Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount the Buyer Indemnified Parties may recover from Seller pursuant to the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limited. (b) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limited. (c) Without limiting the effect of any of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental Liabilities.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sirenza Microdevices Inc), Asset Purchase Agreement (Sirenza Microdevices Inc)
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, and (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof3.4 and 5.14 that are owed by Seller and which Buyer may become obligated to pay, the aggregate maximum aggregate amount the Buyer Indemnified Parties may recover from Seller pursuant to the indemnity set forth in Section 7.2 9.2 or otherwise for Losses Losses, or otherwise in respect of any breaches of any of the representations, warranties or covenants of Seller hereunder or in the Certificate of Seller, shall be limited to $3,412,500. 3,300,000.
(b) The maximum amount a Buyer an Indemnified Party may recover from Seller in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limited.
(b) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement Liabilities shall not be limited.
(c) Without limiting the effect of any of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall not be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties and to which any Indemnified Party is entitled to indemnification hereunder, or to which any one or more of the Seller Indemnified Parties, as the case may beParties has or have otherwise become subject with respect to which any Indemnified Party is entitled to indemnification hereunder, exceeds $250,000 (the “Deductible Amount”) 100,000 in the aggregate, at which point the Indemnifying Party Seller shall indemnify only the full amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding ARTICLE 9.
(d) The right of Parent and Buyer hereto and their related Indemnified Parties to assert indemnification claims and receive indemnification payments pursuant to this ARTICLE 9 shall be the sole and exclusive right and remedy exercisable by Parent and Buyer with respect to any provision breach by Seller of any representation, warranty or covenant hereunder or other matter with respect to which such indemnification is provided; provided, however, that the foregoing clause of this sentence shall not be deemed a waiver by any Indemnified Party of any right to specific performance or injunctive relief, or any right or remedy they may otherwise have against any Person that has committed fraud with respect to this Agreement.
(e) Nothing herein shall limit the liability of Seller, Buyer or Parent for any breach or inaccuracy of any representation, warranty or covenant contained in this Agreement to if the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental LiabilitiesClosing does not occur.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Be Inc), Asset Purchase Agreement (Be Inc)
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereofIf the Closing occurs, the maximum aggregate amount the Buyer all Parent Indemnified Parties may collectively recover from Seller the Company Shareholders pursuant to the indemnity set forth in Section 7.2 for Losses 9.02 shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches the Holdback Shares held by Seller of its covenants contained in this Agreement shall not be limitedthe Escrow Agent.
(b) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereofIf the Closing does not occur, the maximum aggregate amount that the Seller all Parent Indemnified Parties may collectively recover from Parent and Buyer in the aggregate under Company pursuant to the indemnity set forth in Section 7.2 for Losses 9.02, shall be limited to $3,412,500. The maximum a dollar amount a Seller Indemnified Party may recover from equal to the Parent Share Price multiplied by the Parent Shares, in each case calculated as of the date of expiration or Buyer in respect termination of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limitedas though such date were the Closing Date.
(c) Without limiting If the effect of any Closing occurs, the maximum amount all Company Indemnified Parties may collectively recover from Parent pursuant to the indemnity set forth in Section 9.02 shall be limited to a dollar amount equal to the Parent Share Price multiplied by the Holdback Shares as of the other limitations Closing Date.
(d) If the Closing does not occur, the maximum amount all Company Indemnified Parties may collectively recover from Parent pursuant to the indemnity set forth hereinin Section 9.02, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required limited to make any indemnification payment hereunder until such time a dollar amount equal to the Parent Share Price multiplied by the Parent Shares, in each case calculated as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties date of expiration or termination of this Agreement as though such date were the Seller Indemnified Parties, as the case may be, exceeds $250,000 Closing Date.
(the “Deductible Amount”e) Notwithstanding anything in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely no indemnification claims for Losses shall be asserted by the purpose of calculating the amounts payable by Seller to the Buyer Parent Indemnified Parties under this Article 7Section 9.02 or by the Company Indemnified Parties under Section 9.03 unless, in either case, (x) any individual Loss or group or series of related Losses under Section 9.02 or Section 9.03, as applicable, exceeds $100,000 (the “Deductible Basket Amount” ”), whereupon the Parent Indemnified Parties or the Company Indemnified Parties, as applicable, shall mean (i) $250,000 less (ii) the amount be entitled to receive only amounts for Losses in excess of the Identified Environmental LiabilitiesBasket Amount, subject to the limitations set forth herein.
Appears in 2 contracts
Samples: Merger Agreement (Helix TCS, Inc.), Merger Agreement (Helix TCS, Inc.)
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to as set forth in Section 2.8 7.3(b) hereof, the maximum aggregate amount the Buyer Indemnified Parties may recover from Seller pursuant to the indemnity set forth in Section 7.2 hereof for Losses shall be limited to $3,412,500the Escrow Fund. The maximum amount a Buyer Except as set forth in Section 7.3(b) and Section 7.4(e)(i) hereof, with respect to any claim for Losses incurred by an Indemnified Party may recover for any breach of any representation or warranty, covenant or agreement in this Agreement by the Company or any Shareholder such Indemnified Party shall seek indemnification solely from Seller the Escrow Fund and the indemnification provisions set forth in this Article VII shall be the sole and exclusive remedy of any Indemnified Party for any breach of any representation or warranty, covenant or agreement in this Agreement by the Company or any Shareholder. Nothing in this Agreement shall limit the right of Purchaser or any other Indemnified Party to pursue remedies under any Related Agreement against the parties thereto.
(b) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall limit the liability of any Person (and the Escrow Fund shall not be the exclusive remedy) in respect of Losses arising out of (Ai) any Excluded Liabilitiesfraud committed by such Person or any willful breach committed by such Person of any representation, (B) fraud warranty or fraudulent misrepresentation with respect to representations and warranties of Seller covenant contained in this Agreement or in any certificate certificates or other instruments delivered pursuant to this AgreementAgreement on the part of such Person or (ii) breach of any Related Agreements by such Person, and or (Ciii) willful breaches breach by Seller such Person of its covenants contained in this Agreement shall not be limited.
(b) Except with respect to (A) any Assumed Liabilities, (B) fraud representation or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity warranty set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect 2.2 (Company Capital Structure), Section 3.1 (Ownership of Losses arising out of Company Capital Stock) and Section 2.12 (ATax Matters) any Assumed Liabilitieshereof (clauses (i) through (iii) above collectively, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limited“Specified Breaches”).
(c) Without limiting Notwithstanding anything to the effect of any of the other limitations set forth contrary herein, except with respect to (A) the parties hereto agree and acknowledge that any amount Seller Indemnified Party may be required to pay hereunder with respect to Excluded Liabilities, and (B) bring a claim for indemnification for any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations Loss under this Article 7. Notwithstanding any provision VII notwithstanding the fact that such Indemnified Party had knowledge of this Agreement the breach, event or circumstance giving rise to such Loss prior to the contrary, solely for the purpose of calculating the amounts payable by Seller Closing or waived any condition to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental LiabilitiesClosing related thereto.
Appears in 1 contract
Maximum Payments; Remedy. (a) Except with respect to (Aas set forth in Sections 6.6(b) any Excluded Liabilities, (Band 6.6(c) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount the Buyer an Indemnified Parties Party may recover from Seller the Escrow Participants pursuant to the indemnity set forth in Section 7.2 for Losses 6.2 hereof shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller the Escrow Amount.
(b) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall limit the liability of any Person in respect of Losses arising out of any fraud committed by such Person (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations it is agreed and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, understood that the Survival Date and (C) willful breaches by Seller of its covenants contained in this Agreement the Threshold Amount shall not be limited.
(b) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer apply in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limitedsuch Losses).
(c) Without limiting Except as set forth in Section 6.6(b), the effect liability of the Escrow Participants in respect of Losses (i) based on fraud, (ii) incurred pursuant to clauses (iii), (iv), (v), (vi), (vii), (viii), (ix), (x) or (xi) of Section 6.2(a) hereof, and (iii) arising out of breaches of the representations and 105132706 v11 warranties contained in the Fundamental Representations and the Tax Representation, in each case, shall be limited to the portion of the Merger Consideration actually paid to such Escrow Participant (including, for the avoidance of doubt, such Escrow Participant’s Pro Rata Portion of any of the other limitations Future Payment). Except as set forth hereinin Section 6.6(b), in no event shall any Escrow Participant be obligated to indemnify the Indemnified Parties for any Losses pursuant to Section 6.2 hereof in excess of such Escrow Participant’s Pro Rata Portion of such Loss.
(d) In no event shall any Escrow Participant be responsible or liable for any Losses or other amounts under this Article VI that are punitive, special or any multiple of damages, except to the extent that such damages are awarded to a third party. Each party shall (and shall cause its affiliates to) use commercially reasonable efforts to pursue all legal rights and remedies available in order to minimize the Losses for which indemnification is provided to it under this Article VI.
(e) The amount of any Losses for which indemnification is provided under this Article VI shall be reduced by any related recoveries to which the Indemnified Party is entitled under insurance policies (net of any increase in any premium resulting therefrom) or other related payments received or receivable from third parties. An Indemnified Party shall use commercially reasonable efforts to pursue, and to cause its affiliates to pursue, any insurance claims to which it may be entitled in connection with any Losses it incurs. If an Indemnified Party (or an affiliate) receives any insurance payment in connection with any claim for Losses for which it has already received an indemnification payment from the Escrow Participants, it shall pay to the Escrow Participants, within ten (10) days of receiving such insurance payment, an amount equal to the excess of (i) the amount previously received by the Indemnified Party under this Article VI with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only claim plus the amount of the insurance payments received (after deducting any expenses incurred by such aggregate claims Indemnified Party in excess of the Deductible Amount and all resolved claims thereaftersecuring such insurance payments), subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less over (ii) the amount of Losses with respect to such claim which the Identified Environmental LiabilitiesIndemnified Party has become entitled to receive under this Article VI.
Appears in 1 contract
Samples: Draft Agreement (Rovi Corp)
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to as set forth in Section 2.8 7.3(b) hereof, the maximum aggregate amount the Buyer an Indemnified Parties Party may recover from Seller a Stockholder individually pursuant to the indemnity set forth in Section 7.2 7.2(a)(i) hereof for Losses shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller such Stockholder’s Pro Rata Portion of the Escrow Fund.
(b) Notwithstanding anything to the contrary set forth in respect this Agreement, in the event of Losses arising out of the Specified Representations, each Stockholder shall be liable for (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement the Escrow Fund shall not be limited.
the exclusive remedy for) all such Losses, but only up to such Stockholder’s Pro Rata Portion of $12,500,000 (b) Except with respect such Stockholder’s Pro Rata Portion of the Escrow Fund as the first source of payment subject to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect the limitations and other applicable provisions hereof). Notwithstanding anything to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained the contrary set forth in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under event of Losses relating to the indemnity items set forth in Section 7.2 for Losses Sections 7.2(a)(ii)-(vi) nothing shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limited.
(c) Without limiting limit the effect liability of any of the other limitations set forth hereinPerson (including any Stockholder) for any such Loss; provided that, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding notwithstanding any provision of this Agreement to the contrary, solely no Company Option holder shall have any liability for any matter related to the purpose Spinoff Transaction or the Spinoff License or any item set forth in Section 7.2(a)(vi) (and the pro rata portion of liability of each other Stockholder shall be proportionately increased).
(c) In calculating the amounts payable by Seller amount due to an Indemnified Party hereunder but not in determining whether the Buyer Indemnified Parties under this Article 7breach occurred, in the “Deductible Amount” shall mean (i) $250,000 less (ii) event of any breach or inaccuracy of a representation or warranty, for purposes of determining the amount of any Loss no effect will be given to any qualification as to “materiality,” a “Company Material Adverse Effect” or “Knowledge” contained therein.
(d) Notwithstanding anything to the Identified Environmental Liabilitiescontrary herein, the parties hereto agree and acknowledge that any Indemnified Party may bring a claim for indemnification for any Loss under this ARTICLE VII notwithstanding the fact that such Indemnified Party had knowledge of the breach, event or circumstance giving rise to such Loss prior to the Closing or waived any condition to the Closing related thereto.
(e) Notwithstanding anything to the contrary herein, nothing shall prohibit Parent from seeking and obtaining recourse against the Stockholders, or any of them, in the event that Parent issues more than the Merger Consideration to which the Stockholders, or any of them, are entitled pursuant to ARTICLE I of this Agreement.
(f) Parent acknowledges and agrees that its sole and exclusive monetary remedy from and after the Closing with respect to any and all claims for any breach of any representation, warranty, covenant, agreement or obligation set forth in this Agreement or any Related Agreement or otherwise relating to the subject matter hereof or thereof shall be pursuant to the provisions of this ARTICLE VII.
Appears in 1 contract
Samples: Merger Agreement (Taleo Corp)
Maximum Payments; Remedy. (a) Except There shall be no recovery for claims under Section 9.02(a)(i) unless and until the aggregate amount of Losses of the Indemnified Parties that may be claimed thereunder exceeds $350,000 (the “Threshold”), and once the Threshold has been reached, the Indemnified Parties shall be entitled to recover the full amount of all Losses that would otherwise be limited by the Threshold but subject to the other limitations herein, including those which comprised any portion of the Threshold; provided, however, that the foregoing limitation on recovery for claims under Section 9.02(a)(i) shall not apply with respect to any Losses incurred or sustained in connection with or as a result of (Ai) a breach of any Fundamental Representation, (ii) a breach of any representation or warranty contained in Section 4.08 (Tax Matters) or (to the extent relating to Taxes) Section 4.13 (Employee Benefit Plans) or (to the extent relating to Taxes) Section 4.19 (Employees), or (iii) any Excluded Liabilitiesclaims involving actual fraud, and such Losses to which the Threshold does not apply shall not count towards satisfaction of the Threshold.
