Limits on Indemnification. All Indemnifiable Costs sought by any party hereunder shall be net of any insurance proceeds received by such Person with respect to such claim or tax benefits to the extent actually received by such Person as a result of an indemnified claim. Regardless of any investigation at any time made by or on behalf of any Party hereto or of any information any Party may have in respect thereof: 8.4.1. The representations, warranties, covenants, and agreements respectively made by Seller and Buyer in this Agreement, in the Disclosure Schedule, or in any certificate respectively delivered by Seller or Buyer pursuant to Section 7 will survive the Closing and the Closing Date: (a) With respect to the representations and warranties of the Parties set forth in Sections 3.1, 3.3, 4.1 and 4.2, indefinitely (b) Until the expiration of all applicable statutes of limitations (including all periods of extension, whether automatic or permissive) in the case of the representations and warranties of Seller respectively set forth in Sections 3.2, 3.24, 3.26, 3.35 and 4.3; (c) Until the expiration of all applicable statutes of limitations (including all periods of extension, whether automatic or permissive; but excluding waiver or extension of the statute of limitation with respect to claims of fraud) in the case of the representations and warranties of Seller respectively set forth in Sections 3.13; and (d) Until the eighteenth month anniversary of the Closing Date in the case of all other representations, warranties, covenants, and agreements. 8.4.2. If a notice or demand for indemnification is given in accordance with Section 8.2 before expiration of the applicable time period referenced above, then (notwithstanding such time period) the representation, warranty, covenant, or agreement applicable to such claim shall survive until, but only for purposes of, resolution of such claim. 8.4.3. Seller shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation hereunder exceeds $50,000 in the aggregate (provided that, any liability pursuant to Section 8.3 shall not be subject to the $50,000 threshold), whereupon Seller shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Seller hereunder exceed $4,000,000 in the aggregate. 8.4.4. Buyer shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation to the Company or Seller hereunder exceeds $50,000 in the aggregate, whereupon Buyer shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Buyer under this Section 8 exceed $4,000,000 in the aggregate. 8.4.5. However, nothing in this Section 8 shall limit Buyer or Seller in exercising or securing any other remedies provided by this Agreement in regard to a Party’s default or breach of this Agreement. 8.4.6. Any settlement of a claim brought against an Indemnified Party must be consented to in writing by the Indemnified Party, and such consent shall not be unreasonably withheld. Neither Buyer nor Seller shall be liable for punitive damages pursuant to any claim made by another Party to this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (First Trinity Financial CORP), Stock Purchase Agreement (Brooke Capital Corp)
Limits on Indemnification. All Indemnifiable Costs sought by any party hereunder shall be net of any insurance proceeds received by such Person with respect to such claim or tax benefits Notwithstanding anything to the extent actually received by such Person as a result of an indemnified claim. Regardless of any investigation at any time made by or on behalf of any Party hereto or of any information any Party may have in respect thereof:
8.4.1. The representations, warranties, covenants, and agreements respectively made by Seller and Buyer contrary contained in this Agreement, in Parent’s and Seller’s indemnification obligation under Section 8.1(a) shall be subject to each of the Disclosure Schedule, or in any certificate respectively delivered by Seller or Buyer pursuant to Section 7 will survive the Closing and the Closing Datefollowing limitations:
(a) With respect to indemnification for Losses arising out of or relating to any breaches of any representation or warranty by Seller in this Agreement (other than Sections 3.1, 3.2, 3.3, 3.5, 3.6 or 3.17(m) (the “Fundamental Reps”), as to which Seller’s obligations under Section 8.1(a) shall survive indefinitely and any breaches of Seller’s representations and warranties contained in Section 3.18 which are addressed in Section 5.4 and as to which Seller shall have no indemnification obligations under Section 8.1(a)) and to the Scheduled Matter, such obligation to indemnify shall terminate on the earlier of (x) a date eighteen months after the Closing and (y) March 1, 2008, unless before such termination date Buyer shall have delivered to Seller a Claim Notice with respect to which any claim for indemnification set forth therein has not been finally resolved as contemplated by this Article VIII as of the Parties set forth in Sections 3.1expiration of such period, 3.3, 4.1 provided that such obligation to indemnify shall continue beyond such period only with respect to any such unresolved claim and 4.2, indefinitelyonly until such unresolved claim is finally resolved as contemplated by this Article VIII;
(b) Until Except with respect to any breach of the expiration Fundamental Reps or the Covered Matter, there shall be no obligation to indemnify under Section 8.1(a) unless the aggregate of all applicable statutes Losses for which Parent and Seller, but for this clause (b), would be liable under Section 8.1(a) exceeds on a cumulative basis an amount equal to $4,500,000, and then only to the extent of limitations (including all periods of extension, whether automatic or permissive) in the case of the representations and warranties of Seller respectively set forth in Sections 3.2, 3.24, 3.26, 3.35 and 4.3such excess;
(c) Until the expiration of all applicable statutes of limitations (including all periods of extension, whether automatic or permissive; but excluding waiver or extension of the statute of limitation Except with respect to claims any breach of fraudthe Fundamental Reps:
(i) subject to clause (ii) of this Section 8.2(c), there shall be no obligation to indemnify under Section 8.1(a) to the extent amounts previously actually indemnified under Section 8.1(a) are, in the aggregate, in excess of $28,700,000 (the “General Indemnity Cap”);
(ii) with respect only to the Specified Matters, there shall be no obligation to indemnify under Section 8.1(a) in respect of such Specified Matters to the case extent amounts previously actually indemnified under Section 8.1(a) in respect thereof are, in the aggregate, in excess of $10,000,000 (the “Special Indemnity Cap”), it being understood that in the event that the aggregate amount of the representations Losses incurred by, or claimed or assessed against, the Buyer Indemnified Parties in respect of the Specified Matters exceeds the Special Indemnity Cap, such excess shall remain subject to indemnification under Section 8.1(a) to the extent that there is then any remaining availability under the General Indemnity Cap; it being understood that Losses related to the Specified Matters shall first be applied against the Special Indemnity Cap and warranties of Seller respectively set forth then against the General Indemnity Cap in Sections 3.13accordance with this Article VIII; and
(diii) Until the eighteenth month anniversary of the Closing Date in the case of all other representations, warranties, covenants, and agreements.
8.4.2. If a notice or demand for indemnification is given in accordance with Section 8.2 before expiration of the applicable time period referenced above, then (notwithstanding such time period) the representation, warranty, covenant, or agreement applicable to such claim shall survive until, but only for purposes of, resolution of such claim.
8.4.3. Seller shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation hereunder exceeds $50,000 in the aggregate (provided that, any liability pursuant to Section 8.3 shall not be subject to the $50,000 threshold), whereupon Seller shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Parent and Seller hereunder under Section 8.1(a) shall not exceed $4,000,000 the sum of the General Indemnity Cap and, subject to the provisions of the immediately preceding clause (ii), the Special Indemnity Cap;
(d) For the avoidance of doubt, Parent’s and Seller’s obligations under Section 8.1(a) relating to the Covered Matter shall survive indefinitely;
(e) For the avoidance of doubt, indemnification may not be sought under Section 8.1(a) to the extent that any amount claimed as a Loss thereunder has been paid to Buyer pursuant to Section 1.4; and
(f) Each Loss shall be reduced by (i) the amount of any insurance proceeds actually received by the relevant Buyer Indemnified Person with respect to such Loss, (ii) any indemnity, contribution or other similar payment actually received by the relevant Buyer Indemnified Person from any third party with respect to such Loss, and (iii) any reduction in Taxes actually realized by the relevant Buyer Indemnified Party with respect to such Loss in the aggregateyear such Loss was actually incurred.
8.4.4. Buyer shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation to the Company or Seller hereunder exceeds $50,000 in the aggregate, whereupon Buyer shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Buyer under this Section 8 exceed $4,000,000 in the aggregate.
8.4.5. However, nothing in this Section 8 shall limit Buyer or Seller in exercising or securing any other remedies provided by this Agreement in regard to a Party’s default or breach of this Agreement.
