.3(a) have been incurred or Section 10.3(c) paid equals or exceeds $50,000 (other than a claim in connection with a Fundamental Representation) (each, a “Parent General ClaimQualified Loss”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that y) the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party shall have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that amount of the Qualified Losses finally determined to have been incurred, incurred or paid or properly accrued shall exceed $287,500 [***]* ([***]*) of the “Deductible”)Purchase Price, in which case the Parent Indemnified Parties may recover Indemnifying Party shall be liable for all Damages in excess Qualified Losses, and (z) the Indemnifying Party’s aggregate liability for all such Losses shall not exceed [***]* ([***]*) of the DeductiblePurchase Price. No Company Indemnified Party may recover any Damages None of the limitations set forth in respect of Parent General Claims unless and until Damages this Section 7.3(a) shall apply in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in Losses or other indemnification matter based upon, arising out of, or relating * [***] Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect of to the inaccuracy in omitted portions. * [***] Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. * [***] Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. * [***] Certain information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. to (i) intentional misrepresentations, fraud or criminal matters or (ii) any misrepresentation or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 3.1 (Organization, Qualification and Power), 3.2 (Authorization of Transaction), 3.5 (Title to Assets) or Section 10.33.14 (Taxes) (collectively, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages“Fundamental Representations”); provided, however, that none the Indemnifying Party’s aggregate liability for all such Losses resulting from a breach of any of the Indemnified Parties Fundamental Representations shall have not exceed the Purchase Price, inclusive of any obligation other amounts actually paid out pursuant to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except VII; provided, further, for the sake of clarity, that to the extent such punitive damages are awarded to a third party or in the case of fraudBuyer is an Indemnified Party, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis Buyer may only obtain recovery for a Loss from a Claim hereunderagainst either Seller or Vivus Real Estate, but not both, as the Indemnifying Party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Vivus Inc)
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under IN NO CIRCUMSTANCES: (i) Section 10.2(aSHALL CORERO’S LIABILITY FOR ANY DAMAGES, LOSSES, CLAIMS, COSTS OR FINES SUFFERED OR INCURRED BY THE SERVICE PROVIDER UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), OR OTHERWISE EXCEED IN AGGREGATE THE SUM OF £25,000; (ii) any of clauses SHALL CORERO BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES (b) through (j) of Section 10.2 ((i) and (iiINCLUDING BUT NOT LIMITED TO LOST BUSINESS PROFITS AND LOSS, DAMAGE OR DESTRUCTION OF DATA), collectivelyWHETHER THE CLAIM IS BASED ON CONTRACT, NEGLIGENCE OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. FOR THE AVOIDANCE OF DOUBT, THE LIABILITY OF THE PARTIES CONCERNING THE EQUIPMENT, PROGRAM, SOFTWARE AND PROTECTION SERVICE IS SUBJECT TO THE TERMS OF THE EQUIPMENT AND SERVICE PURCHASE AGREEMENT. The Service Provider acknowledges that it is solely responsible for contracting with and delivering services to its End-Users. Therefore, Service Provider shall defend, indemnify and hold Corero and its respective members, officers, directors, employees, contractors and agents (collectively “Special MattersCorero Indemnitees”)) harmless at its expense from any claim, each Company Member suit, investigation or proceeding (each, a “Claim”) brought against Corero Indemnitees by any End User that is based on or related to the Protection Services. and Service Provider shall be severally pay all costs and not jointly liable for such Company Member’s Pro Rata Share damages finally awarded against Corero Indemnitees by a court of competent jurisdiction as a result of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damagesclaim; provided, however, that none Corero (a) promptly notifies Service Provider in writing of such Claim; (b) promptly gives Service Provider the right to control and direct the investigation, preparation, defense, and settlement of such Claim, with counsel of Service Provider’s own choosing (provided that Corero Indemnitee shall have the right to reasonably participate, at Corero Indemnitee’s own expense, in the defense or settlement of any such Claim); and (c) give reasonable assistance and cooperation for the defense of same. Service Provider shall have a right of set off, against its indemnity obligations hereunder, to the extent that any Claim is caused by actions or failures to act by Corero that constitute breach of this Agreement or the Equipment and Service Purchase Agreement, but only pursuant to the terms of such Agreements and subject to the limitations of liability provided therein. Service Provider acknowledges that the information, data and other analysis ("Data") provided by Corero as part of the Indemnified Parties shall have Program is Corero Confidential Information and is intended for use only with and as part of the Service under this Agreement and Corero licenses Service Provider to use Data only for such purpose. Such Data is not licensed or warranted for use for any obligation other purpose or to (i) seek recovery be error free. If Service Provider nevertheless uses the Data for any other purposes, Service Provider will indemnify, defend and hold Corero, its affiliates and their respective directors, officers, employees, agents and representatives, harmless from and against any insurance policies and all third party claims, suits, actions, proceedings, damages, costs, liabilities, losses, and expenses (other than including, but not limited to, reasonable attorneys’ fees) arising out of or relating to any such use, including but not limited to, reliance on any such Data for claims or actions against any third parties. Service Provider acknowledges, accepts and agrees that Corero’s obligations under this Agreement insofar as referring potential End-Users is concerned, are limited to passing their contact details to the Tail Policy) or (ii) obtain insurance coverage Service Provider. Accordingly, Corero shall not offer any warranty, assurance or other third party protection with respect statement to any particular matter. Each of Parent and Representative (on behalf potential or actual End-Users concerning the quality or fitness for purpose of the Company Members) services provided by Service Provider (and Service Provider shall use commercially reasonable efforts not make any such warranty, assurance or other statement on Corero’s behalf). Service Provider acknowledges that Corero has entered into this Agreement in reliance upon the limitations of liability, the indemnities and the disclaimers of warranties and damages set forth above, and that the same form an essential basis of the bargain between Service Provider and Corero. Service Provider and Corero agree that the limitations and exclusions of liability, the indemnities and disclaimers specified in this Agreement will survive and apply even if found to mitigate Damages have failed of their essential purpose. No action, regardless of form, arising out of, or in accordance any way connected with the common law doctrine of mitigation.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages Program provided under this Agreement may be recoverable under brought by either party more than one provision (1) year after the claim on which the action is based occurred, except that actions for non-payment of Section 10.2 or Section 10.3.