(Bb) fraud or fraudulent misrepresentation In addition, there shall be no recovery for claims under Section 9.02(a)(i) with respect to any individual item or matter, or items or matters arising out of substantially similar facts and circumstances, unless and until the aggregate amount of Losses of the Indemnified Parties that may be claimed thereunder with respect to such item(s) or matter(s) exceeds $75,000 (the “De Minimis Amount”), and once the De Minimis Amount has been reached for such item(s) or matter(s), the Indemnified Parties shall be entitled to recover the full amount of all Losses with respect to such item(s) or matter(s) that would otherwise be limited by the De Minimis Amount but subject to the other limitations herein, including those which comprised any portion of the De Minimis Amount; provided, however, that the foregoing limitation on recovery for claims under Section 9.02(a)(i) shall not apply with respect to any Losses incurred or sustained in connection with or as a result of (i) a breach of any Fundamental Representation, (ii) a breach of any representation or warranty contained in Section 4.08 (Tax Matters) or (to the extent relating to Taxes) Section 4.13 (Employee Benefit Plans) or (to the extent relating to Taxes) Section 4.19 (Employees) or (iii) any claims involving actual fraud, and such Losses to which the De Minimis Amount does not apply shall not count towards satisfaction of the De Minimis Amount for any other Losses to which the De Minimis Amount does apply.
(c) Subject to Section 9.03(d), the maximum amount that the Indemnified Parties may recover from each Stockholder under this Article IX (or, with respect to actual fraud, whether or not under this Article IX) shall be limited as follows:
(i) With respect to Indemnifiable Matters under Section 9.02(a)(i) (other than with respect to Fundamental Representations or the representations and warranties in Section 4.06(b) or to the extent they arise from actual fraud), to an amount (when aggregated with recovery from all other Stockholders) equal to the Cap Amount;
(ii) With respect to all Indemnifiable Matters under Section 9.02(a) or claims for actual fraud (other than the Indemnifiable Matter under Section 9.02(a)(v) and other than as set forth in Section 9.03(d)), the total proceeds, if any, received by such Stockholder in connection with the Merger and the other transactions contemplated hereby;
(iii) With respect to Indemnifiable Matters under Section 9.02(a)(v), an amount equal to the total proceeds, if any, received by such Stockholder in connection with the Merger and the other transactions contemplated hereby. For the avoidance of Seller doubt, (x) the maximum recovery imposed by the preceding clauses (ii) and (iii) are independent from one another, (y) recoveries by the Indemnified Parties with respect to Indemnifiable Matters under Section 9.02(a)(v) shall not reduce the amounts that may be recovered in respect of Indemnifiable Matters addressed under, and shall be disregarded in determining whether the maximum recovery imposed by, the preceding clause (ii) has been exceeded, and (z) recoveries by the Indemnified Parties with respect to Indemnifiable Matters other than under Section 9.02(a)(v) shall not reduce the amounts that may be recovered in respect of Indemnifiable Matters addressed under, and shall be disregarded in determining whether the maximum recovery imposed by the preceding clause (iii) has been exceeded.
(d) Notwithstanding anything to the contrary herein (including Section 9.03(c)), with respect to Indemnifiable Matters involving (i) acts of actual fraud on behalf of the Company by Onex, Onex Corporation, any of their respective Affiliates or Subsidiaries or any of their respective officers, directors or employees (other than the Company and its Subsidiaries and other portfolio companies directly or indirectly owned by Onex and any individuals who are affiliated with Onex or Onex Corporation solely as a result of their capacity as directors, officers or employees of the Company or its Subsidiaries or such portfolio companies), or (ii) actual knowledge by Onex, Onex Corporation, any of their respective Affiliates or Subsidiaries or any of their respective officers, directors or employees (other than the Company and its Subsidiaries and other portfolio companies directly or indirectly owned by Onex and any individuals who are affiliated with Onex or Onex Corporation solely as a result of their capacity as directors, officers or employees of the Company or its Subsidiaries or such portfolio companies) of acts of actual fraud by or on behalf of the Company, then in each case, those Stockholders that are Subsidiaries or Affiliates of Onex or Onex Corporation (other than other portfolio companies directly or indirectly owned by Onex and other than those individuals who are affiliated with Onex or Onex Corporation solely as a result of their capacity as directors, officers or employees of the Company or its Subsidiaries or such other portfolio companies), or are or are beneficially owned by directors, officers or employees thereof, shall severally and not jointly indemnify and hold harmless the Indemnified Parties against all Losses incurred or sustained by any of the Indemnified Parties (including the Surviving Corporation) in connection with or as a result of such actual fraud, and there shall be no limitation on the maximum amount of recovery from such Stockholders with respect to such Losses.
(e) Notwithstanding anything herein to the contrary, the Stockholders shall not be liable for, and shall have no obligation to indemnify the Indemnified Parties against, any Losses attributable to Taxes of the Purchaser or any of its Affiliates with respect to any taxable period (or portion thereof, determined in accordance with the principles set forth in the definition of Pre-Cutoff Straddle Period Taxes) beginning after the Closing Date other than in respect of any breach of the representations set forth in Section 4.08(c), clause (i) of Section 4.08(e), and Section 4.08(f).
(f) Nothing in this Article IX shall limit the liability, if any, of any party hereto for any breach of any representation, warranty, covenant or agreement contained in this Agreement or in any certificate delivered pursuant to this Agreement, Related Agreement if the Merger does not close.
(Cg) willful breaches by Seller None of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount Purchaser or the Buyer other Indemnified Parties may recover from Seller pursuant to avoid the indemnity limitations on liability set forth in Section 7.2 this Article IX by seeking damages for Losses shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller in respect breach of Losses arising out of (A) any Excluded Liabilitiescontract, (B) fraud tort or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreementany other theory of liability, and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limited.
(b) Except with respect to (A) any Assumed Liabilitiesthe Purchaser, (B) fraud or fraudulent misrepresentation with respect to representations for itself and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limited.
(c) Without limiting the effect of any of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as hereby waives, from and after the case may beClosing, exceeds $250,000 (to the “Deductible Amount”) in the aggregatefullest extent permitted under applicable Law, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount any and all resolved rights, claims thereafter, and causes of action it may have against the Stockholders and their Affiliates relating (directly or indirectly) to the subject to matter of this Agreement arising under or based upon any other applicable limitations under this Article 7. Notwithstanding any provision of Law or otherwise; provided that notwithstanding anything in this Agreement to the contrary, solely for nothing in this Agreement shall limit the purpose rights or remedies of calculating the amounts payable by Seller Purchaser or any other Indemnified Party in the event of actual fraud, except as expressly set forth in Sections 9.03(c) or 9.03(d). Notwithstanding anything to the Buyer Indemnified Parties contrary contained in this Agreement, the Purchaser shall have no right to indemnification hereunder with respect to any Loss to the extent such Loss is included in the Indebtedness Adjustment. Notwithstanding anything to the contrary herein, no Person may bring a claim for indemnification under this Article 7IX, other than the Purchaser, on behalf of the Indemnified Parties.
(h) For the avoidance of doubt, if and solely to the extent the amount of a Loss is recovered by an Indemnified Party through the actual payment of a Payable Claim to such Indemnified Party, the “Deductible Amount” same amount of such Loss may not be recovered again by such Indemnified Party by reason of such Loss being subject to indemnification under more than one provision of this Agreement, but the amount, if any, of Loss that exceeds the amount already recovered shall mean be recoverable on and subject to the terms and conditions of this Article IX.
(i) $250,000 less (ii) Notwithstanding anything in this Article IX to the amount of contrary, if an Indemnified Party’s claim under this Article IX may be properly characterized in multiple ways in accordance with this Article IX such that such claim may or may not be subject to different caps, time limitations, baskets, and other limitations depending on such characterization, then such Indemnified Party shall have the Identified Environmental Liabilitiesright to characterize such Indemnifiable Matter in a manner that maximizes the recovery and time to assert claims permitted in accordance with this Article IX.
Appears in 1 contract
Maximum Payments; Remedy. (a) Except with respect Subject to (ASection 7.5(d) any Excluded Liabilities, (Bhereof and except as set forth in -------------- Section 7.5(c) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount the Buyer an Indemnified Parties Party may recover from Seller -------------- the Indemnifying Securityholders pursuant to the indemnity set forth in Section 7.2 ------- 7.2(a) hereof for Losses will be limited, in the case of Element K and EK ------ Holdings, to the Escrow Cash, and in the case of the Principal Shareholders, to a dollar amount (or, in the case of any Founder, a number of Exchangeable Shares as set forth below) equal to the aggregate proceeds (as calculated based on an Exchangeable Share per share price of US$28.00) received by such Principal Shareholder in the Acquisition (excluding any Escrow Shares which have not been released from the Escrow Fund and excluding any Exchangeable Shares issued to any Founder which constitute, as of the applicable date, "Unvested Shares" (as defined in such Founder's Repurchase Agreement)). In the event that an Indemnified Party shall be limited seek to $3,412,500. The recover from any Founder pursuant to the indemnity set forth in Section Founder may satisfy such recovery first by delivering to the Indemnified Party a number of Exchangeable Shares (excluding any Escrow Shares which have not been released from the Escrow Fund and excluding any Exchangeable Shares issued to any Founder which constitute, as of the applicable date, "Unvested Shares" (as defined in such Founder's Repurchase Agreement)) having a value as calculated based on an Exchangeable Share per share price of US$28.00, and second by the payment of the applicable amount of cash.
(b) Subject to Section 7.5(d) and except as set forth in Section -------------- ------- 7.5(c) hereof, the maximum amount a Buyer an Indemnified Party may recover from Seller any ------ Indemnifying Securityholder directly in respect of Individual Securityholder Losses pursuant to the indemnity set forth in Section 7.2(b) hereof will be -------------- limited to a dollar amount equal to the aggregate proceeds (as calculated based on an Exchangeable Share per share price of US$28.00) received by such Indemnifying Securityholder in the Acquisition (excluding any Escrow Shares which have not been released from the Escrow Fund and excluding any Exchangeable Shares issued to any Founder which constitute, as of the applicable date, "Unvested Shares" (as defined in such Founder's Repurchase Agreement)).
(c) Nothing herein will limit the liability of any Indemnifying Securityholder in respect of Losses arising out of (A) any Excluded Liabilitiesknowing, (B) fraud intentional or fraudulent misrepresentation with respect to breaches or inaccuracies of the representations and warranties or breach of Seller covenants ("Fraud") on the part of such Indemnifying Securityholder.
(d) Nothing herein will limit the liability of the Company or the Indemnifying Securityholders for any breach or inaccuracy of any representation, warranty or covenant contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement shall if the Acquisition does not be limitedclose.
(b) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limited.
(c) Without limiting the effect of any of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental Liabilities.
Appears in 1 contract
Maximum Payments; Remedy. (a) Except with respect Notwithstanding anything to (A) the contrary in this ARTICLE VIII, an Indemnified Party shall not be entitled to indemnification hereunder for any Excluded Liabilities, (B) fraud breach or fraudulent misrepresentation with respect to representations and warranties inaccuracy of Seller a representation or warranty of the Company contained in this Agreement or in any certificate or other instruments delivered by or on behalf of the Company pursuant to this AgreementAgreement until such time as Losses arising out of or attributable to any such breaches exceed $100,000 in the aggregate, (C) willful breaches and in which case all Losses theretofore incurred by Seller of its covenants contained Parent shall be subject to the indemnification set forth in this AgreementARTICLE VIII from the first dollar. For the avoidance of doubt, and this threshold shall not apply to Losses arising out of or attributable to Shareholders' Claims.
(Db) Taxes referred to Except as set forth in Section 2.8 SECTION 8.5(C) hereof, the maximum aggregate amount the Buyer an Indemnified Parties Party may recover from Seller a Shareholder individually pursuant to the indemnity set forth forth, and only set forth, in Section 7.2 SECTION 8.2(I) hereof for Losses shall be limited to $3,412,500. The a dollar amount equal to the Earnout Amounts payable but not yet paid to such Shareholder pursuant to ARTICLE IX of this Agreement, and the maximum amount a Buyer an Indemnified Party may recover from Seller in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered a Shareholder individually pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limited.
(b) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth forth, and only set forth, in Section 7.2 SECTION 8.2(II) hereof for Losses shall be limited to $3,412,500a dollar amount equal to the Component Two Consideration and Earnout Amounts payable but not yet paid to such Shareholder. The maximum amount a Seller From and after the date hereof, the provisions of this ARTICLE VIII shall represent the sole remedy of the Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation Parties with respect to representations and warranties any breach or alleged breach of this Agreement by the Company.
(c) Nothing herein shall limit the liability of the Company or Parent for any intentional breach or Buyer inaccuracy of any representation, warranty or covenant contained in this Agreement or any Related Agreement (or any Shareholder that is a party to a Related Agreement for any intentional breach or inaccuracy of any representation, warranty or covenant by such Shareholder contained in such Related Agreement), or for any certificate delivered pursuant to this Agreementbreach or inaccuracy of any representation, and (C) willful breaches by either Parent warranty or Buyer of its covenants covenant contained in this Agreement shall not be limited.
or any Related Agreement relating to facts the Company or Parent, respectively, should have known after diligent inquiry (c) Without limiting the effect or any Shareholder that is a party to a Related Agreement for any breach or inaccuracy of any of representation, warranty or covenant contained in such Related Agreement relating to facts the other limitations set forth hereinShareholder should have known after diligent inquiry), except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as if the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental LiabilitiesMerger does not close.
Appears in 1 contract
Maximum Payments; Remedy. (a) Except with respect Notwithstanding anything to (A) the contrary in this ARTICLE VIII, an Indemnified Party shall not be entitled to indemnification hereunder for any Excluded Liabilities, (B) fraud breach or fraudulent misrepresentation with respect to representations and warranties inaccuracy of Seller a representation or warranty of the Company contained in this Agreement or in any certificate or other instruments delivered by or on behalf of the Company pursuant to this AgreementAgreement until such time as Losses arising out of or attributable to any such breaches exceed $100,000 in the aggregate, (C) willful breaches and in which case all Losses theretofore incurred by Seller of its covenants contained Parent shall be subject to the indemnification set forth in this Agreement, and ARTICLE VIII from the first dollar.
(Db) Taxes referred to Except as set forth in Section 2.8 SECTION 8.5(c) hereof, the maximum aggregate amount the Buyer an Indemnified Parties Party may recover from Seller a Shareholder individually pursuant to the indemnity set forth forth, and only set forth, in Section 7.2 SECTION 8.2 hereof for Losses shall be limited to $3,412,500a dollar amount equal to the Earnout Amounts payable but not yet paid to such Shareholder pursuant to ARTICLE IX of this Agreement. The maximum amount a Buyer From and after the date hereof, the provisions of this ARTICLE VIII shall represent the sole remedy of the Indemnified Party may recover from Seller in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation Parties with respect to representations and warranties any breach or alleged breach of Seller this Agreement by the Company.