8.4.6. Any settlement of a claim brought against an Indemnified Party must be consented to in writing by the Indemnified Party, and such consent shall not be unreasonably withheld. Neither Buyer nor Seller shall be liable for punitive damages pursuant to any claim made by another Party to this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Level 3 Communications Inc)
Limits on Indemnification. All Indemnifiable Costs sought by any party hereunder shall be net of any insurance proceeds received by such Person with respect to such claim or tax benefits to the extent actually received by such Person as a result of an indemnified claim. Regardless of any investigation at any time made by or on behalf of any Party hereto or of any information any Party may have in respect thereof:
8.4.1. The representations, warranties, covenants, and agreements respectively made by Seller and Buyer in this Agreement, in the Disclosure Schedule, or in any certificate respectively delivered by Seller or Buyer pursuant to Section 7 will survive the Closing and the Closing Date:
(a) With respect to the representations and warranties of the Parties set forth in Sections 3.1, 3.3, 4.1 and 4.2, indefinitely
(b) Until the expiration of all applicable statutes of limitations (including all periods of extension, whether automatic or permissive) in the case of the representations and warranties of Seller respectively set forth in Sections 3.2, 3.24, 3.26, 3.35 and 4.3;
(c) Until the expiration of all applicable statutes of limitations (including all periods of extension, whether automatic or permissive; but excluding waiver or extension of the statute of limitation with respect to claims of fraud) in the case of the representations and warranties of Seller respectively set forth in Sections Section 3.13; and
(d) Until the eighteenth twelfth month anniversary of the Closing Date in the case of all other representations, warranties, covenants, and agreements.
8.4.2. If a notice or demand for indemnification is given in accordance with Section 8.2 before expiration of the applicable time period referenced above, then (notwithstanding such time period) the representation, warranty, covenant, or agreement applicable to such claim shall survive until, but only for purposes of, resolution of such claim.
8.4.3. Seller shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation hereunder exceeds $50,000 in the aggregate (provided that, any liability pursuant to Section 8.3 shall not be subject to the $50,000 threshold), whereupon Seller shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Seller hereunder exceed $4,000,000 in the aggregate4,500,000.
8.4.4. Buyer shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation to the Company or Seller hereunder exceeds $50,000 in the aggregate, whereupon Buyer shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Buyer under this Section 8 exceed $4,000,000 in the aggregate4,500,000.
8.4.5. However, nothing in this Section 8 shall limit Buyer or Seller in exercising or securing any other remedies provided by this Agreement in regard to a Party’s default or breach of this Agreement.
8.4.6. Any settlement of a claim brought against an Indemnified Party must be consented to in writing by the Indemnified Party, and such consent shall not be unreasonably withheld. Neither Buyer nor Seller shall be liable for punitive damages pursuant to any claim made by another Party to this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (First Trinity Financial CORP)
Limits on Indemnification. All Indemnifiable Costs sought by any party hereunder shall be net of any insurance proceeds received by such Person with respect to such claim or tax benefits Notwithstanding anything contained herein to the extent actually received by such Person as a result of an indemnified claim. Regardless of any investigation at any time made by or on behalf of any Party hereto or of any information any Party may have in respect thereof:
8.4.1. The representations, warranties, covenants, and agreements respectively made by Seller and Buyer in this Agreement, in the Disclosure Schedule, or in any certificate respectively delivered by Seller or Buyer pursuant to Section 7 will survive the Closing and the Closing Date:contrary,
(a) With respect to (i) (A) the representations Seller shall not have any liability under Sections 9.2(a), 9.2(d) or 9.2(g) until the amount of indemnifiable Buyer Losses under such Sections, in the aggregate, exceeds Five Hundred Thousand dollars ($500,000) (the “Threshold”), at which time the total amount of such Buyer Losses shall be recoverable hereunder and warranties (B) the Seller shall not have any liability under Section 9.2(b) until the amount of indemnifiable Buyer Losses thereunder, in the Parties set forth aggregate, exceeds Two Million dollars ($2,000,000), and (ii) no Buyer or Systemax shall have any liability under Sections 9.3(a) or 9.3(c) of this Agreement until the amount of indemnifiable Seller Losses thereunder, in Sections 3.1the aggregate, 3.3exceeds the Threshold, 4.1 and 4.2, indefinitelyat which time the total amount of such Seller Losses shall be recoverable hereunder;
(b) Until the expiration of all applicable statutes of limitations (including all periods of extension, whether automatic or permissive) in the case aggregate obligations of the representations Buyers and warranties Systemax to indemnify, defend and hold the Seller Indemnified Parties harmless for indemnification claims made pursuant to Section 9.3(e) after the second anniversary of Seller respectively set forth in Sections 3.2the Internet Closing Date shall be limited to Ten Million dollars ($10,000,000) (the “Indemnity Cap Amount”); provided, 3.24that the Indemnity Cap Amount shall not apply unless, 3.26on or before the second (2nd) anniversary of the Internet Closing Date, 3.35 Systemax and 4.3;each of the Buyers have, and have caused their Affiliates to, store the Specified Data in, or otherwise transfer the Specified Data to, a Data Escrow and permanently erase, purge and otherwise destroy all other copies of the Specified Data, other than such data relating to any individual who has accepted the provisions of any privacy policy or other contract that contains terms governing the collection, receipt, use, disclosure and transfer of such data and that is effective after the Internet Closing Date (whether by purchasing a product from the Internet Buyers or otherwise).
(c) Until any indemnification payments required to be made pursuant to this Agreement shall be reduced by any insurance proceeds actually received by the expiration of all applicable statutes of limitations (including all periods of extension, whether automatic or permissive; but excluding waiver or extension of the statute of limitation indemnified party with respect to claims of fraud) in the case item giving rise to the indemnification payment. Upon the making of the representations and warranties full amount of Seller respectively set forth in Sections 3.13the applicable indemnification payment to the indemnified party, the indemnifying party shall be subrogated to the rights of the indemnified party, up to the amount of such indemnification payment, to claim any insurance proceeds not yet recovered by the indemnified party with respect to the item which gave rise to the indemnification payment; and
(d) Until the eighteenth month anniversary of the Closing Date in the case of all other representationsevent that any Buyer Indemnified Party has the right to indemnity with respect to any Buyer Losses under Section 9.2, warranties, covenants, and agreements.
8.4.2. If a notice or demand for indemnification is given in accordance with Section 8.2 before expiration of the applicable time period referenced above, then (notwithstanding such time period) the representation, warranty, covenant, or agreement applicable to such claim shall survive until, but only for purposes of, resolution of such claim.
8.4.3. Seller shall not be obligated have no liability to pay indemnify any amounts for indemnification under this Section 8 until Buyer Indemnified Party more than once with respect to any such Buyer Losses nor shall the aggregate indemnification obligation hereunder exceeds $50,000 in the aggregate (provided that, Seller have any liability pursuant to Section 8.3 shall not be subject to the $50,000 threshold), whereupon Seller shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Seller hereunder exceed $4,000,000 in the aggregate.
8.4.4. indemnify more than one Buyer shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation to the Company or Seller hereunder exceeds $50,000 in the aggregate, whereupon Buyer shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Buyer under this Section 8 exceed $4,000,000 in the aggregate.
8.4.5. However, nothing in this Section 8 shall limit Buyer or Seller in exercising or securing any other remedies provided by this Agreement in regard to a Party’s default or breach of this Agreement.
8.4.6. Any settlement of a claim brought against an Indemnified Party must be consented to in writing by for the Indemnified Party, and such consent shall not be unreasonably withheld. Neither same Buyer nor Seller shall be liable for punitive damages pursuant to any claim made by another Party to this AgreementLosses.
Appears in 1 contract
Limits on Indemnification. All Indemnifiable Costs sought by Notwithstanding anything to the contrary contained in this Agreement:
(i) Seller shall not have any party hereunder obligation to provide indemnification for Losses with respect to any specific occurrence, event or circumstance giving rise to a right to be indemnified pursuant to Section 13(a) unless the amount of each such specific Loss exceeds twenty-five thousand dollars ($25,000) and the aggregate amount of such Losses exceeds one percent (1%) of the Purchase Price (the “Deductible”), and in the event such Losses exceed the Deductible, only the value of all Losses in excess of the Deductible shall be net considered in applying this Section 13(a). The maximum aggregate amount for which Seller may be liable under this Section 13 shall be limited to five percent (5%) of the Purchase Price.