(h) Notwithstanding anything amounts owing to the contrary contained in this Agreement, under no circumstances will Corero hereunder may be brought at any Indemnified Party be entitled to recover exemplary or punitive damages time. When handling any Personal Data under this Article 10 Agreement (except which shall be limited to names and business contact details of a nominated individual at one of the extent such punitive damages are awarded to a third paeties or at an End-User or potential End-User) each party or in shall comply with its respective obligations under the case of fraud, intentional misrepresentation or willful breach)applicable Data Protection Legislation.
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Limitations. (a) In no event shall the case of any General Representation Claim, each Company Member shall Seller or the Acquiror be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a11.2(a) or --------------- 11.2(b), as applicable, unless and until the aggregate ------- amount of all such Damages exceeds $100,000 (the "LIABILITY THRESHOLD"), in which case the Seller or the Acquiror, as applicable, shall be liable for all such Damages in excess of the Liability Threshold, and then not for any Damages in excess of the then applicable Liability Cap for all claims made under such Section 10.3(c11.2(a) or 11.2(b), as applicable, --------------- ------- in the aggregate; provided, however, that: (other than a claim in connection with a Fundamental RepresentationA) (a “Parent General Claim”for purposes of claims made by the Acquiror under Sections 11.2(a)(iii), --------------------- 11.2(a)(iv) or 11.2(a)(v), the aggregate liability Seller shall be liable for ----------- ---------- all Damages suffered by the Acquiror without regard to the Liability Threshold or Liability Cap; (B) for purposes of claims made by the Parent Indemnified Parties Seller under Section 11.2(b)(iii), the -------------------- Acquiror shall be liable for all Damages suffered by the Seller without regard to the Liability Threshold or Liability Cap; and (C) for purposes of claims made by a party due to the other party's fraud or willful misconduct, such claims party shall be capped at liable for all Damages suffered by the General Representation other party without regard to the Liability Threshold or Liability Cap.
(b) In Each party agrees that it shall, and shall cause the case of any Claim under (i) Section 10.2(a) applicable Indemnitees to, use its or their commercially reasonable efforts to secure payment from insurance policies available and in existence that provide coverage with respect to any Fundamental Representation or any certifications made with respect thereto pursuant Damages to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share indemnified. The amount of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters recoverable by a party under Section ------- 11.2 shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such Indemnifying Party’s proceeds) to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent Indemnifying Party have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member or Parent Indemnified Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed $287,500 (the “Deductible”), in which case the Parent Indemnified Parties may recover all Damages in excess of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurred, and in determining reduced by the amount of any Damages in respect of the inaccuracy in or breach of any representation or warranty as of any particular date, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(f) Notwithstanding anything herein insurance ---- proceeds actually paid to the contrary, for purposes of calculating or determining the amount of Damages incurred under Section 10.2 or Section 10.3, there shall be deducted from any Damages an amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Partythe Indemnitee, as applicable, in connection with relating to such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage or other third party protection with respect to any particular matter. Each of Parent and Representative (on behalf of the Company Members) shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigationclaim.
(g) No Indemnified Party shall be entitled to double recovery for any indemnifiable Damages even though such Damages may be recoverable under more than one provision of Section 10.2 or Section 10.3.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement shall not be affected by any investigation conducted by Parent, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Kv Pharmaceutical Co /De/)
Limitations. (a) In the case of any General Representation Claim, each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability of the Company Members for all General Representation Claims shall be capped at the General Representation Cap. In the case of any claim pursuant to Section 10.3(a) or Section 10.3(c) (other than a claim in connection with a Fundamental Representation) (a “Parent General Claim”), the aggregate liability of the Parent Indemnified Parties for all such claims shall be capped at the General Representation Cap.