(c) Nothing herein shall limit the liability of the Company or Parent for any intentional breach or inaccuracy of any representation, warranty or covenant contained in this Agreement or in any certificate delivered pursuant Related Agreement (or any Shareholder that is a party to this Agreementa Related Agreement for any intentional breach or inaccuracy of any representation, and (C) willful breaches warranty or covenant by Seller of its covenants such Shareholder contained in this Agreement shall not be limited.
(b) Except with respect to (A) such Related Agreement), or for any Assumed Liabilitiesbreach or inaccuracy of any representation, (B) fraud warranty or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer covenant contained in this Agreement or in any certificate delivered pursuant Related Agreement relating to this Agreementfacts the Company or Parent, respectively, should have known after diligent inquiry (C) willful breaches by either Parent or Buyer any Shareholder that is a party to a Related Agreement for any breach or inaccuracy of its covenants any representation, warranty or covenant contained in this Agreementsuch Related Agreement relating to facts the Shareholder should have known after diligent inquiry), and (D) Taxes referred to in Section 2.8 hereof, if the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall Merger does not be limitedclose.
(c) Without limiting the effect of any of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental Liabilities.
Appears in 1 contract
Samples: Merger Agreement (Scansoft Inc)
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to as set forth in Section 2.8 7.3(b) hereof, the maximum aggregate amount the Buyer an Indemnified Parties Party may recover from Seller a Stockholder individually pursuant to the indemnity set forth in Section 7.2 hereof for Losses shall be limited to $3,412,500such Stockholder’s pro rata contribution to the Escrow Fund, which shall be the sole source of payment for claims for indemnification under this Agreement. The maximum amount a Buyer Except as set forth in Section 7.3(b) and subject to the availability of equitable remedies under Section 9.6 hereof, following the Closing, the indemnity obligation set forth in Section 7.2 shall be the sole and exclusive remedy of any Indemnified Party may recover from Seller for any Losses or claims for damages against the Company, any Stockholder, the Stockholder Representative, and their respective officers, directors, affiliates, employees, agents and representatives arising under or relating to this Agreement (but not including any Related Agreement); provided, that the Newco Group liability under the Related Agreements is not hereby limited.
(b) Notwithstanding anything to the contrary set forth in respect this Agreement, in the event of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent intentional misrepresentation by any Person (other than Parent and its affiliates) who is a party hereto or a Stockholder in connection with respect to representations and warranties of Seller contained in this Agreement or in any certificate certificates or other instruments delivered pursuant to this Agreement, then each Stockholder and the Newco Group shall be liable for all such Losses, in the case of a Stockholder, up to the full amount of the Total Consideration received by such Stockholder, and in the case of the Newco Group, up to $2,500,000, provided that all such Losses shall (x) first be claimed against the Escrow Fund, as provided in Section 7.4, (y) to the extent the Escrow Fund has been fully paid out or the full amount of the Escrow Fund set aside for other claims and Stockholder Representative Expenses, be claimed against the Newco Group, jointly and severally, and (Cz) willful breaches by Seller of its covenants contained to the extent the Newco Group is unable to fully indemnify for such Loss, be claimed against the Stockholders; provided further that nothing in this Agreement shall not be limitedlimit the liability of any Person (including any Stockholder or the Newco Group) for any such Losses if such Person perpetrated such fraud or intentional misrepresentation or had actual knowledge of the same.
(bc) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained Nothing in this Agreement Article VII shall limit the liability of the Company for any breach by the Company of any representation, warranty or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants covenant contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate certificates or other instruments delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall if the Merger does not be limitedclose.
(cd) Without limiting Notwithstanding anything to the effect of any of the other limitations set forth contrary herein, except with respect to (A) the parties hereto agree and acknowledge that any amount Seller Indemnified Party may be required to pay hereunder with respect to Excluded Liabilities, and (B) bring a claim for indemnification for any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations Loss under this Article 7. Notwithstanding any provision VII notwithstanding the fact that such Indemnified Party had knowledge of this Agreement the breach, event or circumstance giving rise to such Loss prior to the contrary, solely for the purpose of calculating the amounts payable by Seller Closing or waived any condition to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental LiabilitiesClosing related thereto.
Appears in 1 contract
Samples: Merger Agreement (Harmonic Inc)
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to as set forth in Section 2.8 7.3(b) hereof, the maximum aggregate amount the Buyer an Indemnified Parties Party may recover from Seller a Stockholder individually pursuant to the indemnity set forth in Section 7.2 hereof for Losses shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller such Stockholder’s Pro Rata Portion of the Escrow Fund.
(b) Notwithstanding anything to the contrary set forth in respect this Agreement, in the event of Losses arising out of (Ai) the Specified Representations, or (ii) any Excluded Liabilitiesfraud, gross negligence or willful misconduct by any Person (B) fraud other than Parent and its affiliates), gross negligence or fraudulent misrepresentation with respect to representations and warranties willful misconduct resulting in a breach or inaccuracy of Seller any representation, warranty or covenant contained in this Agreement Agreement, or in any certificate certificates or other instruments delivered pursuant to this Agreement, each Stockholder shall be liable for (and the Escrow Fund shall not be the exclusive remedy for) all such Losses, but in the case of (Ci) willful breaches only up to the full amount of the Merger Consideration received by Seller of its covenants contained such Stockholder, provided further that nothing in this Agreement shall not limit the liability of any Person (including any Stockholder) for any such Losses if such Person perpetrated such fraud, gross negligence or willful misconduct. Notwithstanding anything contained herein to the contrary, no Stockholder shall be limited.
(b) Except with respect to (A) liable for any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity items set forth in on Section 7.2 for Losses shall be limited 7.3(b) of the Disclosure Schedule as such items relate to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilitiestax years beginning with the tax year commencing on February 1, (B) fraud or fraudulent misrepresentation with respect to representations 2004 and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limitedthereafter.
(c) Without limiting Notwithstanding anything to the effect of any of the other limitations set forth contrary herein, except with respect to (A) the parties hereto agree and acknowledge that any amount Seller Indemnified Party may be required to pay hereunder with respect to Excluded Liabilities, and (B) bring a claim for indemnification for any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations Loss under this Article 7. VII notwithstanding the fact that such Indemnified Party had knowledge of the breach, event or circumstance giving rise to such Loss prior to the Closing, except where Parent has waived a condition to Closing.
(d) Notwithstanding anything to the contrary herein, nothing shall prohibit Parent from seeking and obtaining recourse against the Stockholders, or any provision of them, in the event that Parent issues more than the Merger Consideration to which the Stockholders, or any of them, are entitled pursuant to Article I of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental LiabilitiesAgreement.
Appears in 1 contract
Maximum Payments; Remedy. (a) Except as set forth in Section 7.7(b) and Section 7.7(c) hereof, (i) the Escrow Fund shall be the sole and exclusive remedy of the Parent Indemnified Parties with respect to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount the Buyer Indemnified Parties may recover from Seller all indemnification claims pursuant to the indemnity set forth in Section 7.2 7.2(i), Section 7.2(iii) and Section 7.2(iv) hereof for Losses, and (ii) the maximum amount a Parent Indemnified Party may recover from a Stockholder individually pursuant to the indemnity set forth in Section 7.2(i), Section 7.2(iii) and Section 7.2(iv) hereof for Losses shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller the amounts held in the Escrow Fund with respect to such Stockholder.
(b) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall limit the liability of the Stockholders in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to breaches of the representations and warranties contained in Section 2.2 (Company Capital Structure) and Section 2.11 (Tax Matters) hereof.
(c) Nothing herein shall limit the liability of Seller either party for any material breach or inaccuracy of any representation, warranty or covenant contained in this Agreement or any Related Agreement if the Merger does not close.
(d) Except as set forth in any certificate delivered Section 7.7(c) hereof, (i) this Section 7.7(d) shall be the sole and exclusive remedy of the Stockholder Indemnified Parties with respect to all indemnification claims pursuant to the indemnity set forth in Section 7.3(i) hereof for Losses, and (ii) the maximum amount, in the aggregate, the Stockholder Indemnified Parties may recover from Parent and Sub pursuant to the indemnity set forth in Section 7.3(i) hereof for Losses shall be limited to the Equity Consideration Value.
(e) Notwithstanding anything to the contrary set forth in this Agreement, and (Ci) willful nothing in this Agreement shall limit the liability of the Stockholders or Parent in respect of Losses arising out of breaches by Seller of its any covenants contained in this Agreement shall not be limited.
(b) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (Cii) willful breaches a Parent Indemnified Party shall be entitled to recover for, and neither the Basket nor the Deductible shall apply as a threshold to, any and all claims or payments for Losses incurred as a result of any failure by either Parent the Company or Buyer of its covenants the Stockholders to perform or comply with any covenant, including Section 5.16 hereof, applicable to it contained in this Agreement, and (Diii) Taxes referred a Stockholder Indemnified Party shall be entitled to in recover for, and neither the Basket nor the Deductible shall apply as a threshold to, any and all claims or payments for Losses incurred as a result of any failure by Parent to perform or comply with any covenant, including Section 2.8 5.16 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited applicable to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer it contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limited.
(c) Without limiting the effect of any of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental Liabilities.
Appears in 1 contract
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to as set forth in Section 2.8 8.5(b), Section 8.5(c) and Section 8.5(d) hereof, the maximum aggregate amount the Buyer an Indemnified Parties Party may recover from Seller a Shareholder individually pursuant to the indemnity set forth in Section 7.2 8.2 above for Losses shall be limited to an amount equal to such Shareholder's Pro Rata Portion of $3,412,5002,000,000 of the Escrow Amount. The maximum amount a Buyer An Indemnified Party may Party's ability to recover from Seller for Excess Liabilities pursuant to Section 8.6 below shall not be limited in such manner.
(b) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall limit the liability of any Shareholder (and the Escrow Fund shall not be the exclusive remedy) in respect of Losses arising out of (A) any Excluded Liabilities, (B) common law fraud or fraudulent misrepresentation with respect to representations and warranties on the part of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limited.
(b) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500such Shareholder. The maximum amount a Seller Indemnified Party may parties further acknowledge that Parent shall recover any Losses resulting from Parent any common law fraud by any Shareholder, either from the Escrow Fund or Buyer in respect of Losses arising out of (A) any Assumed Liabilitiesdirectly from such Shareholders, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limitedat Parent's sole election.
(c) Without limiting Notwithstanding anything to the effect contrary set forth in this Agreement, the liability of any Shareholder shall not be limited to and the Escrow Fund shall not be the exclusive remedy for any common law fraud committed by the Company prior to the Closing. The parties further acknowledge that Parent shall recover any Losses resulting from any common law fraud committed by the Company prior to the Closing, either from the Escrow Fund or directly from such Shareholder, at Parent's sole election (the Shareholder shall be jointly and severally liable for any common law fraud by the Company).
(d) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall limit the liability of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties Company or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely Shareholders for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less any breach or inaccuracy of the representations and warranties set forth in Section 3.1(b) (Company Capital Structure), Section 3.4 (Authority), Section 3.10 (Tax Matters), Section 3.22 (Environmental Matters), Section 3.29 (Spreadsheet), and Article IV (Representations and Warranties of the Shareholders); or (ii) any indemnity obligations arising under clauses (b) - (d) of Section 8.2 above; or (iii) any payments due Parent under Section 8.6 below; provided, however, that with regard to any non-common law fraud and non-knowing and intentional breach or inaccuracy the amount representations and warranties set forth in Section 3.1(b) (Company Capital Structure), Section 3.4 (Authority), Section 3.10 (Tax Matters), Section 3.29 (Spreadsheet), and Article IV (Representations and Warranties of the Identified Environmental LiabilitiesShareholders), any indemnification obligations arising under clauses (b) - (d) of Section 8.2 above, or any liability for Excess Liabilities under Section 8.6 below, Parent shall recover any such Losses first from the Escrow Fund and then directly from the Shareholders (the Shareholders shall be jointly and severally liable for all such liabilities).
Appears in 1 contract
Maximum Payments; Remedy. (a) Except with respect to (Aas set forth in Sections 8.4(b) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount the Buyer an Indemnified Parties Party may recover from Seller the Sellers pursuant to the indemnity set forth in Section 7.2 for Losses 8.2 hereof shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller the Stock Consideration valued at such time as set forth in respect of Losses arising out of subsection (Ad) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limitedhereof.
(b) Except with respect Notwithstanding anything to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained the contrary set forth in this Agreement, and (D) Taxes referred to nothing in Section 2.8 hereof, this Agreement shall limit the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer liability of any Person in respect of Losses arising out of (Ai) any Assumed Liabilitiesbased on fraud, intentional misrepresentation or willful breach and (Bii) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered incurred pursuant to this Agreement, and clause (Cd) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limitedSection 8.2 hereof.
(c) Without limiting In the effect of event any of Indemnified Party is entitled to recover Losses pursuant to this Article 8 directly from any Seller, such seller shall have the other limitations set forth herein, except with respect right to (A) any amount Seller may elect that such recovery be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer satisfied in whole or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as part by the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more cancellation of the Buyer Common Stock held by such Seller valued as set forth in subsection (d) hereof, provided that if such Seller fails to make such election (by notice in writing to Buyer) within five days following the determination that Losses are required to be paid in accordance with this Agreement, Buyer shall have the right to elect whether such recovery shall be satisfied in whole or in part by the cancellation of Buyer Common Stock held by such Seller. Upon determination in accordance with this Agreement that Buyer Common Stock shall be cancelled to pay any portion of Losses owed by a Seller, such Seller shall take all reasonable action requested by Buyer to effect the cancellation of such shares, including Seller returning the stock certificate evidencing such shares to Buyer. Notwithstanding the foregoing, upon determination in accordance with this Agreement that an Indemnified Parties Party is entitled to recover Buyer Common Stock, Buyer shall be entitled to cancel on its books any stock certificate evidencing such shares and, upon such cancellation, such shares shall cease to be outstanding.