(ii) With the exception of the representation set forth in Section 3(a)(xx) which shall not survive Closing and Buyer’s obligation to indemnify Seller for all Losses arising from Buyer’s operations on the Oil and Gas Properties which shall survive for a period of five (5) years following Closing, all representations, warranties, covenants and indemnities contained in this Agreement shall survive for a period of six (6) months following the Closing, after which time neither Seller, Buyer, or any insurance proceeds received by such Person officer, director, employee, Affiliate or Related Party of Seller or Buyer shall have any liability whatsoever (whether pursuant to this Agreement or otherwise) with respect to such claim representation, warranty, covenant or tax benefits indemnity.
(iii) Any payments made to the extent actually received by such Person as a result of an indemnified claim. Regardless of any investigation at any time made by or on behalf of any Party hereto or of any information any Party may have in respect thereof:
8.4.1. The representations, warranties, covenants, and agreements respectively made by Seller and Buyer in this Agreement, in the Disclosure Schedule, or in any certificate respectively delivered by Seller or Buyer pursuant to this Section 7 will survive 13 shall constitute an adjustment of the Closing Purchase Price for tax purposes and the Closing Date:shall be treated as such by Buyer and Sellers on their tax returns.
(aiv) With respect Any Indemnifying Party shall not be liable under this Section 13 for Losses resulting from any event relating to a breach of representation or warranty if (1) the representations Indemnifying Party had no knowledge of such event and warranties of (2) the Parties set forth in Sections 3.1, 3.3, 4.1 and 4.2, indefinitely
(b) Until Indemnifying Party can establish that the expiration of all applicable statutes of limitations (including all periods of extension, whether automatic Indemnified Party had actual knowledge on or permissive) in the case of the representations and warranties of Seller respectively set forth in Sections 3.2, 3.24, 3.26, 3.35 and 4.3;
(c) Until the expiration of all applicable statutes of limitations (including all periods of extension, whether automatic or permissive; but excluding waiver or extension of the statute of limitation with respect to claims of fraud) in the case of the representations and warranties of Seller respectively set forth in Sections 3.13; and
(d) Until the eighteenth month anniversary of before the Closing Date in the case of all other representations, warranties, covenants, and agreements.
8.4.2. If a notice or demand for indemnification is given in accordance with Section 8.2 before expiration of the applicable time period referenced above, then (notwithstanding such time period) the representation, warranty, covenant, or agreement applicable to such claim shall survive until, but only for purposes of, resolution of such claimevent.
8.4.3. Seller shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation hereunder exceeds $50,000 in the aggregate (provided that, any liability pursuant to Section 8.3 shall not be subject to the $50,000 threshold), whereupon Seller shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Seller hereunder exceed $4,000,000 in the aggregate.
8.4.4. Buyer shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation to the Company or Seller hereunder exceeds $50,000 in the aggregate, whereupon Buyer shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Buyer under this Section 8 exceed $4,000,000 in the aggregate.
8.4.5. However, nothing in this Section 8 shall limit Buyer or Seller in exercising or securing any other remedies provided by this Agreement in regard to a Party’s default or breach of this Agreement.
8.4.6. Any settlement of a claim brought against an Indemnified Party must be consented to in writing by the Indemnified Party, and such consent shall not be unreasonably withheld. Neither Buyer nor Seller shall be liable for punitive damages pursuant to any claim made by another Party to this Agreement.
Appears in 1 contract
Limits on Indemnification. All Indemnifiable Costs sought by any party hereunder shall be net of any insurance proceeds received by such Person with respect to such claim or tax benefits to the extent actually received by such Person as a result of an indemnified claim. Regardless of any investigation at any time made by or on behalf of any Party party hereto or of any information any Party party may have in respect thereof:
8.4.1. The , all covenants, agreements, representations, warrantiesand warranties and the related indemnities made hereunder or pursuant hereto or in connection with the transactions contemplated hereby shall survive the Closing for a period of eighteen (18) months, covenantsprovided (a) the representations, warranties and covenants contained in Sections 3.1 (Due Authorization), 3.6 (Capital Stock; Title to Shares), 3.7 (Convertible Securities, Options, Etc.), 3.13 (Taxes), 3.25 (Employee Benefits), 4.2 (Due Authorization), 4.4 (Investment), 4.9 (Issuance of Global Shares), 5.5 (Access), 6.1 (General), 6.2 (Transition), 6.3 (Confidentiality), 6.4 (Covenant Not to Compete), 6.5 (Additional Tax Matters), and agreements respectively made by Seller 6.7 (Shut Down Costs) and Buyer in Article VIII of this Agreement, in and the Disclosure Schedulerelated indemnities, or in as well as the right to make any certificate respectively delivered by Seller or Buyer pursuant to Section 7 will claim for fraud, shall survive the Closing and the Closing Date:
(a) With respect to the representations and warranties of the Parties set forth in Sections 3.1, 3.3, 4.1 and 4.2, indefinitely
(b) Until until the expiration of all the applicable statutes of limitations (including all periods of extensionfor determining or contesting tort or contract claims, whether automatic Tax liabilities or permissive) in fraud, as the case of may be; provided, however, that the representations and warranties of Seller respectively set forth indemnities provided in Sections 3.2Section 8.1(a)(B), 3.24, 3.26, 3.35 and 4.3;
(cC) Until or (D) shall in any event expire no later than the expiration of all applicable statutes of limitations (including all periods of extension, whether automatic or permissive; but excluding waiver or extension of the statute of limitation with respect to claims of fraud) in the case of the representations and warranties of Seller respectively set forth in Sections 3.13; and
(d) Until the eighteenth month fourth anniversary of the Closing Date Date, (b) the representations, warranties and covenants contained in Sections 3.2 (Title to Shares), and 3.4(b) and (c) (Subsidiaries) of this Agreement, and the case of related indemnities, shall survive the Closing indefinitely and not expire, and (c) all other representationscovenants set forth in Article VI which have specific expiration terms as set forth herein shall expire as of the dates set forth therein. Notwithstanding the foregoing, warranties, covenants, and agreements.
8.4.2. If a notice or demand for any indemnification is given in accordance with Section 8.2 before claims made prior to the expiration of the applicable time statute of limitations or period referenced aboveset forth in the preceding sentence, then (notwithstanding shall continue after such time period) the representation, warranty, covenant, or agreement applicable to such claim shall survive until, but only for purposes of, resolution of such claim.
8.4.3date until finally resolved. Seller The Sellers shall not be obligated to pay any amounts for indemnification under this Section 8 Article VIII (other than Individual Obligations) until the aggregate indemnification obligation obligations hereunder exceeds $50,000 in 1,000,000 (the aggregate “Deductible”) (provided thatPurchase Price adjustments pursuant to Sections 2.6, 2.7, 2.8 and 2.9 and any liability pursuant to Section 8.3 6.5, 6.6 or 6.7 shall not be subject to included in the $50,000 threshold)calculation of the Deductible, whereupon Seller the Sellers shall be liable for all amounts for which indemnification may be soughtsought solely to the extent in excess of the Deductible. For purposes of Section 8.1 or 8.5, any requirement in any representation or warranty of Parent or the Company that an event or fact be material or have a Material Adverse Effect, as appropriate, in order for such event or fact to constitute a misrepresentation or breach of such representation or warranty shall be ignored; provided, however, that no individual claim involving less than $25,000 or series of related claims involving less than $50,000 may be sought for indemnification by the Buyer Indemnified Parties and any such small claims shall not be applied to the Deductible or the Primary Cap. Notwithstanding the foregoing, in no event shall the aggregate liability of Seller the Sellers hereunder (including Sections 2.7 and 2.8) exceed $4,000,000 in (the aggregate“Primary Cap”) (except for any claims for breach of the representations, warranties and covenants of the Sellers under Sections 3.1(Due Authorization), 3.2 (Title to Shares), 3.4(b) or (c) (Subsidiaries), 3.6 (Capital Stock; Title to Shares), 3.7 (Convertible Securities, Options, Etc.