(b) In the case of any Claim under (i) Section 10.2(a) with respect to any Fundamental Representation or any certifications made with respect thereto pursuant to Section 8.2(a), (ii) any of clauses (b) through (j) of Section 10.2 ((i) and (ii), collectively, “Special Matters”), each Company Member shall be severally and not jointly liable for such Company Member’s Pro Rata Share of any Damages resulting therefrom, provided that the aggregate liability for the Company Members for all Claims for Special Matters shall be capped at the Merger Consideration paid or payable to the Company Members pursuant to Section 2.3.
(c) Subject to Section 10.4(d), in no event shall any Company Member have liability pursuant to this Article 10 in excess of the Merger Consideration payable (inclusive of the portion of the Holdback Amount and the Expense Fund Amount withheld from such The Indemnifying Party’s proceedsliability for all claims for indemnifiable Losses (each a “Claim”) made under Section 7.2(a)(i) of this Article VII shall be subject to such Company Member pursuant to Section 2.3. Subject to Section 10.4(d), in no event shall any Parent the following limitations: (x) the Indemnifying Party shall have liability pursuant to this Article 10 in excess of the Merger Consideration.
(d) Notwithstanding anything herein to the contrary, there shall be no maximum liability for any Company Member individual Claim until the amount of the Loss finally determined to have been incurred or Parent Indemnified paid equals or exceeds $25,000 (each, a “Qualified Loss”) (it being understood that any one or more Claims arising from the same set of facts and circumstances may be aggregated for purposes of determining a Qualified Loss), and (y) the Indemnifying Party who committed, participated in or had actual knowledge of fraud, intentional misrepresentation or willful breach.
(e) No Parent Indemnified Party may recover shall have no liability for any Damages in respect of General Representation Claims unless and until Damages in the aggregate under all Claims that amount of the Qualified Losses finally determined to have been incurred, incurred or paid or properly accrued shall exceed $287,500 2,000,000 (the “DeductibleDeductible Amount”), in which case the Parent Indemnified Parties may recover all Damages in excess Indemnifying Party shall be liable only for the portion of the Deductible. No Company Indemnified Party may recover any Damages in respect of Parent General Claims unless and until Damages in Qualified Losses exceeding the aggregate under all Claims that have been incurred, paid or properly accrued exceed the Deductible, in which case the Company Indemnified Parties may recover all Damages in excess of the deductible. In determining whether a breach of a representation or warranty has occurredDeductible Amount, and (z) the Indemnifying Party’s aggregate liability for all such Losses shall not exceed $48,750,000 (the “Indemnity Cap”); provided, however, that the limitations set forth in determining the amount of this Section 7.3(a) shall not apply to Losses attributable to any Damages in respect of the inaccuracy in or breach of any representation or warranty as contained in Section 3.2 (Authorization of any particular date, any materiality, Material Adverse Effect or similar qualification limiting Transaction) and the scope first sentence of such representation or warranty shall be disregardedSection 3.9 (Title to Assets).
(fb) Notwithstanding anything herein contained in this Agreement to the contrary, for purposes of calculating or determining the amount of Damages incurred the Indemnifying Party’s liability under Section 10.2 or Section 10.3, there this Agreement shall be deducted from any Damages an amount net of any insurance proceeds, indemnification payments, contribution payments or reimbursements (after giving effect to any deductible or retention or increase in premium associated therewith to the extent paid or payable and net of any costs, Taxes and expenses of recovery or collection thereof) actually received by any Company Indemnified Party or Parent Indemnified Party, as applicable, in connection with such Damages; provided, however, that none of the Indemnified Parties shall have any obligation to (i) seek recovery against any insurance policies (other than the Tail Policy) or (ii) obtain insurance coverage proceeds or other third party protection with respect to any particular matterindemnity or contribution amounts actually recovered by an Indemnified Party. Each of Parent Indemnified Party shall use commercially reasonable efforts to collect any such insurance proceeds or other third party indemnity or contribution amounts recoverable by such Indemnified Party, and Representative (on behalf of in the Company Members) event any such amounts are collected after a Claim has been paid by an Indemnifying Party, the Indemnified Party shall promptly reimburse such amounts to such Indemnifying Party. Each Party shall use commercially reasonable efforts to mitigate Damages in accordance with the common law doctrine of mitigationits damages.
(gc) No Indemnified Notwithstanding anything contained in this Agreement to the contrary, no Party shall be entitled liable to double recovery the other Party for any indemnifiable Damages even though such Damages may be recoverable under more than one provision indirect, special, punitive, exemplary or consequential loss or damage (including any loss of Section 10.2 revenue or Section 10.3.
(hprofit) Notwithstanding anything to the contrary contained in arising out of this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary or punitive damages under this Article 10 (except to provided, however, that the extent such punitive damages are awarded to a third party or in the case of fraud, intentional misrepresentation or willful breach).
(i) The rights to indemnification, compensation or reimbursement set forth in this Agreement foregoing shall not be affected construed to preclude recovery by any investigation conducted by Parent, or any knowledge acquired (or capable the Indemnified Party in respect of being acquired) at any time (whether before or after the Agreement Date or the Closing Date), with respect to the accuracy or inaccuracy of, or compliance with, any representation, warranty, covenant, agreement or obligation or the existence of facts and circumstances that provide the basis for a Claim hereunderLosses directly incurred from Third Party Claims.
Appears in 1 contract