(d) For purposes of this Article 8, the deemed value of each share of Buyer Common Stock shall be the fair market value at the time such Losses become finally due as agreed by the parties or the Seller Indemnified Partiesby final adjudication by relevant tribunal, as determined in good faith by the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount Buyer’s Board of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental LiabilitiesDirectors.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sensei Biotherapeutics, Inc.)
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to as set forth in Section 2.8 8.3(b) hereof, the maximum aggregate amount the Buyer an Indemnified Parties Party may recover from Seller a Principal Shareholder or from a Principal Shareholder Affiliate, individually pursuant to the indemnity set forth in Section 7.2 8.2(a)(i) hereof for Losses shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller such Principal Shareholder’s or such Principal Shareholder Affiliate’s Pro Rata Portion of the Merger Consideration.
(b) Notwithstanding anything to the contrary set forth in respect this Agreement, in the event of Losses arising out of the Specified Representations, each Principal Shareholder and Principal Shareholder Affiliate shall be liable for (Aand the Escrow Fund shall not be the exclusive remedy for) any Excluded Liabilitiesall such Losses, but only up to such Principal Shareholder’s and Principal Shareholder Affiliate’s Pro Rata Portion of the Merger Consideration (B) fraud or fraudulent misrepresentation with respect such Principal Shareholder’s and Principal Shareholder Affiliate’s Pro Rata Portion of the Escrow Shares as the first source of payment). Notwithstanding anything to representations and warranties of Seller contained the contrary set forth in this Agreement or in any certificate delivered pursuant to this Agreement, and in the event of Losses relating to the items set forth in Sections 8.2(a)(ii)-(xi), nothing shall limit the liability of any Person (Cincluding any Principal Shareholder or Principal Shareholder Affiliate) willful breaches by Seller of its covenants contained in this Agreement shall not be limitedfor any such Loss.
(bc) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained Nothing in this Agreement Article VIII shall limit the liability of the Company or in any certificate delivered pursuant Principal Shareholder, Security Holder or Affiliate thereof who is a party to this AgreementAgreement for any breach of any representation, (C) willful breaches by either Parent warranty or Buyer of its covenants covenant contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement Related Agreements or in any certificate certificates or other instruments delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall if the Merger does not be limitedclose.
(cd) Without limiting Notwithstanding anything to the effect contrary herein, the parties hereto agree and acknowledge that any Indemnified Party may bring a claim for indemnification for any Loss under this Article VIII notwithstanding the fact that such Indemnified Party had knowledge of the breach, event or circumstance giving rise to such Loss prior to the Closing or waived any condition to the Closing related thereto.
(e) Notwithstanding anything to the contrary herein, nothing shall prohibit Parent from seeking and obtaining recourse against the Security Holders, or any of them, in the event that Parent issues more than the Merger Consideration to which the Security Holders, or any of them, are entitled pursuant to Article I of this Agreement.
(f) Upon a reasonable request by the Indemnifying Party, each Indemnified Party seeking indemnification hereunder in respect of any of the other limitations set forth hereinclaim directly by an Indemnified Party not involving a Third Party Claim or any claim involving a Third Party Claim, except hereby agrees to consult with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only and act reasonably to take actions reasonably requested by the Indemnifying Party in order to attempt to reduce the amount of Losses in respect of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7claim. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” Any costs or expenses associated with taking such actions shall mean (i) $250,000 less (ii) the amount of the Identified Environmental Liabilitiesbe included as Losses hereunder.
Appears in 1 contract
Maximum Payments; Remedy. (a) Except with respect to (Aas set forth in Sections 7.6(b), 7.6(c) any Excluded Liabilities, (Band 7.6(d) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount the Buyer an Indemnified Parties Party may recover from Seller a Stockholder individually pursuant to the indemnity set forth in Section 7.2 hereof for Losses shall be limited to: (i) the amounts held in the Escrow Fund with respect to such Stockholder, and (ii) to the extent of any Excess Losses, such Stockholder’s Escrow Pro Rata Portion of such Excess Losses (not to exceed such Stockholder’s Consideration Pro Rata Portion of the first $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller 4,500,000 of Earnout Consideration earned, whether or not yet paid to such Stockholder pursuant to ARTICLE VIII of this Agreement.
(b) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall limit the liability of any party in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to any intentional breaches of representations and warranties or covenants on the part of Seller contained such party (it is agreed and understood that the Survival Date and the Threshold Amount shall not apply in this Agreement respect of any such Losses); provided, however, that the maximum amount an Indemnified Party may recover from each Stockholder individually in respect of any such fraud or intentional breach shall be limited to such Stockholder’s Escrow Pro Rata Portion of the Loss attributable to such fraud or intentional breach, not to exceed such Stockholder’s Consideration Pro Rata Portion of the Merger Consideration actually received (including, without duplication, the amount contributed to the Escrow on behalf of such Stockholder).
(c) Notwithstanding anything to the contrary set forth in any certificate delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained nothing in this Agreement shall not be limited.
(b) Except with limit the liability of the Stockholders in respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to of Losses arising out of breaches of the representations and warranties of Parent or Buyer contained in this Agreement Section 2.2 or in any certificate delivered pursuant to this AgreementSection 2.11; provided, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreementhowever, and (D) Taxes referred to in Section 2.8 hereof, that the maximum aggregate amount that the Seller an Indemnified Parties Party may recover from Parent and Buyer in the aggregate under each Stockholder individually pursuant to the indemnity set forth in Section 7.2 for Losses in respect of any such breach shall be limited to $3,412,500. The maximum such Stockholder’s Escrow Pro Rata Portion of the Loss attributable to such breach, not to exceed such Stockholder’s Consideration Pro Rata Portion of the Merger Consideration actually received (including, without duplication, the amount a Seller Indemnified Party may recover from Parent contributed to the Escrow on behalf of such Stockholder).
(d) Nothing herein shall limit the liability of the Company for any breach or Buyer in respect inaccuracy of Losses arising out of (A) any Assumed Liabilitiesrepresentation, (B) fraud warranty or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer covenant contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Related Agreement shall if the Merger does not be limitedclose.
(ce) Without limiting From and after the effect Closing, the sole and exclusive liability and responsibility of any of each Stockholder to Parent and the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under or in connection with this Article 7Agreement or the transactions contemplated hereby (including for any breach of or inaccuracy in any representation or warranty or for any breach of any covenant or obligation or for any other reason), the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental Liabilitiesbe as set forth in this ARTICLE VII.
Appears in 1 contract
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount the Buyer Indemnified Parties may recover from Seller pursuant to the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Buyer An applicable Purchaser Indemnified Party may recover from Seller in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limited.
(bentitled to any recovery resulting from Section 8.2(a)(i) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limited.
(c) Without limiting the effect of any of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time (if at all) as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer such Purchaser Indemnified Parties exceeds $400,000 in the aggregate (the “Tipping Basket”); and in such event, the Purchaser Indemnified Parties shall, subject to the limitations set forth in the remaining subsections of this Section 8.3, be entitled to be indemnified against and compensated and reimbursed to the extent of all Losses from the first dollar thereof; provided, that the limitations set forth in this Section 8.3(a) shall not apply to any indemnification claims relating to (i) Fraud (or an allegation that would amount to Fraud in the case of a third-party claim) or (ii) any breach (or an allegation that would amount to a breach in the case of a third-party claim) of any Seller Fundamental Representation or any Tax Representation.
(b) The maximum amount of Losses for which the Beneficial Sellers (the “Seller Indemnifying Parties”) shall be obligated to indemnify the Purchaser Indemnified Parties, in the aggregate, for all claims under Section 8.2(a)(i) of this Agreement shall not exceed $7,500,000 (the “General Representation Cap”); provided, that the General Representation Cap shall not apply to any indemnification claims relating to (i) Fraud (or an allegation that would amount to Fraud in the case of a third-party claim) or (ii) any breach (or an allegation that would amount to a breach in the case of a third-party claim) of any Seller Fundamental Representation, Tax Representation, or IP Representation. In the case of any breach (or an allegation that would amount to a breach in the case of a third-party claim) of any IP Representation, the maximum amount that the Purchaser Indemnified Parties may recover from each Seller Indemnifying Party shall be limited to such Seller Indemnifying Party’s Pro Rata Share of $15,000,000 (the “Indemnifying Seller IP Cap”); provided, that the Indemnifying Seller IP Cap shall not apply to any indemnification claims relating to Fraud (or an allegation that would amount to Fraud in the case of a third-party claim). In the case of any breach (or an allegation that would amount to a breach in the case of a third-party claim) of any Seller Fundamental Representation or any Tax Representation, the maximum amount that the Purchaser Indemnified Parties may recover from each Seller Indemnifying Party shall be limited to such Seller Indemnifying Party’s Pro Rata Share of the Purchase Price (including any amounts in the Indemnification Escrow Fund and such Seller Indemnifying Party’s Pro Rata Share of the Earnout Consideration) and the Promised Optionholder Transaction Bonuses (the “Indemnifying Seller Cap”); provided, that the Indemnifying Seller Cap shall not apply to any indemnification claims relating to Fraud (or an allegation that would amount to Fraud in the case of a third-party claim).
(c) Absent Fraud or Willful Breach by the Company, any Seller or any of their respective authorized representatives (including pursuant to Section 8.2(a)(iv), Section 8.2(a)(v) or Section 8.2(b)(iii)), the maximum amount that the Purchaser Indemnified Parties may recover from each Seller Indemnifying Party under Section 8.2(a) and Section 8.2(b) shall be limited to such Seller Indemnifying Party’s Indemnifying Seller Cap.
(d) For the avoidance of doubt, (i) if and solely to the extent the amount of a Loss is recovered by an Indemnified Party through the actual payment of a Payable Claim to such Indemnified Party, the same amount of such Loss may not be recovered again by such Indemnified Party by reason of such Loss being subject to indemnification under more than one provision of this Agreement and (ii) if and solely to the extent that a Loss in connection with an Indemnifiable Matter was expressly taken into account in connection with calculations of the Estimated Closing Statement pursuant to Section 2.3 (as finally determined pursuant to Section 2.3(b)), the same amount of such Loss may not be recovered under this Article VIII, but, in the case of the immediately preceding clauses (i) and (ii), the amount, if any, of Loss that exceeds the amount already recovered under clause (i) or already taken into account under clause (ii) shall be recoverable on and subject to the terms and conditions of this Article VIII.
(e) The Purchaser Indemnified Parties’ right to indemnification pursuant to this Article VIII on account of any Losses will be reduced by all insurance of the Company or other third party indemnification or contribution proceeds actually received by the Company in respect of those Losses, net of applicable costs and expenses involved in seeking such recovery (including increases in premiums relating thereto). The applicable Purchaser Indemnified Parties shall remit to the Seller Entity (for further distribution by the Seller Entity to the Beneficial Sellers), for the benefit of the applicable Beneficial Seller, any such insurance or other third-party proceeds that are paid to such Indemnified Parties with respect to such Losses for which such Purchaser Indemnified Parties have been previously indemnified pursuant to this Article VIII.
(f) Notwithstanding anything contained herein to the contrary, nothing herein shall limit the recovery amount against the Purchaser or the Seller Indemnifying Parties (together, the “Indemnifying Parties”), as applicable, or remedies available to an Indemnified Party, for Fraud or Willful Breach by the Company, the Sellers or any of their respective authorized representatives (including pursuant to Section 8.2(a)(iv), Section 8.2(a)(v) or Section 8.2(b)(iii)) or the Purchaser or any of its authorized representatives (including pursuant to Section 8.2(c)(iii)), as applicable.
(g) The maximum amount of Losses for which the Purchaser shall be obligated to indemnify the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point for all claims under Section 8.2(c) shall not exceed the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, $7,500,000 (the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental LiabilitiesIndemnifying Purchaser Cap”).
Appears in 1 contract
Maximum Payments; Remedy. (a) Except From and after the Closing, recourse of Parent and the other Indemnified Parties to the Escrow Amount pursuant to this Agreement shall be the sole and exclusive remedy of Parent and the other Indemnified Parties for recovery of Losses under the indemnification provisions contained in Section 6.2(a)(i) (it being understood that nothing in this Section 6.3(a) or elsewhere in this Agreement shall affect Parent’s rights to specific performance or other equitable remedies with respect to the covenants referred to in this Agreement to be performed after the Closing). Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall limit the liability of any Indemnifying Party, and the Escrow Amount shall not be the exclusive remedy, in respect of (i) Losses (A) any Excluded Liabilities, arising out of the Indemnifiable Matters described in clauses (ii) through (x) of Section 6.2(a) or (B) fraud or fraudulent misrepresentation with respect to representations and warranties any Fundamental Matter, or (ii) Losses arising out of Seller contained in fraud, any intentional misrepresentation or intentional or willful breach of or related to this Agreement Agreement, any Certificate, the Spreadsheet or in any certificate other instrument delivered pursuant to this Agreement (such Losses described in components (i) and (ii) of the foregoing sentence, collectively, the “Outside Escrow Matters”), in which case the liability of the Indemnifying Parties shall be several and not joint and the maximum amount that the Indemnified Parties may recover from each Indemnifying Party for such Losses shall be limited to an amount equal to the amount of the Total Consideration received by such Indemnifying Party pursuant to Section 1.7; provided, however, that the Escrow Amount shall be the first source of indemnification for any claims arising out of the Outside Escrow Matters, and no such claims may be satisfied against an Indemnifying Party until the Escrow Amount has been exhausted; provided, further that in no event shall an Indemnified Party be entitled to recover for the same Loss under more than one clause of Section 6.2; provided, further, that there shall be no limitation on the amount that the Indemnified Parties may recover from an Indemnifying Party for Losses arising out of any fraud, intentional misrepresentation or intentional or willful breach committed by such Indemnifying Party of or related to this Agreement, any Certificate, the Spreadsheet or other instrument delivered committed by such Indemnifying Party pursuant to this Agreement.
(Cb) Nothing in this Article VI shall limit the Liability of Parent, Sub I, Sub II or the Company for any willful breaches by Seller breach of its covenants any representation or warranty contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount the Buyer Indemnified Parties may recover from Seller pursuant to the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud Certificate or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate other instrument delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement shall if the First Merger does not be limited.
(b) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limitedclose.