8.4.4), 3.13 (Taxes), 3.25 (Employee Benefits), 6.4 (Covenant Not to Compete), 6.5 (Additional Tax Matters) and the indemnity provisions of Sections 8.1(a)(B) or (D) and any claims for fraud). Buyer shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation to the Company or Seller hereunder exceeds $50,000 in the aggregate, whereupon Buyer shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in In no event shall the aggregate liability of the Parent and the Sellers to Buyer Indemnified Parties for breaches of Section 8.1(a)(B) and (D) in the aggregate exceed the amount equal to (x) $12,000,000 less (y) the aggregate amount of claims paid by Sellers under the Primary Cap. In no event shall the aggregate liability of (i) the Parent and the Sellers to the Buyer Indemnified Parties under this Section 8 Agreement and the Transaction Documents or Buyer and/or Global to any Seller Indemnified Party for indemnification under this Agreement and the Transaction Documents exceed $4,000,000 in 50,000,000 (the aggregate.
8.4.5“Cap”) other than claims for fraud and (ii) any Member to the Buyer Indemnified Parties under this Agreement and the other Transaction Documents exceed such member’s pro rata share of the Cap based on such Member’s share of the Purchase Price (excluding Funded Indebtedness) as if such amount was distributed to the Members immediately following the Closing pursuant to the terms of the Parent’s Organizational Documents and Governing Documents and further provided that such individual portion of the Cap shall not exceed the amount of the Purchase Price actually distributed to such Member or its transferees (this clause (ii), their “Pro Rata Limitation”). However, nothing in this Section 8 Article VIII shall limit Buyer or Seller the Sellers in exercising or securing any remedies or in the amount of damages that it can recover from the Sellers or Buyer in the event that Buyer or the Sellers successfully prove fraud by the other remedies provided by this Agreement in regard to a Party’s default or breach of connection with this Agreement.
8.4.6, including the Financial Statements or the Disclosure Schedules attached hereto; provided, however, that (i) no particular member of Parent shall be liable for the fraud of any other member of Parent and (ii) no particular member of Parent shall be liable for more than their Pro Rata Limitation for any fraud committed by Parent and/or the Companies unless Buyer successfully proves fraud by such member of Parent. Any settlement of a claim brought against an Indemnified Party must be consented to in writing by the Indemnified Party, and such consent shall not unreasonably be unreasonably withheld, provided, however, that the Parent shall have the absolute right to settle any and all claims to the extent that payment for such claim is made solely from the Escrow Sum. Neither Buyer nor Seller the Sellers shall be liable for punitive damages pursuant to any claim made by another Party party to this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Global Imaging Systems Inc)
Limits on Indemnification. All Indemnifiable Costs sought by any party hereunder shall be net of any insurance proceeds received by such Person with respect to such claim or tax benefits to the extent actually received by such Person as a result of an indemnified claim. Regardless of any investigation at any time made by or on behalf of any Party party hereto or of any information any Party party may have in respect thereof:
8.4.1. The , all covenants, agreements, representations, warrantiesand warranties and the related indemnities made hereunder or pursuant hereto or in connection with the transactions contemplated hereby shall survive the Closing for a period of eighteen (18) months, covenantsprovided (a) the representations, warranties and covenants contained in Sections 3.1 (Due Authorization), 3.6 (Capital Stock; Title to Shares), 3.7 (Convertible Securities, Options, Etc.), 3.13 (Taxes), 3.25 (Employee Benefits), 4.2 (Due Authorization), 4.4 (Investment), 4.9 (Issuance of Global Shares), 5.5 (Access), 6.1 (General), 6.2 (Transition), 6.3 (Confidentiality), 6.4 (Covenant Not to Compete), 6.5 (Additional Tax Matters), and agreements respectively made by Seller 6.7 (Shut Down Costs) and Buyer in Article VIII of this Agreement, in and the Disclosure Schedulerelated indemnities, or in as well as the right to make any certificate respectively delivered by Seller or Buyer pursuant to Section 7 will claim for fraud, shall survive the Closing and the Closing Date:
(a) With respect to the representations and warranties of the Parties set forth in Sections 3.1, 3.3, 4.1 and 4.2, indefinitely
(b) Until until the expiration of all the applicable statutes of limitations (including all periods of extensionfor determining or contesting tort or contract claims, whether automatic Tax liabilities or permissive) in fraud, as the case of may be; provided, however, that the representations and warranties of Seller respectively set forth indemnities provided in Sections 3.2Section 8.1(a)(B), 3.24, 3.26, 3.35 and 4.3;
(cC) Until or (D) shall in any event expire no later than the expiration of all applicable statutes of limitations (including all periods of extension, whether automatic or permissive; but excluding waiver or extension of the statute of limitation with respect to claims of fraud) in the case of the representations and warranties of Seller respectively set forth in Sections 3.13; and
(d) Until the eighteenth month fourth anniversary of the Closing Date Date, (b) the representations, warranties and covenants contained in Sections 3.2 (Title to Shares), and 3.4(b) and (c) (Subsidiaries) of this Agreement, and the case of related indemnities, shall survive the Closing indefinitely and not expire, and (c) all other representationscovenants set forth in Article VI which have specific expiration terms as set forth herein shall expire as of the dates set forth therein. Notwithstanding the foregoing, warranties, covenants, and agreements.
8.4.2. If a notice or demand for any indemnification is given in accordance with Section 8.2 before claims made prior to the expiration of the applicable time statute of limitations or period referenced aboveset forth in the preceding sentence, then (notwithstanding shall continue after such time period) the representation, warranty, covenant, or agreement applicable to such claim shall survive until, but only for purposes of, resolution of such claim.
8.4.3date until finally resolved. Seller The Sellers shall not be obligated to pay any amounts for indemnification under this Section 8 Article VIII (other than Individual Obligations) until the aggregate indemnification obligation obligations hereunder exceeds $50,000 in 1,000,000 (the aggregate “Deductible”) (provided thatPurchase Price adjustments pursuant to Sections 2.6, 2.7, 2.8 and 2.9 and any liability pursuant to Section 8.3 6.5, 6.6 or 6.7 shall not be subject to included in the $50,000 threshold)calculation of the Deductible, whereupon Seller the Sellers shall be liable for all amounts for which indemnification may be soughtsought solely to the extent in excess of the Deductible. For purposes of Section 8.1 or 8.5, any requirement in any representation or warranty of Parent or the Company that an event or fact be material or have a Material Adverse Effect, as appropriate, in order for such event or fact to constitute a misrepresentation or breach of such representation or warranty shall be ignored; provided, however, that no individual claim involving less than $25,000 or series of related claims involving less than $50,000 may be sought for indemnification by the Buyer Indemnified Parties and any such small claims shall not be applied to the Deductible or the Primary Cap. Notwithstanding the foregoing, in no event shall the aggregate liability of Seller the Sellers hereunder (including Sections 2.7 and 2.8) exceed $4,000,000 in (the aggregate“Primary Cap”) (except for any claims for breach of the representations, warranties and covenants of the Sellers under Sections 3.1(Due Authorization), 3.2 (Title to Shares), 3.4(b) or (c) (Subsidiaries), 3.6 (Capital Stock; Title to Shares), 3.7 (Convertible Securities, Options, Etc.
8.4.4), 3.13 (Taxes), 3.25 (Employee Benefits), 6.4 (Covenant Not to Compete), 6.5 (Additional Tax Matters) and the indemnity provisions of Sections 8.1(a)(B) or (D) and any claims for fraud). Buyer shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation to the Company or Seller hereunder exceeds $50,000 in the aggregate, whereupon Buyer shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in In no event shall the aggregate liability of the Parent and the Sellers to Buyer Indemnified Parties for breaches of Section 8.1(a)(B) and (D) in the aggregate exceed the amount equal to (x) $12,000,000 less (y) the aggregate amount of claims paid by Sellers under the Primary Cap. In no event shall the aggregate liability of (i) the Parent and the Sellers to the Buyer Indemnified Parties under this Section 8 Agreement and the Transaction Documents or Buyer and/or Global to any Seller Indemnified Party for indemnification under this Agreement and the Transaction Documents exceed $4,000,000 in 50,000,000 (the aggregate.
8.4.5“Cap”) other than claims for fraud and (ii) any Member to the Buyer Indemnified Parties under this Agreement and the other Transaction Documents exceed such member’s pro rata share of the Cap based on such Member’s share of the Purchase Price (excluding Funded Indebtedness) as if such amount was distributed to the Members immediately following the Closing pursuant to the terms of the Parent’s Organizational Documents and Governing Documents and further provided that such individual portion of the Cap shall not exceed the amount of the Purchase Price actually distributed to such Member or its transferees (their “Pro Rata Limitation”). However, nothing in this Section 8 Article VIII shall limit Buyer or Seller the Sellers in exercising or securing any remedies or in the amount of damages that it can recover from the Sellers or Buyer in the event that Buyer or the Sellers successfully prove fraud by the other remedies provided by this Agreement in regard to a Party’s default or breach of connection with this Agreement.
8.4.6, including the Financial Statements or the Disclosure Schedules attached hereto; provided, however, that (i) no particular member of Parent shall be liable for the fraud of any other member of Parent and (ii) no particular member of Parent shall be liable for more than their Pro Rata Limitation for any fraud committed by Parent and/or the Companies unless Buyer successfully proves fraud by such member of Parent. Any settlement of a claim brought against an Indemnified Party must be consented to in writing by the Indemnified Party, and such consent shall not unreasonably be unreasonably withheld, provided, however, that the Parent shall have the absolute right to settle any and all claims to the extent that payment for such claim is made solely from the Escrow Sum. Neither Buyer nor Seller the Sellers shall be liable for punitive damages pursuant to any claim made by another Party party to this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Global Imaging Systems Inc)
Limits on Indemnification. All Indemnifiable Costs sought by any party hereunder shall be net of any insurance proceeds received by such Person with respect to such claim or tax benefits to the extent actually received by such Person as a result of an indemnified claim. Regardless of any investigation at any time made by or on behalf of any Party hereto or of any information any Party may have in respect thereof:
8.4.1. The representations, warranties, covenants, and agreements respectively made by Seller and Buyer in this Agreement, in the Disclosure Schedule, or in any certificate respectively delivered by Seller or Buyer pursuant to Section 7 will survive the Closing and the Closing Date:
(a) With respect to the The representations and warranties of the Parties Covisint set forth in this Agreement will survive only for a period of two calendar years after the Closing Date, and any claim for indemnification under Section 9.1 must be asserted by notice to the Indemnifying Party within two calendar years after the Closing Date, or the same will be null and void; provided, however, that the representations, warranties and covenants made by Covisint under Sections 3.14.1, 3.34.20 and 4.21 shall survive indefinitely, 4.1 and 4.2the representations, indefinitely
warranties and covenants made by Covisint under Sections 4.12, 4.13(c) and (bl), and 6.1(f) Until and (g), 9.1 (with respect to Taxes), 9.6, and 10.13 of this Agreement (specifically relating to Taxes) will survive until sixty days after the expiration of all the applicable statutes of limitations (including all periods of extension, whether automatic any waivers or permissiveextensions) in the case on assessment and collection of the representations Tax to which such representation, warranty or covenant relates. If any claims for indemnification have been made pursuant to Sections 9.1, 9.6, and warranties 10.13 and the same are still pending or unresolved at the expiration of Seller respectively set forth in Sections 3.2the survival period, 3.24, 3.26, 3.35 and 4.3;such claims will continue to be subject to the indemnification provisions of this Agreement.
(b) Any covenant or agreement by the parties hereto which by its terms contemplates performance after the Closing Date will survive the Closing Date.
(c) Until the expiration of all applicable statutes of limitations (including all periods of extension, whether automatic or permissive; but excluding waiver or extension of the statute of limitation with respect to claims of fraud) in the case of the representations and warranties of Seller respectively set forth in Sections 3.13; and
(d) Until the eighteenth month anniversary of the Closing Date in the case of all other representations, warranties, covenants, and agreements.
8.4.2. If a notice or demand for indemnification is given in accordance with Section 8.2 before expiration of the applicable time period referenced above, then (notwithstanding such time period) the representation, warranty, covenant, or agreement applicable to such claim shall survive until, but only for purposes of, resolution of such claim.
8.4.3. Seller shall The Indemnifying Party will not be obligated to pay any amounts for indemnification indemnify the Claimant under this Section 8 Article 9 unless and until the aggregate of Losses for which indemnity is provided under Article 9 reaches Eighty Thousand Dollars ($80,000), in which event the Indemnifying Party will be obligated to indemnify the Claimant for the full amount of all Losses; provided, however, that the indemnification obligation hereunder exceeds threshold of $50,000 80,000 will not apply to the indemnification obligations related to a breach of Sections 4.1(a) and (b), 4.21, 6.1(a), 6.13 or 10.10 or indemnification obligations under Article 9 and 10.13 specifically relating to Taxes nor will any amounts paid in respect of Sections Article 9 and 10.13 specifically relating to Taxes reduce such indemnification threshold as the aggregate same may apply to any other claims for indemnification. In no event will an Indemnifying Party be obligated to indemnify a Claimant under Article 9 for Losses (provided that, any liability excluding Losses in connection with third party Claims relating to Proprietary Rights being transferred or purporting to be transferred pursuant to Section 8.3 shall not be subject to the this Agreement) in excess of four million dollars ($50,000 threshold), whereupon Seller shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Seller hereunder exceed $4,000,000 4,000,000) in the aggregate.
8.4.4. Buyer shall not be obligated (d) The Indemnified Party will use all reasonable efforts, consistent with normal practices and policies and good commercial practice, to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation mitigate such Losses.
(e) Notwithstanding anything herein to the Company contrary, Losses will not include special, indirect, consequential or Seller hereunder exceeds $50,000 punitive damages. Notwithstanding anything herein to the contrary, Losses will not include "lost profits" or "lost revenues", unless "lost profits" or "lost revenues" are included in the aggregate, whereupon Buyer shall be liable for all amounts for which indemnification may be soughtclaims of third parties against Buyer. Notwithstanding the foregoingpreceding sentence, in no event shall the aggregate liability for purposes of this Article 9, "lost profits" or "lost revenues" means a negative impact on future revenues or profits of Buyer under this Section 8 exceed $4,000,000 in the aggregate.
8.4.5. However, nothing in this Section 8 shall limit Buyer arising as an indirect or Seller in exercising or securing any other remedies provided by this Agreement in regard to secondary consequence of a Party’s default or breach of this Agreement.
8.4.6. Any settlement a representation, warranty, covenant or agreement but "lost profits" or "lost revenues" will be included in Losses to the extent they are the direct consequence of a claim brought against an Indemnified Party must be consented to in writing by the Indemnified Partybreach of a representation, and such consent shall not be unreasonably withheld. Neither Buyer nor Seller shall be liable for punitive damages pursuant to any claim made by another Party to this Agreementwarranty or covenant.
Appears in 1 contract
Limits on Indemnification. All Indemnifiable Costs sought by any party hereunder shall be net of any insurance proceeds received by such Person with respect to such claim or tax benefits to the extent actually received by such Person as a result of an indemnified claim. Regardless of any investigation at any time made by or on behalf of any Party hereto or of any information any Party may have in respect thereof:
8.4.1. The representations, warranties, covenants, and agreements respectively made by Seller and Buyer in this Agreement, in the Disclosure Schedule, or in any certificate respectively delivered by Seller or Buyer pursuant to Section 7 will survive the Closing and the Closing Date:
(a) With respect to the The representations and warranties of CACI and the Parties Subsidiaries set forth in Sections 3.1this Agreement will survive only for a period of one calendar year after the Closing Date, 3.3and any claim for indemnification under Section 9.1 must be asserted by notice to CACI within one calendar year after the Closing Date, 4.1 or the same will be null and 4.2void; provided, indefinitely
(b) Until however, that the representations, warranties and covenants made by CACI and the Subsidiaries under Section 4.15 will survive until sixty days after the expiration of all the applicable statutes of limitations (including all periods of extension, whether automatic any waivers or permissiveextensions) in the case on assessment and collection of the representations Tax to which such representation, warranty or covenant relates. If any claims for indemnification with respect to Taxes have been made pursuant to Sections 9.1 and warranties of Seller respectively set forth in Sections 3.2, 3.24, 3.26, 3.35 and 4.3;
(c) Until the same are still pending or unresolved at the expiration of all applicable statutes of limitations (including all periods of extensionthe survival period, whether automatic or permissive; but excluding waiver or extension of the statute of limitation with respect such claims will continue to claims of fraud) in the case of the representations and warranties of Seller respectively set forth in Sections 3.13; and
(d) Until the eighteenth month anniversary of the Closing Date in the case of all other representations, warranties, covenants, and agreements.