(c) Without Notwithstanding anything to the contrary set forth in this Agreement, the parties hereto agree and acknowledge that any Indemnified Party may bring a claim for indemnification for any Loss under this Article VI notwithstanding the fact that such Indemnified Party had knowledge of the breach, event or circumstance giving rise to such Loss prior to the Closing or waived any condition to the Closing related thereto (other than knowledge arising directly out of the disclosures explicitly set forth in the Disclosure Schedule, provided, that such disclosures are not qualified as being disclosed for informational purposes or otherwise described as not limiting the effect Indemnified Parties’ rights to indemnification pursuant to this Agreement). The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification based on such representations, warranties, covenants and obligations).
(d) Except as set forth in the second sentence of this Section 6.3(d), an Indemnified Party may not recover any Losses under Section 6.2(a)(i) hereof unless and until one or more Officer’s Certificates identifying such Losses under Section 6.2(a)(i) hereof in excess of $1,200,000 in the aggregate (the “Basket”) has or have been delivered to the Escrow Agent and the Stockholder Representative as provided in Section 6.4(a) hereof, and such amount is payable in accordance with this Article VI, at which time such Indemnified Party shall be entitled to recover all Losses so identified in full from the first dollar (including the amount of the other limitations set forth herein, except Basket). The provisions of this Section 6.3(d) shall not apply to any and all claims or payments made with respect to (A) any amount Seller may be required to pay hereunder all Losses incurred with respect to Excluded Liabilities, and the Outside Escrow Matters or the matters set forth on Schedule 6.2(a)(xi) hereto.
(Be) Notwithstanding any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilitiesother provision of this Agreement, no Indemnifying Party shall be required to make indemnify any indemnification Indemnified Party pursuant to this Article VI for any Losses to the extent that any Indemnified Party actually receives proceeds from insurance to pay such Losses, net of costs and expenses incurred in connection with the collection of such amounts; provided, however, that no Indemnified Party shall be required to seek any insurance or maintain any such insurance policies or other coverage. The Indemnified Party shall promptly refund any amount it actually receives (net of costs and expenses, incurred in connection with the collection of such amount) pursuant to the preceding sentence from insurance to the extent it actually receives such amount after payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental LiabilitiesParty.
Appears in 1 contract
Samples: Merger Agreement (Linkedin Corp)
Maximum Payments; Remedy. (a) Except There shall be no recovery for claims under Section 9.02(a)(i) unless and until the aggregate amount of Losses of the Indemnified Parties that may be claimed thereunder exceeds $350,000 (the “Threshold”), and once the Threshold has been reached, the Indemnified Parties shall be entitled to recover the full amount of all Losses that would otherwise be limited by the Threshold but subject to the other limitations herein, including those which comprised any portion of the Threshold; provided, however, that the foregoing limitation on recovery for claims under Section 9.02(a)(i) shall not apply with respect to any Losses incurred or sustained in connection with or as a result of (Ai) a breach of any Fundamental Representation, (ii) a breach of any representation or warranty contained in Section 4.08 (Tax Matters) or (to the extent relating to Taxes) Section 4.13 (Employee Benefit Plans) or (to the extent relating to Taxes) Section 4.19 (Employees), or (iii) any Excluded Liabilitiesclaims 68 involving actual fraud, and such Losses to which the Threshold does not apply shall not count towards satisfaction of the Threshold.
(Bb) fraud or fraudulent misrepresentation In addition, there shall be no recovery for claims under Section 9.02(a)(i) with respect to any individual item or matter, or items or matters arising out of substantially similar facts and circumstances, unless and until the aggregate amount of Losses of the Indemnified Parties that may be claimed thereunder with respect to such item(s) or matter(s) exceeds $75,000 (the “De Minimis Amount”), and once the De Minimis Amount has been reached for such item(s) or matter(s), the Indemnified Parties shall be entitled to recover the full amount of all Losses with respect to such item(s) or matter(s) that would otherwise be limited by the De Minimis Amount but subject to the other limitations herein, including those which comprised any portion of the De Minimis Amount; provided, however, that the foregoing limitation on recovery for claims under Section 9.02(a)(i) shall not apply with respect to any Losses incurred or sustained in connection with or as a result of (i) a breach of any Fundamental Representation, (ii) a breach of any representation or warranty contained in Section 4.08 (Tax Matters) or (to the extent relating to Taxes) Section 4.13 (Employee Benefit Plans) or (to the extent relating to Taxes) Section 4.19 (Employees) or (iii) any claims involving actual fraud, and such Losses to which the De Minimis Amount does not apply shall not count towards satisfaction of the De Minimis Amount for any other Losses to which the De Minimis Amount does apply.
(c) Subject to Section 9.03(d), the maximum amount that the Indemnified Parties may recover from each Stockholder under this Article IX (or, with respect to actual fraud, whether or not under this Article IX) shall be limited as follows:
(i) With respect to Indemnifiable Matters under Section 9.02(a)(i) (other than with respect to Fundamental Representations or the representations and warranties in Section 4.06(b) or to the extent they arise from actual fraud), to an amount (when aggregated with recovery from all other Stockholders) equal to the Cap Amount; (ii) With respect to all Indemnifiable Matters under Section 9.02(a) or claims for actual fraud (other than the Indemnifiable Matter under Section 9.02(a)(v) and other than as set forth in Section 9.03(d)), the total proceeds, if any, received by such Stockholder in connection with the Merger and the other transactions contemplated hereby; (iii) With respect to Indemnifiable Matters under Section 9.02(a)(v), an amount equal to the total proceeds, if any, received by such Stockholder in connection with the Merger and the other transactions contemplated hereby. For the avoidance of Seller doubt, (x) the maximum recovery imposed by the preceding clauses (ii) and (iii) are independent from one another, (y) recoveries by the Indemnified Parties with respect to Indemnifiable Matters under Section 9.02(a)(v) shall not reduce the amounts that may be recovered in respect of Indemnifiable Matters addressed under, and shall be disregarded in determining whether the maximum recovery imposed by, the preceding clause (ii) has been exceeded, and (z) recoveries 69 by the Indemnified Parties with respect to Indemnifiable Matters other than under Section 9.02(a)(v) shall not reduce the amounts that may be recovered in respect of Indemnifiable Matters addressed under, and shall be disregarded in determining whether the maximum recovery imposed by the preceding clause (iii) has been exceeded.
(d) Notwithstanding anything to the contrary herein (including Section 9.03(c)), with respect to Indemnifiable Matters involving (i) acts of actual fraud on behalf of the Company by Onex, Onex Corporation, any of their respective Affiliates or Subsidiaries or any of their respective officers, directors or employees (other than the Company and its Subsidiaries and other portfolio companies directly or indirectly owned by Onex and any individuals who are affiliated with Onex or Onex Corporation solely as a result of their capacity as directors, officers or employees of the Company or its Subsidiaries or such portfolio companies), or (ii) actual knowledge by Onex, Onex Corporation, any of their respective Affiliates or Subsidiaries or any of their respective officers, directors or employees (other than the Company and its Subsidiaries and other portfolio companies directly or indirectly owned by Onex and any individuals who are affiliated with Onex or Onex Corporation solely as a result of their capacity as directors, officers or employees of the Company or its Subsidiaries or such portfolio companies) of acts of actual fraud by or on behalf of the Company, then in each case, those Stockholders that are Subsidiaries or Affiliates of Onex or Onex Corporation (other than other portfolio companies directly or indirectly owned by Onex and other than those individuals who are affiliated with Onex or Onex Corporation solely as a result of their capacity as directors, officers or employees of the Company or its Subsidiaries or such other portfolio companies), or are or are beneficially owned by directors, officers or employees thereof, shall severally and not jointly indemnify and hold harmless the Indemnified Parties against all Losses incurred or sustained by any of the Indemnified Parties (including the Surviving Corporation) in connection with or as a result of such actual fraud, and there shall be no limitation on the maximum amount of recovery from such Stockholders with respect to such Losses.
(e) Notwithstanding anything herein to the contrary, the Stockholders shall not be liable for, and shall have no obligation to indemnify the Indemnified Parties against, any Losses attributable to Taxes of the Purchaser or any of its Affiliates with respect to any taxable period (or portion thereof, determined in accordance with the principles set forth in the definition of Pre-Cutoff Straddle Period Taxes) beginning after the Closing Date other than in respect of any breach of the representations set forth in Section 4.08(c), clause (i) of Section 4.08(e), and Section 4.08(f).
(f) Nothing in this Article IX shall limit the liability, if any, of any party hereto for any breach of any representation, warranty, covenant or agreement contained in this Agreement or in any certificate delivered pursuant to this Agreement, Related Agreement if the Merger does not close. (Cg) willful breaches by Seller None of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount Purchaser or the Buyer other Indemnified Parties may recover from Seller pursuant to avoid the indemnity limitations on liability set forth in Section 7.2 this Article IX by seeking damages for Losses shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller in respect breach of Losses arising out of (A) any Excluded Liabilitiescontract, (B) fraud tort or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreementany other theory of liability, and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limited.
(b) Except with respect to (A) any Assumed Liabilitiesthe Purchaser, (B) fraud or fraudulent misrepresentation with respect to representations for itself and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limited.
(c) Without limiting the effect of any of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as hereby waives, from and after the case may beClosing, exceeds $250,000 (to the “Deductible Amount”) in the aggregatefullest extent permitted 70 under applicable Law, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount any and all resolved rights, claims thereafter, and causes of action it may have against the Stockholders and their Affiliates relating (directly or indirectly) to the subject to matter of this Agreement arising under or based upon any other applicable limitations under this Article 7. Notwithstanding any provision of Law or otherwise; provided that notwithstanding anything in this Agreement to the contrary, solely for nothing in this Agreement shall limit the purpose rights or remedies of calculating the amounts payable by Seller Purchaser or any other Indemnified Party in the event of actual fraud, except as expressly set forth in Sections 9.03(c) or 9.03(d). Notwithstanding anything to the Buyer Indemnified Parties contrary contained in this Agreement, the Purchaser shall have no right to indemnification hereunder with respect to any Loss to the extent such Loss is included in the Indebtedness Adjustment. Notwithstanding anything to the contrary herein, no Person may bring a claim for indemnification under this Article 7IX, other than the Purchaser, on behalf of the Indemnified Parties.
(h) For the avoidance of doubt, if and solely to the extent the amount of a Loss is recovered by an Indemnified Party through the actual payment of a Payable Claim to such Indemnified Party, the “Deductible Amount” same amount of such Loss may not be recovered again by such Indemnified Party by reason of such Loss being subject to indemnification under more than one provision of this Agreement, but the amount, if any, of Loss that exceeds the amount already recovered shall mean be recoverable on and subject to the terms and conditions of this Article IX.
(i) $250,000 less (ii) Notwithstanding anything in this Article IX to the amount of contrary, if an Indemnified Party’s claim under this Article IX may be properly characterized in multiple ways in accordance with this Article IX such that such claim may or may not be subject to different caps, time limitations, baskets, and other limitations depending on such characterization, then such Indemnified Party shall have the Identified Environmental Liabilitiesright to characterize such Indemnifiable Matter in a manner that maximizes the recovery and time to assert claims permitted in accordance with this Article IX.
Appears in 1 contract
Samples: Merger Agreement
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilitiesthe Special Loss Warranties, (B) fraud or fraudulent misrepresentation Covenants, and Indemnities and as otherwise set forth in this Section 6.5, recourse against the Escrow Fund shall be the sole and exclusive remedy of the Indemnified Parties against the Indemnifying Parties with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered indemnification claims pursuant to Section 6.2 of this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the . The maximum aggregate amount the Buyer an Indemnified Parties Party may recover individually from Seller any Indemnifying Party pursuant to the indemnity set forth in Section 7.2 6.2 above for Losses recovered from the Escrow Fund shall be limited to $3,412,500. The an amount equal to such party's allocated portion of the Escrow Fund as set forth under the caption "Allocation of Escrow Fund" on the Schedule of Shareholder.
(b) Notwithstanding anything to the contrary set forth in this Agreement, the maximum amount a Buyer an Indemnified Party may recover individually from Seller any Indemnifying Party for any breach or inaccuracy of the Special Loss Warranties, Covenants, and Indemnities shall be limited to an amount equal to the aggregate consideration received by such Shareholder pursuant to this Agreement as determined by multiplying, with respect to each Shareholder, the amount set forth for such Shareholder under the caption "Allocation Percentage" on the Schedule of Shareholders by the aggregate consideration (including Earnout Payments, if any, and payment, if any, for any Working Capital Excess) paid by the Company to all Shareholders (provided that in each case, the Indemnified Parties shall recover any such Losses first from the Escrow Fund and then directly from the Indemnifying Parties). Subject to the terms of the Surety Agreement and in any event where an Indemnified Party would be permitted under this Agreement to recover directly against an Indemnifying Party, the indemnification liability of SCG with respect to the Special Loss, Warranties, Covenants, and Indemnities shall be joint and several, and the indemnification liability of the Management Shareholders shall be several but not joint.
(c) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall limit the Liability of any Shareholder (and the Escrow Fund shall not be the exclusive remedy) in respect of Losses arising out of (A) any Excluded Liabilities, (B) common law fraud or fraudulent willful and knowing misrepresentation with respect to representations or willful and warranties knowing breach on the part of Seller contained in this Agreement any Shareholder. The parties further acknowledge that the Purchaser shall recover any Losses resulting from any common law fraud or in any certificate delivered pursuant to this Agreementwillful and knowing misrepresentation or willful and knowing breach by any Shareholder, and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limitedeither from the Escrow Fund or directly from such Shareholders, at the Purchaser's sole election.
(bd) Except with respect All sums payable by the Indemnifying Parties to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered the Indemnified Parties pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to the indemnity in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses 6.2 above shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent paid free and clear of all deductions or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limited.