8.4.2. If a notice or demand for indemnification is given in accordance with Section 8.2 before expiration of the applicable time period referenced above, then (notwithstanding such time period) the representation, warranty, covenant, or agreement applicable to such claim shall survive until, but only for purposes of, resolution of such claim.
8.4.3. Seller shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation hereunder exceeds $50,000 in the aggregate (provided that, any liability pursuant to Section 8.3 shall not be subject to the $50,000 threshold), whereupon Seller shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Seller hereunder exceed $4,000,000 in the aggregate.
8.4.4. Buyer shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation to the Company or Seller hereunder exceeds $50,000 in the aggregate, whereupon Buyer shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Buyer under this Section 8 exceed $4,000,000 in the aggregate.
8.4.5. However, nothing in this Section 8 shall limit Buyer or Seller in exercising or securing any other remedies provided by this Agreement in regard to a Party’s default or breach provisions of this Agreement.
8.4.6(b) Any covenant or agreement by the parties hereto which by its terms contemplates performance after the Closing Date will survive the Closing Date, including the obligations and liabilities of CACI under Section 9.3.
(c) CACI will not be obligated to indemnify Compuware under Section 9.1 unless and until the aggregate of Losses for which indemnity is provided under such Section 9.1 reaches $250,000, in which event CACI will be obligated to indemnify Compuware for all applicable Losses in excess of the first $100,000 of all aggregate Losses; provided, however, that the indemnification threshold of $250,000 and the indemnification deductible of $100,000 will not apply to the indemnification obligations of Section 9.1 specifically relating to Taxes nor will any amounts paid in respect of Section 9.1 reduce such indemnification threshold or affect such indemnification deductible as the same may apply to any other claims for indemnification.
(d) If Compuware has received payment from the Indemnity Escrow Fund with respect to Losses pursuant to Sections 9.1 specifically relating to Taxes or any Losses pursuant to Section 9.1 resulting from a breach of the representation and warranties in Sections 4.6 and 4.15 (or any other Tax related provision of this Agreement) above or any Losses pursuant to Section 9.3 (collectively, the "Tax, IP and General Losses") and, thereafter, Compuware has received or is entitled to receive indemnification for other Losses ("Other Losses"), which, in the aggregate together with the Tax, IP and General Losses, exceed the Indemnity Escrow Cap, Compuware will nonetheless be entitled to collect from, and pursue, CACI for payment of, and CACI will pay to Compuware, (1) any Losses pursuant to Section 9.1 arising under the indemnification obligation with respect to Sections 4.6 and 4.15 (or any other provision of this Agreement specifically regarding Taxes), and any Losses pursuant to Section 9.3, to the extent unpaid and (2) any Other Losses up to the amount of the Indemnity Escrow Cap.
(e) Notwithstanding anything herein to the contrary, Losses will not include punitive damages. Any settlement Notwithstanding the preceding sentence, Losses will include amounts recoverable or recovered from Compuware by a third party (which third party will not include an affiliate of Compuware) which constitute punitive damages. Notwithstanding anything herein to the contrary, Losses will not include "lost profits" or "lost revenues", unless "lost profits" or "lost revenues" are included in claims of third parties against Compuware. Notwithstanding the preceding sentence, for purposes of this Article 9, "lost profits" or "lost revenues" means a negative impact on future revenues or profits of Compuware arising as an indirect or secondary consequence of a claim brought against breach of a representation, warranty, covenant or agreement but "lost profits" or "lost revenues" will be included in Losses to the extent they are the direct consequence of a breach of a representation, warranty or covenant.
(f) The parties agree that any indemnification payment made by CACI under Sections 9.1 or 9.3 to Compuware is an Indemnified Party must be consented adjustment to in writing by the Indemnified PartyPurchase Price, and they agree to consistently so treat any such consent shall payment on any Tax Return or claim for refund that they file, in any administrative or appeals procedure, judicial proceedings, or any other situation in which a characterization of such a payment is made.
(g) Each party hereby acknowledges and agrees that, from and after the Closing Date, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement will be pursuant to the provisions set forth in this Article 9, and that, with respect to the rights of Compuware pursuant to this Article 9 and the Indemnity Escrow Agreement, recovery from the Indemnity Escrow Fund will be the sole and exclusive remedy of Compuware for all Losses arising out of any breach of any of the representations, warranties, covenants or other obligations given or made by CACI in this Agreement or the Schedules hereto, or any certificates or written instruments delivered in connection herewith, except as provided in Section 9.3 or Section 9.6(d), and except for any claims based on fraud and/or Tax, IP and General Losses, for which Losses will not be unreasonably withheldso limited. Neither Buyer nor Seller shall be liable for punitive damages In furtherance of the foregoing, but subject to the exceptions set forth in the immediately proceeding sentence, each party hereby waives, from and after the Closing Date, to the fullest extent permitted under applicable law, any and all claims, rights and causes of action (other than claims of fraud and claims arising under this Article 9) it may have relating to the subject matter of this Agreement arising under or based upon any federal, state, local or foreign statute, law, ordinance, rule or regulation or otherwise.
(h) [omitted from original document]
(i) [omitted from original document]
(j) In determining the obligation of CACI to indemnify Compuware pursuant to this Article 9 or the Indemnity Escrow Agreement, all references in the Agreement or in any claim made by another Party certificates delivered in connection with this Agreement to this Agreementthe terms "material", "materiality", "Material Adverse Change", "Material Adverse Event" or variants thereof will be disregarded for the purpose of determining whether there has been any misrepresentation or breach of warranty, except for the representations and warranties contained in Section 4.16.
Appears in 1 contract
Samples: Asset Purchase Agreement (Caci International Inc /De/)
Limits on Indemnification. All Indemnifiable Costs sought by any party hereunder shall be net of any insurance proceeds received by such Person with respect to such claim or tax benefits Notwithstanding anything to the extent actually received by such Person as a result of an indemnified claim. Regardless of any investigation at any time made by or on behalf of any Party hereto or of any information any Party may have in respect thereof:
8.4.1. The representations, warranties, covenants, and agreements respectively made by Seller and Buyer contrary contained in this Agreement, in the Disclosure Schedule, or in any certificate respectively delivered by Seller or Buyer pursuant to Section 7 will survive the Closing and the Closing Date:
(a) With Sellers shall not have any obligation to provide indemnification for Losses with respect to any specific occurrence, event or circumstance giving rise to a right to be indemnified pursuant to Section 11.1 unless the amount of the claim giving rise to the right to be indemnified with respect to such specific occurrence, event or circumstance exceeds $50,000 (the "Basket Amount"). The maximum aggregate amount for which Sellers may be liable under this Article XI shall be limited to $8,800,000. The limitations set forth in this Section 11.4(a) shall not apply to the Sellers' obligation to provide indemnification for Losses relating to the Casas Litigation.
(b) Buyer shall not have any xxxxgation to provide indemnification for Losses pursuant to Section 11.2 arising out of or related to breaches of representations and warranties unless the aggregate amount of all such Losses pursuant to such Section exceeds the Basket Amount in which case Buyer shall be only liable to Sellers for the amount of such Losses that exceed the Basket Amount.