(c) Without limiting the effect of any of the other limitations set forth herein, except with respect to (A) any amount Seller withholdings save only as may be required by applicable Legal Requirements. If any such deductions or withholdings are required by applicable Legal Requirements, the Indemnifying Parties shall be obliged to pay hereunder to the Indemnified Parties such sum as will after such deduction or withholding has been made leave the Indemnified Parties with respect the same amount as it would have been entitled to Excluded Liabilities, and (B) receive in the absence of any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required such requirement to make a deduction or withholding. If any indemnification payment hereunder until such time as sum payable by the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more Parties to the Indemnified Parties pursuant to the indemnity in Section 6.2 above shall otherwise be subject to Taxation in the hands of the Buyer Indemnified Parties recipient the same obligation to make an increased payment shall apply in relation to such Taxation as if it were a deduction or the Seller Indemnified Partieswithholding required by applicable Legal Requirements, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject referred to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental Liabilitiesabove.
Appears in 1 contract
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to as set forth in Section 2.8 8.3(b) and Section 8.3(c) hereof, the maximum aggregate amount the Buyer a Parent Indemnified Parties Party may recover from Seller a Stockholder pursuant to the indemnity set forth in Section 7.2 8.2 hereof for Losses shall be limited to $3,412,500. The maximum such Stockholder’s Pro Rata Portion of the Escrow Fund; provided, however, that except as set forth in Section 8.3(b) and Section 8.3(c) hereof, the liability of each of the Stockholders for breaches of the representations and warranties contained in Section 2.2 (Company Capital Structure) and Section 2.12 (Tax Matters) hereof shall be limited to a dollar amount a Buyer Indemnified Party may recover from Seller equal to the aggregate proceeds (including such Stockholder’s Pro Rata Portion of the Escrow Amount) received by such Stockholder.
(b) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall limit the liability of any Person (other than Parent and its affiliates) (and the Escrow Fund shall not be the exclusive remedy) in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches committed by Seller of its covenants contained in this Agreement shall not be limitedsuch Person.
(bc) Except with respect Notwithstanding anything to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained the contrary set forth in this Agreement, and (D) Taxes referred to in Section 2.8 hereofnothing herein shall limit the liability of each of the Stockholders, including the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer Principal Stockholders, in respect of Losses arising out of any fraud on the part of the Company or any of its Subsidiaries or any other Stockholder; provided, however, that the indemnification liability for such Losses shall be several and not joint.
(Ad) Nothing in this Article VIII shall limit the liability of the Company or the Principal Stockholders for any Assumed Liabilitiesbreach of any representation, (B) fraud warranty or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer covenant contained in this Agreement Agreement, any Related Agreements or in any certificate certificates or other instruments delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall if the Merger does not be limitedclose.
(ce) Without limiting Notwithstanding anything to the effect of any of the other limitations set forth contrary herein, except with respect to (A) the parties hereto agree and acknowledge that any amount Seller Parent Indemnified Party may be required to pay hereunder with respect to Excluded Liabilities, and (B) bring a claim for indemnification for any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations Loss under this Article 7. VIII notwithstanding the fact that such Parent Indemnified Party had knowledge of the breach, event or circumstance giving rise to such Loss prior to the Closing or waived any condition to the Closing related thereto.
(f) Notwithstanding anything to the contrary herein, nothing shall prohibit Parent from seeking and obtaining recourse against any provision Stockholder in the event that Parent issues more than the portion of the Purchase Price to which such Stockholder is entitled pursuant to Article I of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental LiabilitiesAgreement.
Appears in 1 contract
Samples: Merger Agreement (Autodesk Inc)
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount the Buyer The Purchaser Indemnified Parties may recover from Seller pursuant to the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limited.
(bentitled to any recovery resulting from Section 9.2(a)(i) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limited.
(c) Without limiting the effect of any of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time (if at all) as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer such Indemnified Parties or with respect to such matters exceeds [***] in the Seller Indemnified Parties, as the case may be, exceeds $250,000 aggregate (the “Deductible Deductible”); and in such event, the Purchaser Indemnified Parties shall, subject to the limitations set forth in the remaining subsections of this Section 9.3, be entitled to be indemnified against and compensated and reimbursed to the extent all Losses from the first Dollar thereof; provided, that the limitations set forth in this Section 9.3(a) shall not apply to any indemnification claims relating to (i) any breach of any representation or warranty that involves fraud or Willful Breach (including pursuant to Sections 9.2(a)(iii) or 9.2(b)(iii)) or (ii) any breach of the Special Representations or the Fundamental Representations.
(b) The maximum amount that the Purchaser Indemnified Parties may recover from the Stockholders under Sections 9.2(a)(i) and 9.2(b)(i) shall be limited to the Indemnification Escrow Amount”; provided, that (i) in the aggregatecase of any breach or inaccuracy of the Special Representations, at which point the maximum amount that the Purchaser Indemnified Parties may recover from the Stockholders shall be limited to $[***] and (ii) in the case of any breach of the Fundamental Representations, the maximum amount that the Purchaser Indemnified Parties may recover from the Stockholders shall be limited to $[***] plus the maximum aggregate amount of all Milestone Payments that become payable (prior to any application of any setoff right) under this Agreement (including any amounts in the Indemnification Escrow Fund) (the “Indemnifying Stockholder Proceeds”). Absent fraud or Willful Breach by the Company, the Stockholders or any of their respective authorized representatives (including pursuant to Sections 9.2(a)(iii) or 9.2(b)(iii)), the maximum amount that the Purchaser Indemnified Parties may recover from the Stockholders under Section 9.2(a) shall be limited to the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7Stockholder Proceeds. Notwithstanding any provision of this Agreement anything contained herein to the contrary, solely nothing herein shall limit the recovery amount against the Stockholders, or remedies available to a Purchaser Indemnified Party, for claims pursuant to Section 9.2(a)(vii) or for fraud or Willful Breach by the Company, the Stockholders or any of their respective authorized representatives (including pursuant to Section 9.2(a)(iii)); provided, however, that no Stockholder shall be liable for the purpose fraud or Willful Breach of calculating another Stockholder or such other Stockholder’s authorized representative.
(c) For the amounts payable by Seller avoidance of doubt, if and solely to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) extent the amount of a Loss is recovered by an Indemnified Party through the Identified Environmental Liabilitiesactual payment of a Payable Claim to such Indemnified Party, the same amount of such Loss may not be recovered again by such Indemnified Party by reason of such Loss being subject to indemnification under more than one provision of this Agreement.
(d) The maximum amount that the Seller Indemnified Parties may recover from the Purchaser under Section 9.2(c)(i) shall be limited to the amounts in the Indemnification Escrow Amount.
(e) Except in the case of fraud or Willful Misconduct, each Indemnified Party agrees to take commercially reasonable actions to mitigate any Losses and to make and pursue any claims for insurance and/or other payments available from third parties with respect to Losses for which it will seek indemnification hereunder, with all mitigation costs to be included in the amount of Losses arising under the applicable indemnified claim. An Indemnified Party’s right to indemnification pursuant to this Article IX on account of any Losses will be reduced by all insurance of the Indemnified Party indemnification or contribution proceeds actually received by such Indemnified Party or their Affiliates in respect of those Losses, net of applicable costs and expenses involved in seeking such recovery. The applicable Indemnified Parties shall remit to the applicable Indemnifying Parties any such insurance or other third party proceeds that are paid to such Indemnified Parties with respect to such Losses for which such Indemnified Parties have been previously indemnified pursuant to this Article IX.
Appears in 1 contract
Samples: Stock Purchase Agreement (Lexeo Therapeutics, Inc.)
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained as set forth in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereofSECTION 8.5, the maximum aggregate amount the Buyer an Indemnified Parties Party may recover from Seller a Principal Stockholder individually pursuant to the indemnity set forth in Section 7.2 SECTION 8.2(a) hereof for Losses shall be shall be limited to $3,412,500. The maximum an amount a Buyer Indemnified Party may recover from Seller equal to such Principal Stockholder's Pro Rata Portion of the Escrow Fund.
(b) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall limit the liability of any Principal Stockholder in respect of Losses arising out of (Ai) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to breaches of representations and warranties or covenants of Seller such Principal Stockholder, (ii) any Losses resulting from any breach of representation or warranty contained in SECTION 2.2 (Company Capital Structure), (iii) any fraud or intentional misrepresentation in which a Principal Stockholder participated or of which a Principal Stockholder had actual knowledge, (iv) any Management Payments (as defined in SECTION 8.5(d)), provided that the aggregate liability of each Principal Stockholder for Management Payments shall not exceed the Merger Consideration received by each such Principal Stockholder, or (v) any Excess Third Party Expenses.
(c) Nothing herein shall limit the liability of the Company or any Principal Stockholder for any breach or inaccuracy of any representation, warranty or covenant applicable to it contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Related Agreement shall if the Merger does not be limitedclose.
(bd) Except with respect Notwithstanding anything to (A) any Assumed Liabilitiesthe contrary herein, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limited.
(c) Without limiting the effect of any of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses event that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less any amounts shall be distributed to the Indemnified Parties in satisfaction of claims for indemnification under SECTION 8.2(a)(v) (such amounts, the "MANAGEMENT PAYMENTS"), and (ii) the amount Escrow Fund shall be distributed in full to the Indemnified Parties (whether as a result of the Identified Environmental LiabilitiesManagement Payments or otherwise), and as a result a shortfall exists in the Escrow Fund and otherwise valid claims against the Escrow Fund shall be unable to be satisfied (an "UNSATISFIED CLAIM"), then the Indemnified Parties shall be entitled to collect cash, directly from the Principal Stockholders, pro rata based on the amounts previously held in the Escrow Fund on behalf of each, with respect to such Unsatisfied Claim or Unsatisfied Claims, up to an aggregate amount equal to the lesser of (x) the aggregate of the Management Payments satisfied from the Escrow Fund, and (y) $500,000.
Appears in 1 contract
Samples: Merger Agreement (Scansoft Inc)
Maximum Payments; Remedy. (a) Except with respect to (Aas set forth in Section 9.3(b) any Excluded Liabilitieshereof, (Bi) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount the Buyer an Indemnified Parties Party may recover from Seller a Stockholder (other than a Principal Stockholder) individually pursuant to the indemnity set forth in Section 7.2 9.2 hereof for Losses shall be limited to such Stockholder’s Pro Rata Portion of the Escrow Fund and (ii) the maximum aggregate amount the Indemnified Parties may recover pursuant to the indemnity set forth in Section 9.2 hereof for Losses shall be limited to $3,412,5006,800,000. The maximum amount a Buyer Except as set forth in Section 9.3(b) and Section 9.3(c) hereof, with respect to any claim for Losses incurred by an Indemnified Party may recover for any breach of any representation or warranty, covenant or agreement in this Agreement by the Company or any Stockholder (other than any Principal Stockholder), such Indemnified Party shall seek indemnification solely from Seller the Escrow Fund and the indemnification provisions set forth in this Article IX shall be the sole and exclusive remedy of any Indemnified Party for any breach of any representation or warranty, covenant or agreement in this Agreement by the Company or any Stockholder (other than any Principal Stockholder). Except as set forth in Section 9.3(b) and Section 9.3(c) hereof, with respect to any claim for Losses incurred by an Indemnified Party for any breach of any representation or warranty, covenant or agreement in this Agreement by any Principal Stockholder, such Indemnified Party shall seek indemnification for any such breach from the Principal Stockholders only after the Escrow Fund has been exhausted. Nothing in this Agreement shall limit the right of Parent or any other Indemnified Party to pursue remedies under any Related Agreement against the parties thereto with respect to matters not the subject of Section 9.2.
(b) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall limit the liability of any Person in respect of Losses arising out of (A) any Excluded Liabilitiesfraud committed by such Person or any willful breach committed by such Person of any representation, (B) fraud warranty or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limited.
(b) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants covenant contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent any Related Agreements or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud certificates or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate other instruments delivered pursuant to this AgreementAgreement on the part of such Person; provided, however, that the indemnification liability of any Person, including the Principal Stockholders, for Losses based on fraud committed by such Person or willful breach of a representation, warranty or covenant committed by such Person shall be several and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limitedjoint.
(c) Without limiting Nothing in this Article IX shall limit the effect liability of the Company or the Principal Stockholders for any breach of any of representation, warranty or covenant contained in this Agreement, any Related Agreements or in any certificates or other instruments delivered pursuant to this Agreement if the other limitations set forth Merger does not close.
(d) Notwithstanding anything to the contrary herein, except with respect to (A) the parties hereto agree and acknowledge that any amount Seller Indemnified Party may be required to pay hereunder with respect to Excluded Liabilities, and (B) bring a claim for indemnification for any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations Loss under this Article 7. IX notwithstanding the fact that such Indemnified Party had knowledge of the breach, event or circumstance giving rise to such Loss prior to the Closing or waived any condition to the Closing related thereto.
(e) Notwithstanding any provision of this Agreement to the contrary, solely for an Indemnified Party may not recover any Losses under Section 9.2(a)(i) hereof unless and until one or more Officer’s Certificates identifying such Losses under Section 9.2(a)(i) hereof in excess of $100,000 in the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, aggregate (the “Deductible Amount” shall mean (i”) $250,000 less (ii) the amount of the Identified Environmental Liabilities.has or have been delivered to
Appears in 1 contract
Maximum Payments; Remedy. (a) Except with respect Subject to (ASection 7.5(b) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (Dc) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount the Buyer an ---------------------- Indemnified Parties Party may recover from Seller each Stockholder pursuant to the indemnity set forth in Section 7.2 hereof for Losses or for any claim whatsoever under ----------- this Agreement (except as provided in this Section 7.5) shall be limited to $3,412,500. The a ----------- dollar amount equal to the aggregate proceeds (as calculated based on the Assumed Share Value on the date of such claim) received by such Stockholder; provided, however, that the maximum amount a Buyer an Indemnified Party may recover -------- ------- from Seller in respect each of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation the Stockholder with respect to representations and warranties a Loss arising pursuant to a breach or inaccuracy of Seller a representation or warranty contained in Section 2.13 ------------ (Intellectual Property) or any claim whatsoever under this Agreement relating to Intellectual Property (collectively "IP Costs") shall be limited as follows: -------- (X) for any loss arising on or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by Seller before the first anniversary of its covenants contained in this Agreement shall not be limited.
(b) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereofthe Closing Date, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller an Indemnified Party may recover from Parent or Buyer in respect shall equal each Stockholder's Pro-Rata Portion of Losses arising out the Assumed Share Value of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreementthe Merger Shares, and (CY) willful breaches by either Parent or Buyer for any loss arising after the first anniversary of its covenants contained the Closing Date, but before the fifth anniversary of the Closing Date, the maximum amount an Indemnified Party may recover in this Agreement shall not be limitedequal twenty-five (25%) of each Stockholder's Pro-Rata Portion of the Aggregate Consideration (with the Merger Shares having an assumed value equal to such shares Trading Price on the Closing Date). After the fifth anniversary of the Closing Date, no Stockholder shall have any liability for IP Costs.
(c) Without limiting Nothing herein shall limit the effect liability of the Company or the Stockholders for any breach or inaccuracy of any of the other limitations set forth hereinrepresentation, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer warranty or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) covenant contained in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to if the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental LiabilitiesMerger does not close.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Lantronix Inc)
Maximum Payments; Remedy. (a) Except No claim for indemnification may be made under Section 8.2(a)(i) (other than recovery under Section 8.2(a)(i) for any breach or inaccuracy of the Surviving Representations, or any fraudulent or willful breach of any representation or warranty) unless and until the aggregate amount of Losses of the Parent Indemnified Parties that may be claimed thereunder (together with any Losses that may be claimed under any other subsection of Section 8.2(a)) exceeds $50,000 (the “Threshold”), and once such Threshold has been reached, the Indemnifying Parties shall be liable to the Parent Indemnified Parties for the full amount of all Losses, including those that comprised any portion of the Threshold.
(b) Subject to Section 8.2(b), the Indemnifying Parties’ indemnification obligations under Section 8.2(a) shall be limited as follows:
(i) with respect to such Indemnifiable Matters other than those set forth in clauses (Aii) any Excluded Liabilitiesand (iii) of this Section 8.3(b), to such Indemnifying Party’s Pro Rata Portion of the remaining Escrow Fund, if any, held pursuant to and in accordance with this Agreement,
(Bii) fraud or fraudulent misrepresentation with respect to Indemnifiable Matters arising from a breach or inaccuracy of the representations and warranties of Seller the Acquired Entities and the Founders contained in this Agreement Section 2.13 (Intellectual Property), to an amount equal to the sum of (A) such Indemnifying Party’s Pro Rata Portion of 30% of the Total Closing Consideration and (B) such Indemnifying Party’s Pro Rata Portion of 30% of the remaining Escrow Fund, if any, and
(iii) with respect to Indemnifiable Matters (A) arising from a breach or inaccuracy of the Surviving Representations or (B) described in Section 8.2(a)(ii) through (xiv), to an amount equal to such Indemnifying Party’s Pro Rata Portion of the sum of (i) the Total Closing Consideration and (ii) the Escrow Amount.
(iv) For the avoidance of doubt and subject to Section 8.2(b), liability for any certificate delivered pursuant Losses attributable to this Agreementthe Indemnifiable Matters in Sections 8.3(b)(i), (Cii) willful breaches by Seller of its covenants contained in this Agreement, and (Diii) Taxes referred shall be allocated among the Indemnifying Parties on a several and not joint basis in accordance with their Pro Rata Portion.
(c) If a Parent Indemnified Party’s claim under this Article VIII may be brought under different subsections of Section 8.2(a), then such Parent Indemnified Party shall have the right to bring such claim under any applicable section it chooses in Section 2.8 hereofaccordance with this Article VIII; provided, the maximum aggregate amount the Buyer however, that a Parent Indemnified Parties may recover from Seller pursuant Party shall not be entitled to receive indemnification to the indemnity extent that it has already received indemnification with respect to the same Loss even if the state of facts giving rise to such Loss constitutes a breach of more than one representation, warranty, covenant or agreement.
(d) Subject to the limitations set forth in Section 7.2 for 8.3(b), claims or recoveries in respect of Losses subject to Sections 8.3(b)(i), 8.3(b)(ii), or 8.3(b)(iii)(A) (collectively, the “Order of Recovery 47 Matters”) shall be limited satisfied with respect to $3,412,500. The maximum amount a Buyer Indemnified the Indemnifying Parties to whom such Losses are attributable, first, from the remaining Escrow Fund, if any, until such Indemnifying Parties’ Pro Rata Portion of the Escrow Fund has been reduced to zero in accordance with Section 8.4(e), and then directly against such Indemnifying Party may recover from Seller up to such Indemnifying Party’s Pro Rata Portion of such Losses; provided, however, that claims or recoveries in respect of Losses arising out from a breach or inaccuracy of (A) any Excluded Liabilitiesa representation or warranty in Article III may be made, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limited.
(b) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under sole and absolute discretion of the indemnity set forth in Section 7.2 for Losses shall be limited Parent Indemnified Parties, either from the Escrow Fund (to $3,412,500the extent of such Indemnifying Party’s Pro Rata Portion of the Escrow Fund) or directly against such Indemnifying Party rather than from the Escrow Fund. The maximum amount a Seller Indemnified Party may recover from Parent Claims or Buyer recoveries in respect of Losses arising out that are not Order of (A) any Assumed LiabilitiesRecovery Matters may be made, (B) fraud or fraudulent misrepresentation with respect to representations in the sole and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limited.
(c) Without limiting the effect of any absolute discretion of the other limitations set forth hereinParent Indemnified Parties, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer either from the Escrow Fund or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed directly against such Indemnifying Party by any one or more of Indemnifying Parties rather than from the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental LiabilitiesEscrow Fund.
Appears in 1 contract
Samples: Share Purchase Agreement
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereofIf the Closing occurs, the maximum aggregate amount the Buyer all Parent Indemnified Parties may collectively recover from Seller the Company Shareholders pursuant to the indemnity set forth in Section 7.2 for Losses 8.02 shall be limited to $3,412,500the principal amount which remains due and payable pursuant to the Notes as of the date of the commencement of the applicable indemnification claim. The maximum amount a Buyer In the event that the Company Shareholders become obligated to pay to any Parent Indemnified Party may recover from Seller in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered indemnification amounts pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limited.
(b) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses 8.02, the Parties acknowledge and agree that the principal amount of the Notes then outstanding shall be reduced by such amount to the extent possible, to be apportioned pro rata between all of the Notes then outstanding, and Parent shall cause the applicable amounts to thereafter be paid to the applicable Parent Indemnified Party(ies).
(b) If the Closing occurs, the maximum amount all Company Indemnified Parties may collectively recover from Parent pursuant to the indemnity set forth in Section 8.02 shall be limited to $3,412,500. The maximum principal amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations which remains due and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered payable pursuant to this Agreementthe Notes as of the date of the commencement of the applicable indemnification claim, and (C) willful breaches which shall be paid in cash by either Parent or Buyer of its covenants contained in this Agreement shall not be limitedto the applicable Company Indemnified Party(ies).
(c) Without limiting the effect of any of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) Notwithstanding anything in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely no indemnification claims for Losses shall be asserted by the purpose of calculating the amounts payable by Seller to the Buyer Parent Indemnified Parties under this Article 7Section 8.02 or by the Company Indemnified Parties under Section 8.03 unless, in either case, (x) any individual Loss or group or series of related Losses under Section 8.02 or Section 8.03, as applicable, exceeds $10,000, whereupon the “Deductible Amount” Parent Indemnified Parties or the Company Indemnified Parties, as applicable, shall mean (i) $250,000 less (ii) be entitled to receive only amounts for Losses in excess of such amount, subject to the amount of the Identified Environmental Liabilitieslimitations set forth herein.
Appears in 1 contract
Samples: Merger Agreement (Sugarmade, Inc.)
Maximum Payments; Remedy. (a) Except Notwithstanding anything to the contrary contained herein, excluding claims with respect to (A) any Excluded Liabilitiesthe Surviving Representations, (B) fraud Taxes or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereoffraud, the maximum aggregate amount the Buyer Parent Indemnified Parties may recover from Seller pursuant to the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limitedentitled to recover Losses indemnifiable under Section 7.2(a)(i) unless and until the aggregate amount of all Losses indemnifiable under Section 7.2(a)(i) exceeds $225,000, and in such event the Parent Indemnified Parties shall be entitled to only recover such Losses under Section 7.2(a)(i) in excess of such amount.
(b) Except with respect to (A) Nothing in this Article VII shall limit the liability of any Assumed Liabilitiesparty hereto under Sections 7.2(a)(ii), (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreementiii), (Civ), (v), (vi) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limitedvii).
(c) Without limiting The aggregate liability of the effect Stockholders to the Parent Indemnified Parties under Section 7.2(a)(i) shall not exceed the amounts realized from the Escrow Cash and Escrow Shares under the terms of the Escrow Agreement, except that such limitation shall not apply to Losses arising from fraud by any Stockholders, Taxes or breaches of any of the other limitations set forth Surviving Representations. In no case, however, shall the aggregate liability of the Stockholders exceed the amount of the Aggregate Consideration, or the individual liability of any Stockholder exceed his or her pro rata portion of the Aggregate Consideration.
(d) Notwithstanding anything to the contrary herein, except the obligation of indemnity for the amount of any Losses sustained by any Indemnified Party shall be reduced by (i) insurance proceeds payable with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilitiessuch Losses, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount amounts recovered from third parties with respect to such Losses (net costs of collection); (iii) any net Tax benefits immediately realized by such Indemnified Party in cash arising from the incurrence of payment of such Losses. In no event shall any Indemnified Party be entitled to duplicative or multiple recovery of the Identified Environmental Liabilitieseconomic value of any Losses for any reason.
(e) Notwithstanding anything to the contrary herein, the rights and remedies of the Indemnified Parties after the Closing shall not be limited by the fact that any Indemnified Party had knowledge of any breach, event or circumstance prior to the Closing or waived any condition to the Closing related thereto.
Appears in 1 contract
Samples: Merger Agreement (Revolution Lighting Technologies, Inc.)
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, and (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof3.4 and 5.14 that are owed by Seller and which Buyer may ----------- ---- become obligated to pay, the aggregate maximum aggregate amount the Buyer Indemnified Parties may recover from Seller pursuant to the indemnity set forth in Section 7.2 9.2 or ----------- otherwise for Losses Losses, or otherwise in respect of any breaches of any of the representations, warranties or covenants of Seller hereunder or in the Certificate of Seller, shall be limited to $3,412,500. 3,300,000.
(b) The maximum amount a Buyer an Indemnified Party may recover from Seller in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limited.
(b) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement Liabilities shall not be limited.
(c) Without limiting the effect of any of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall not be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties and to which any Indemnified Party is entitled to indemnification hereunder, or to which any one or more of the Seller Indemnified Parties, as the case may beParties has or have otherwise become subject with respect to which any Indemnified Party is entitled to indemnification hereunder, exceeds $250,000 (the “Deductible Amount”) 100,000 in the aggregate, at which point the Indemnifying Party Seller shall indemnify only the full amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding ARTICLE 9.
(d) The right of Parent and Buyer hereto and their related Indemnified Parties to assert indemnification claims and receive indemnification payments pursuant to this ARTICLE 9 shall be the sole and exclusive right and remedy exercisable by Parent and Buyer with respect to any provision breach by Seller of any representation, warranty or covenant hereunder or other matter with respect to which such indemnification is provided; provided, however, that the foregoing clause of this sentence shall not be deemed a waiver by any Indemnified Party of any right to specific performance or injunctive relief, or any right or remedy they may otherwise have against any Person that has committed fraud with respect to this Agreement.
(e) Nothing herein shall limit the liability of Seller, Buyer or Parent for any breach or inaccuracy of any representation, warranty or covenant contained in this Agreement to if the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental LiabilitiesClosing does not occur.
Appears in 1 contract
Samples: Asset Purchase Agreement (Palm Inc)
Maximum Payments; Remedy. (a) Except with respect as set forth in Sections 8.3(b) and 9.2 hereof, following the Closing:
(i) recovery from the Escrow Fund (and in the case of the Founders, the forfeiture of the Holdback Shares) shall be the sole and exclusive right and remedy for any Losses arising out of any and all claims relating to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties the subject matter of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, ;
(Cii) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount the Buyer an Indemnified Parties Party may recover from Seller a Shareholder individually pursuant to the indemnity set forth in Section 7.2 8.2(a) hereof for Losses shall be limited to such Shareholder’s Pro Rata Portion of the amounts held in the Escrow Fund (and, in the case of the Founders, the forfeiture of the Holdback Shares);
(iii) no indemnification payment by the Shareholders with respect to any indemnifiable Losses otherwise payable under Section 8.2(a) and arising out of or resulting from the causes enumerated in Section 8.2(a) shall be payable until such time as all such indemnifiable Losses shall aggregate to more than $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller 100,000, after which time the Shareholders shall be liable in respect full for all indemnifiable Losses (excluding the first $100,000).
(b) Notwithstanding anything to the contrary set forth in this Agreement, in the event of Losses arising out of (A) any Excluded Liabilities, (B) fraud by or fraudulent misrepresentation on behalf of the Company or any Shareholder in connection with respect to representations and warranties of Seller contained in this Agreement or in any certificate the certificates delivered pursuant to Sections 7.2(j) or 7.2(k) of this Agreement, and (C) willful breaches by Seller each Shareholder shall be liable for all such Losses up to the full amount of its covenants contained the Aggregate Consideration Amount payable to such Shareholder, provided that nothing in this Agreement shall not be limited.
limit the liability of any Person (bincluding any Shareholder) Except with respect to (A) for any Assumed Liabilities, (B) such Losses if such Person perpetrated such fraud or fraudulent misrepresentation with respect to representations and warranties had actual knowledge of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreementsuch fraud being committed, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained nothing in this Agreement shall not be limitedprevent or limit any right of other Shareholders for contribution from any other Shareholder who perpetrated such fraud.
(c) Without limiting Notwithstanding anything to the effect of any of the other limitations set forth contrary herein, except with respect to (A) the parties hereto agree and acknowledge that any amount Seller Indemnified Party may be required to pay hereunder with respect to Excluded Liabilities, and (B) bring a claim for indemnification for any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations Loss under this Article 7. VIII notwithstanding the fact that such Indemnified Party had knowledge of the breach, event or circumstance giving rise to such Loss prior to the Closing or waived any condition to the Closing related thereto.
(d) Notwithstanding anything to the contrary herein, nothing shall prohibit Parent from seeking and obtaining recourse against any provision Shareholder in the event that Parent pays more consideration to any Shareholder than such Shareholder is entitled pursuant to Article II of this Agreement Agreement.