(c) Except for the representations and warranties of (i) Sellers contained in Sections 5.2, 5.4, 5.6 and 5.7, and (ii) Buyer contained in Sections 6.2 and 6.9, which representations and warranties shall survive the Parties Closing indefinitely, the respective representations of the Company, Sellers and Buyer contained in this Agreement shall survive the Closing for a period of six (6) months from the Closing Date and thereafter none of the Company, any Seller, Buyer, or any officer, director, employee, Affiliate or Related Party of the Company, any Seller or Buyer shall have any liability whatsoever (whether pursuant to this Agreement or otherwise) with respect to such representation or warranty. The six (6) month limitation set forth in Sections 3.1the preceding sentence shall not apply to the Sellers' obligation to provide indemnification for Losses relating to the Casas Litigation, 3.3, 4.1 and 4.2, indefinitely
(b) Until which shall survive until the expiration Casas Litigatiox has been completed without any additioxxx xights of all applicable statutes of limitations (including all periods of extension, whether automatic or permissive) in appeal by the case of the representations and warranties of Seller respectively set forth in Sections 3.2, 3.24, 3.26, 3.35 and 4.3;
(c) Until the expiration of all applicable statutes of limitations (including all periods of extension, whether automatic or permissive; but excluding waiver or extension of the statute of limitation with respect to claims of fraud) in the case of the representations and warranties of Seller respectively set forth in Sections 3.13; andparties thereto.
(d) Until Any payments made to Sellers, the eighteenth month anniversary Company or the Buyer pursuant to this Article XI shall constitute an adjustment of the Purchase Price for Tax purposes and shall be treated as such by the Buyer and Sellers on their Tax Returns.
(e) An Indemnifying Party shall not be liable under this Article XI for Losses resulting from any event relating to a breach of a representation or warranty if the Indemnifying Party can establish that the Indemnified Party had actual knowledge on or before the Closing Date in the case of all other representations, warranties, covenants, and agreementssuch event.
8.4.2. If a notice (f) Subject to the provisions of this Article XI and except as set forth in Section 3.8, an Indemnified Party's sole and exclusive remedy for Losses arising out of or demand resulting from breaches of representations and warranties set forth herein or pursuant hereto or for indemnification is given in accordance with Section 8.2 before expiration of the applicable time period referenced above, then (notwithstanding such time period) the representation, warranty, covenant, or agreement applicable to such claim Casas Litigation shall survive until, but only for purposes of, resolution of such claim.
8.4.3. Seller shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation hereunder exceeds $50,000 in the aggregate (provided that, any liability pursuant to Section 8.3 shall not be subject to the $50,000 threshold), whereupon Seller shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Seller hereunder exceed $4,000,000 in the aggregateArticle XI.
8.4.4. Buyer shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation to the Company or Seller hereunder exceeds $50,000 in the aggregate, whereupon Buyer shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Buyer under this Section 8 exceed $4,000,000 in the aggregate.
8.4.5. However, nothing in this Section 8 shall limit Buyer or Seller in exercising or securing any other remedies provided by this Agreement in regard to a Party’s default or breach of this Agreement.
8.4.6. Any settlement of a claim brought against an Indemnified Party must be consented to in writing by the Indemnified Party, and such consent shall not be unreasonably withheld. Neither Buyer nor Seller shall be liable for punitive damages pursuant to any claim made by another Party to this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Maverick Oil & Gas, Inc.)
Limits on Indemnification. All Indemnifiable Costs sought by (a) Sellers’ indemnification obligation under Section 14.04(b) shall only apply if Buyer has provided Sellers with written notice claiming indemnification within twelve (12) months of the Closing, except for (i) any party hereunder breach of Seller’s representations in Sections 5.01, 5.02, 5.03 and 5.04 (collectively, the “Fundamental Representations”) which shall survive Closing indefinitely, (ii) any breach of Section 5.08 and Section 5.20, which shall survive the Closing until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) any breach of Section 5.31, which shall survive Closing until sixty (60) days after the expiration of the applicable statute of limitations. The remainder of this Agreement (including Buyer’s representations and warranties in Article VI) shall survive the Closing indefinitely except as may otherwise be expressly provided herein. Representations, warranties, covenants and agreements shall be net of no further force and effect after the date of their expiration, provided that there shall be no termination of any insurance proceeds received by such Person bona fide claim asserted pursuant to this Agreement with respect to such claim a representation, warranty, covenant or tax benefits agreement prior to the extent actually received by such Person as a result of an indemnified claim. Regardless of any investigation at any time made by or on behalf of any Party hereto or of any information any Party may have in respect thereof:
8.4.1. The representations, warranties, covenants, and agreements respectively made by Seller and Buyer in this Agreement, in the Disclosure Schedule, or in any certificate respectively delivered by Seller or Buyer pursuant to Section 7 will survive the Closing and the Closing Date:
(a) With respect to the representations and warranties of the Parties set forth in Sections 3.1, 3.3, 4.1 and 4.2, indefinitelyits expiration date.
(b) Until the expiration of all applicable statutes of limitations (including all periods of extension, whether automatic or permissive) in the case of the representations and warranties of Seller respectively set forth in Sections 3.2, 3.24, 3.26, 3.35 and 4.3;
(c) Until the expiration of all applicable statutes of limitations (including all periods of extension, whether automatic or permissive; but excluding waiver or extension of the statute of limitation Other than with respect to claims the Fundamental Representations and Sections 5.08, 5.20 and 5.31, if the total amount of fraudall Losses that Buyer Indemnitees have the right to assert against Sellers under Section 14.04(b) in the case (“Buyer Losses”) does not exceed two percent (2%) of the representations and warranties Unadjusted Purchase Price (the “Basket”), then Sellers shall have no obligation under Section 14.04(b) with respect to any such Losses. If the total amount of Seller respectively set forth in Sections 3.13; and
(dall Buyer Losses exceeds the Basket, then Sellers’ obligations under Section 14.04(b) Until shall be limited to the eighteenth month anniversary amount by which the aggregate amount of all Buyer Losses exceeds the amount of the Closing Date in the case of all other representations, warranties, covenants, and agreementsBasket.
8.4.2. If a notice or demand for indemnification is given in accordance with Section 8.2 before expiration of the applicable time period referenced above, then (notwithstanding such time period) the representation, warranty, covenant, or agreement applicable to such claim shall survive until, but only for purposes of, resolution of such claim.
8.4.3. Seller shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation hereunder exceeds $50,000 in the aggregate (provided that, any liability pursuant to Section 8.3 shall not be subject to the $50,000 threshold), whereupon Seller shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Seller hereunder exceed $4,000,000 in the aggregate.
8.4.4. Buyer shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation to the Company or Seller hereunder exceeds $50,000 in the aggregate, whereupon Buyer shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Buyer under this Section 8 exceed $4,000,000 in the aggregate.
8.4.5. However, nothing in this Section 8 shall limit Buyer or Seller in exercising or securing any other remedies provided by this Agreement in regard to a Party’s default or breach of this Agreement.
8.4.6. Any settlement of a claim brought against an Indemnified Party must be consented to in writing by the Indemnified Party, and such consent shall not be unreasonably withheld. Neither Buyer nor Seller shall be liable for punitive damages pursuant to any claim made by another Party to this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Midstates Petroleum Company, Inc.)
Limits on Indemnification. All Indemnifiable Costs sought by (a) Sellers’ indemnification obligation under Section 14.04(b) shall only apply if Buyer has provided Sellers with written notice claiming indemnification within twelve (12) months of the Closing, except for (i) any party hereunder breach of Seller’s representations in Sections 5.01, 5.02, 5.03 and 5.04 (collectively, the “Fundamental Representations”) which shall survive Closing indefinitely, (ii) any breach of Section 5.08 and Section 5.20, which shall survive the Closing until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) any breach of Section 5.31, which shall survive Closing until sixty (60) days after the expiration of the applicable statute of limitations. The remainder of this Agreement (including Buyer’s representations and warranties in Article VI) shall survive the Closing indefinitely except as may otherwise be expressly provided herein. Representations, warranties, covenants and agreements shall be net of no further force and effect after the date of their expiration, provided that there shall be no termination of any insurance proceeds received by such Person bona fide claim asserted pursuant to this Agreement with respect to such claim a representation, warranty, covenant or tax benefits agreement prior to the extent actually received by such Person as a result of an indemnified claim. Regardless of any investigation at any time made by or on behalf of any Party hereto or of any information any Party may have in respect thereof:
8.4.1. The representations, warranties, covenants, and agreements respectively made by Seller and Buyer in this Agreement, in the Disclosure Schedule, or in any certificate respectively delivered by Seller or Buyer pursuant to Section 7 will survive the Closing and the Closing Date:
(a) With respect to the representations and warranties of the Parties set forth in Sections 3.1, 3.3, 4.1 and 4.2, indefinitelyits expiration date.
(b) Until Other than with respect to the expiration Fundamental Representations and Sections 5.08, 5.20 and 5.31, if the total amount of all applicable statutes of limitations Losses that Buyer Indemnitees have the right to assert against Sellers under Section 14.04(b) (including all periods of extension, whether automatic or permissive“Buyer Losses”) in the case does not exceed two percent (2%) of the representations and warranties Unadjusted Purchase Price (the “Basket”), then Sellers shall have no obligation under Section 14.04(b) with respect to any such Losses. If the total amount of Seller respectively set forth in Sections 3.2all Buyer Losses exceeds the Basket, 3.24, 3.26, 3.35 and 4.3;then Sellers’ obligations under Section 14.04(b) shall be limited to the amount by which the aggregate amount of all Buyer Losses exceeds the amount of the Basket.
(c) Until the expiration of all applicable statutes of limitations (including all periods of extension, whether automatic or permissive; but excluding waiver or extension of the statute of limitation Other than with respect to claims the Fundamental Representations and Sections 5.08, 5.20 and 5.31, the obligations of fraudSellers under Section 14.04(b) in the case shall be limited to twenty percent (20%) of the representations and warranties of Seller respectively set forth in Sections 3.13; andUnadjusted Purchase Price.
(d) Until In no event shall any Party be liable to any other Party or their respective indemnitees for any consequential or incidental damages or lost profits, unless the eighteenth month anniversary same are part of the Closing Date in the case of all other representations, warranties, covenants, and agreementsa Third Party claim for which a Party is seeking indemnification hereunder.
8.4.2. If a notice or demand for indemnification is given in accordance with Section 8.2 before expiration (e) For purposes of determining the applicable time period referenced above, then (notwithstanding such time period) the representation, warranty, covenant, or agreement applicable to such claim shall survive until, but only for purposes of, resolution amount of such claim.
8.4.3. Seller shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation hereunder exceeds $50,000 in the aggregate (provided that, any liability pursuant to Section 8.3 shall not Losses that may be subject to the $50,000 thresholdindemnification under Sections 14.03(b) or 14.04(b), whereupon the words “Seller Material Adverse Effect,” “material adverse effect,” “material,” “materially,” and words of similar import in the applicable representations and warranties shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Seller hereunder exceed $4,000,000 in the aggregatedisregarded.
8.4.4. Buyer shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation to the Company or Seller hereunder exceeds $50,000 in the aggregate, whereupon Buyer shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Buyer under this Section 8 exceed $4,000,000 in the aggregate.
8.4.5. However, nothing in this Section 8 shall limit Buyer or Seller in exercising or securing any other remedies provided by this Agreement in regard to a Party’s default or breach of this Agreement.
8.4.6. Any settlement of a claim brought against an Indemnified Party must be consented to in writing by the Indemnified Party, and such consent shall not be unreasonably withheld. Neither Buyer nor Seller shall be liable for punitive damages pursuant to any claim made by another Party to this Agreement.
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Samples: Purchase and Sale Agreement
Limits on Indemnification. All Indemnifiable Costs sought by (a) Sellers' indemnification obligation under Section 14.04(b) shall only apply if Buyer has provided Sellers with written notice claiming indemnification within twelve (12) months of the Closing, except for (i) any party hereunder breach of Seller's representations in Sections 5.01, 5.02, 5.03 and 5.04 (collectively, the “Fundamental Representations”) which shall survive Closing indefinitely, (ii) any breach of Section 5.08 and Section 5.20, which shall survive the Closing until sixty (60) days after the expiration of the applicable statute of limitations, and (iii) any breach of Section 5.31, which shall survive Closing until sixty (60) days after the expiration of the applicable statute of limitations. The remainder of this Agreement (including Buyer's representations and warranties in Article VI) shall survive the Closing indefinitely except as may otherwise be expressly provided herein. Representations, warranties, covenants and agreements shall be net of no further force and effect after the date of their expiration, provided that there shall be no termination of any insurance proceeds received by such Person bona fide claim asserted pursuant to this Agreement with respect to such claim a representation, warranty, covenant or tax benefits agreement prior to the extent actually received by such Person as a result of an indemnified claim. Regardless of any investigation at any time made by or on behalf of any Party hereto or of any information any Party may have in respect thereof:
8.4.1. The representations, warranties, covenants, and agreements respectively made by Seller and Buyer in this Agreement, in the Disclosure Schedule, or in any certificate respectively delivered by Seller or Buyer pursuant to Section 7 will survive the Closing and the Closing Date:
(a) With respect to the representations and warranties of the Parties set forth in Sections 3.1, 3.3, 4.1 and 4.2, indefinitelyits expiration date.
(b) Until Other than with respect to the expiration Fundamental Representations and Sections 5.08, 5.20 and 5.31, if the total amount of all applicable statutes of limitations Losses that Buyer Indemnitees have the right to assert against Sellers under Section 14.04(b) (including all periods of extension, whether automatic or permissive“Buyer Losses”) in the case does not exceed two percent (2%) of the representations and warranties Unadjusted Purchase Price (the “Basket”), then Sellers shall have no obligation under Section 14.04(b) with respect to any such Losses. If the total amount of Seller respectively set forth in Sections 3.2all Buyer Losses exceeds the Basket, 3.24, 3.26, 3.35 and 4.3;then Sellers' obligations under Section 14.04(b) shall be limited to the amount by which the aggregate amount of all Buyer Losses exceeds the amount of the Basket.
(c) Until the expiration of all applicable statutes of limitations (including all periods of extension, whether automatic or permissive; but excluding waiver or extension of the statute of limitation Other than with respect to claims the Fundamental Representations and Sections 5.08, 5.20 and 5.31, the obligations of fraudSellers under Section 14.04(b) in the case shall be limited to twenty percent (20%) of the representations and warranties of Seller respectively set forth in Sections 3.13; andUnadjusted Purchase Price.
(d) Until In no event shall any Party be liable to any other Party or their respective indemnitees for any consequential or incidental damages or lost profits, unless the eighteenth month anniversary same are part of the Closing Date in the case of all other representations, warranties, covenants, and agreementsa Third Party claim for which a Party is seeking indemnification hereunder.
8.4.2. If a notice or demand for indemnification is given in accordance with Section 8.2 before expiration (e) For purposes of determining the applicable time period referenced above, then (notwithstanding such time period) the representation, warranty, covenant, or agreement applicable to such claim shall survive until, but only for purposes of, resolution amount of such claim.
8.4.3. Seller shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation hereunder exceeds $50,000 in the aggregate (provided that, any liability pursuant to Section 8.3 shall not Losses that may be subject to the $50,000 thresholdindemnification under Sections 14.03(b) or 14.04(b), whereupon the words “Seller Material Adverse Effect,” “material adverse effect,” “material,” “materially,” and words of similar import in the applicable representations and warranties shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Seller hereunder exceed $4,000,000 in the aggregatedisregarded.
8.4.4. Buyer shall not be obligated to pay any amounts for indemnification under this Section 8 until the aggregate indemnification obligation to the Company or Seller hereunder exceeds $50,000 in the aggregate, whereupon Buyer shall be liable for all amounts for which indemnification may be sought. Notwithstanding the foregoing, in no event shall the aggregate liability of Buyer under this Section 8 exceed $4,000,000 in the aggregate.
8.4.5. However, nothing in this Section 8 shall limit Buyer or Seller in exercising or securing any other remedies provided by this Agreement in regard to a Party’s default or breach of this Agreement.
8.4.6. Any settlement of a claim brought against an Indemnified Party must be consented to in writing by the Indemnified Party, and such consent shall not be unreasonably withheld. Neither Buyer nor Seller shall be liable for punitive damages pursuant to any claim made by another Party to this Agreement.
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