(e) Notwithstanding anything to the contrarycontrary set forth in this Agreement, solely nothing in this Agreement shall limit the rights of any party hereto to apply for equitable remedies to enforce the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental Liabilitiesother party or parties’ obligations hereunder.
Appears in 1 contract
Samples: Merger Agreement (Shanda Games LTD)
Maximum Payments; Remedy. (a) Except with respect to (Aas set forth in Sections 7.6(c) any Excluded Liabilities, (Band 7.6(d) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount the Buyer Indemnified Parties may recover from Seller the Escrow Participants in the aggregate pursuant to the indemnity set forth in Section 7.2 hereof for Losses shall be limited to $3,412,500. The the amounts held in the Escrow Fund.
(b) Except as set forth in Sections 7.6(c) and 7.6(d) hereof, the maximum amount a Buyer the Indemnified Party Parties may recover from Seller an Escrow Participant individually pursuant to the indemnity set forth in Section 7.2 hereof for Losses shall be limited to each Escrow Participant’s Pro Rata Portion of the Escrow Fund.
(c) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall limit the liability of the Escrow Participants in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to breaches of the representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this AgreementSection 2.1, Section 2.2 and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limited.
(b) Except with respect to (A) any Assumed LiabilitiesSection 2.4 hereof; provided, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreementhowever, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, that the maximum aggregate amount that the Seller an Indemnified Parties Party may recover from Parent and Buyer in the aggregate under each Escrow Participant individually pursuant to the indemnity set forth in Section 7.2 for Losses in respect of any such breach shall be limited to $3,412,500such Escrow Participant’s Pro Rata Portion of the Loss attributable to such breach, not to exceed such Escrow Participant’s Pro Rata Portion of the Merger Consideration actually received. The maximum amount a Seller Subject to the foregoing, the right of Parent to be indemnified from the Escrow Fund pursuant to this Article VII shall be the sole and exclusive remedy with respect to any matter for which an Indemnified Party may recover from seek indemnification pursuant to Section 7.2. Except as set forth in this Article VII, no current or former stockholder, director, officer, employee, affiliate or advisor of the Company shall have any liability of any nature to Parent, the Surviving Corporation or any Affiliate of Parent or Buyer the Surviving Corporation with respect to any breach of any representation or warranty contained in, or any other breach of, this Agreement.
(d) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall limit the liability of any party in respect of Losses arising out of any fraud (A) it is agreed and understood that the Survival Date and the Threshold Amount shall not apply in respect of any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations such Losses and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement that each Escrow Participant shall not be limitedliable for more than such Escrow Participant’s Pro Rata Portion of the Losses resulting from such fraud).
(ce) Without limiting the effect of any other limitation contained in this Article VII, for purposes of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only computing the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject any Losses incurred by any Indemnified Party entitled to any other applicable limitations indemnification under this Article 7. Notwithstanding any provision of this Agreement VII, there shall be deducted: (i) an amount equal to the contrary, solely for amount of any tax benefit received by such Indemnified Party or any of its Affiliates in connection with such Losses or any of the purpose of calculating the amounts payable by Seller circumstances giving rise thereto; and (ii) an amount equal to the Buyer amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements received or receivable by such Indemnified Parties Party or any of its Affiliates in connection with such Losses or any of the circumstances giving rise thereto (it being understood that the Person entitled to receive, or whose Affiliates are entitled to receive, any such proceeds, payments or reimbursements shall use commercially reasonable efforts to obtain such proceeds, payments or reimbursements prior to seeking indemnification under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental LiabilitiesVII).
Appears in 1 contract
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to as set forth in Section 2.8 8.3(b) hereof, the maximum aggregate amount the Buyer an Indemnified Parties Party may recover from Seller an Indemnifying Party individually pursuant to the indemnity set forth in Section 7.2 8.2 hereof for Losses shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller such Indemnifying Party’s Pro Rata Portion of the Total Escrow Amount.
(b) Notwithstanding anything to the contrary set forth in respect this Agreement, in the event of Losses arising out of any Fraud Claim, each Indemnifying Party shall be liable for all such Losses up to the full amount of the Merger Consideration (Afor the avoidance of doubt, including any payments made pursuant to Section 2.13 hereof, if any, received by such Indemnifying Party), provided that nothing in this Agreement shall limit the liability of any Person (including any Indemnifying Party) for any Excluded Liabilities, (B) such Losses if such Person perpetrated such fraud or fraudulent misrepresentation with respect to representations had actual knowledge of the same, and warranties nothing in this Agreement shall prevent or limit any right of Seller other Indemnifying Parties for contribution from any other Indemnifying Party who perpetrated such fraud.
(c) Nothing in this Article VIII shall limit the liability of the Company for any breach by the Company of any representation, warranty or covenant contained in this Agreement Agreement, or in any certificate certificates or other instruments delivered pursuant to this Agreement, if the Merger does not close.
(d) Notwithstanding anything to the contrary herein, the parties hereto agree and acknowledge that any Indemnified Party may bring a claim for indemnification for any Loss under this Article VIII notwithstanding the fact that such Indemnified Party had knowledge of the breach, event or circumstance giving rise to such Loss prior to the Closing or waived any condition to the Closing related thereto.
(Ce) willful breaches Notwithstanding anything to the contrary herein, nothing shall prohibit Parent from seeking and obtaining recourse against any Indemnifying Party in the event that Parent issues more shares of Parent Common Stock or pays more cash to the Indemnifying Party than the Indemnifying Party is entitled pursuant to Article II of this Agreement.
(f) Notwithstanding anything to the contrary herein but subject to Section 8.3(a) herein, nothing shall prohibit Parent from seeking and obtaining recourse pursuant to the terms of this Article VIII against any Indemnifying Party after the Survival Date for any breach or inaccuracy of a Specified Representation so long as the statute of limitations of such Specified Representation has not expired.
(g) Notwithstanding anything to the contrary herein, nothing shall prohibit Parent from seeking and obtaining recourse against any Indemnifying Party in the event that, as a result of any Final Assumed Liability Adjustment, the Total Indemnifying Party Amount is not sufficient to satisfy any Losses suffered by Seller the Indemnified Parties; provided, however, that the Indemnifying Parties shall only be liable for an amount up to their Pro Rata Portion of its covenants the Final Assumed Liability Adjustment in such cases. FOIA confidential treatment requested: [***] indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to such omitted portions.
(h) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall not be limited.
(b) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, limit the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limited.
(c) Without limiting the effect rights of any of party hereto to apply for equitable remedies to enforce the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer party or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental Liabilitiesparties’ obligations hereunder.
Appears in 1 contract
Maximum Payments; Remedy. (a) Except with respect to The Parent Indemnified Parties, on the one hand, or the Company Indemnified Parties, on the other hand (A) any Excluded Liabilitieseach, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreementan “Indemnified Party”), (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount the Buyer Indemnified Parties may recover from Seller pursuant to the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limited.
(bentitled to any recovery resulting from Section 9.2(a)(i) Except with respect to (A) any Assumed Liabilitiesor Section 9.2(b)(i), (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreementrespectively, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limited.
(c) Without limiting the effect of any of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time (if at all) as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of such Indemnified Parties with respect to such matters exceeds $500,000 in the Buyer aggregate; and in such event, the Parent Indemnified Parties or the Seller Company Indemnified Parties, as the case may be, exceeds shall, subject to the limitations set forth in the remaining subsections of Section 9.3, be entitled to be indemnified against and compensated and reimbursed to the extent all Losses exceed $250,000 200,000; provided, that the limitations set forth in this Section 9.3(a) shall not apply to any indemnification claims relating to (i) any breach of any representation or warranty that involves fraud or Willful Breach or (ii) any breach of the Special Representations and the Fundamental Representations.
(b) The maximum amount that the Parent Indemnified Parties may recover from each Indemnifying Holder under Section 9.2(a)(i) shall be limited to such Indemnifying Holder’s Pro Rata Share of the General Cap; provided, that (i) in the case of any breach or inaccuracy of the Special Representations, the maximum amount that the Parent Indemnified Parties may recover from each Indemnifying Holder shall be limited to such Indemnifying Holder’s Pro Rata Share of $72 million and (ii) in the case of any breach of the Company Fundamental Representations, the maximum amount that the Parent Indemnified Parties may recover from each Indemnifying Holder shall be limited to the aggregate consideration received by such Indemnifying Holder pursuant to this Agreement (including any portion of the Escrow Fund and the WC Escrow Fund) (the “Deductible AmountIndemnifying Holder Proceeds”). The attributed dollar value of any Parent Common Stock returned by an Indemnifying Holder in connection with any claim for indemnification hereunder (including the number of shares recoverable by the Parent Indemnified Party and the Indemnifying Holder’s Pro Rata Share of a Loss) or in determining the Indemnifying Holder Proceeds shall be equal to the Parent Common Stock Price. Except for fraud or Willful Breach committed by an Indemnifying Holder, no Indemnifying Holder shall be liable for any fraud or Willful Breach committed by the Company or any if their respective directors, officers, employees, advisors, agents or representatives beyond such Indemnifying Holder’s Indemnifying Holder Proceeds. Notwithstanding anything contained herein to the contrary, nothing herein shall limit the recovery amount against an Indemnifying Holder, or remedies available to a Parent Indemnified Party, for such Indemnifying Holder’s fraud or Willful Breach.
(c) The maximum amount that the Parent Indemnified Parties may recover from each Indemnifying Holder under Section 9.2(a) (other than Section 9.2(a)(iii)) shall be limited to the Indemnifying Holder Proceeds.
(d) Except for fraud or Willful Breach committed by Parent or Merger Subs, the maximum amount that the Company Indemnified Parties may recover under Section 9.2(b)(i) shall be limited to the General Cap; provided, that in the aggregatecase of any breach of the Parent Fundamental Representations and claims under Section 9.2(b)(ii), at which point the maximum aggregate amount that the Company Indemnified Parties may recover from each Parent and Merger Subs shall be limited to the aggregate Indemnifying Party Holder Proceeds.
(e) Nothing in this Article IX shall indemnify only limit the Liability of any party hereto for any breach of any representation, warranty, covenant or agreement contained in this Agreement or any Related Agreement if the First Merger does not occur.
(f) For the avoidance of doubt, (i) if and solely to the extent the amount of a Loss is recovered by an Indemnified Party through the actual payment of a Payable Claim to such aggregate claims in excess Indemnified Party, the same amount of the Deductible Amount and all resolved claims thereafter, such Loss may not be recovered again by such Indemnified Party by reason of such Loss being subject to any other applicable limitations indemnification under this Article 7. Notwithstanding any more than one provision of this Agreement and (ii) if and solely to the contraryextent that a Loss in connection with an Indemnifiable Matter was expressly taken into account in connection with calculations of the Estimated Net Working Capital, solely for the purpose Estimated Indebtedness or the Estimated Transaction Expenses pursuant to Section 2.9, the same amount of calculating the amounts payable by Seller to the Buyer Indemnified Parties such Loss may not be recovered under this Article 7IX, but, in the “Deductible Amount” shall mean case of the immediately preceding clauses (i) $250,000 less and (ii), the amount, if any, of Loss that exceeds the amount already recovered under clause (i) or already taken into account under clause (ii) shall be recoverable on and subject to the amount terms and conditions of this Article IX.
(g) The Indemnified Parties’ right to indemnification pursuant to this Article IX on account of any Losses will be reduced by all insurance or other third party indemnification or contribution proceeds actually received by the Identified Environmental LiabilitiesIndemnified Parties in respect of those Losses, net of applicable costs and expenses involved in seeking such recovery (including increases in premiums relating thereto). The Indemnified Parties shall remit to the party from which such Indemnified Party is seeking indemnification under this Section 9.3(g) (the “Indemnifying Party”), for the benefit of such other party, any such insurance or other third party proceeds that are paid to the Indemnified Parties with respect to Losses for which the Indemnified Parties have been previously indemnified pursuant to this Section 9.3(g).
Appears in 1 contract
Samples: Merger Agreement (Repligen Corp)
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount the Buyer Indemnified Parties may recover from Seller pursuant to the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement shall not be limited.
(b) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller Indemnified Party may recover from Parent or Buyer in respect of Losses arising out of (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limited.
(c) Without limiting the effect of any of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “"Deductible Amount”") in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “"Deductible Amount” " shall mean (i) $250,000 less (ii) the amount of the Identified Environmental Liabilities.
(d) Seller shall satisfy its indemnification obligations hereunder by payments comprised as follows: (i) fifty-five percent (55%) of any such payment shall be made in the form of shares of Parent common stock, which shares shall be valued for such purpose at a price per share of $1.44, and (ii) forty-five percent (45%) of any such payment shall be made in the form of cash.
(e) The right of each party hereto and its related Indemnified Parties to assert indemnification claims and receive indemnification payments pursuant to this Article 7 shall be the sole and exclusive right and remedy exercisable by such parties with respect to any breach by the other party of any representation, warranty or covenant hereunder or other matter with respect to which such indemnification is provided under any theory of liability; provided, however, that the foregoing clause of this sentence shall not be deemed a waiver by any Indemnified Party of any right to specific performance or injunctive relief, or any right or remedy they may otherwise have against any Person that has committed fraud with respect to this Agreement.
(f) Absent fraud or fraudulent misrepresentation with respect to representations and warranties contained in this Agreement or in any certificate delivered pursuant to this Agreement, or willful breaches of covenants contained in this Agreement, no Party hereto shall be entitled to recover consequential, special, incidental or punitive damages from another Party hereto, and such damages shall not be considered "Losses" under this Agreement; provided, however, that "Losses" under this Agreement shall be deemed to include any consequential, special, incidental or punitive damages payable by an Indemnified Party to a third party in relation to a claim for which indemnification may be sought under this Article 7. Except for the Deductible Amount and the $3,412,500 limit referenced in Sections 7.6(a) and 7.6(b) hereof, nothing herein shall limit the liability of Buyer, Parent or Seller for any breach or inaccuracy of any representation, warranty or covenant contained in this Agreement if the Closing does not occur.
Appears in 1 contract
Maximum Payments; Remedy. (a) Except with respect to (A) any Excluded Liabilities, (B) in the case of fraud or fraudulent intentional misrepresentation with respect to representations and warranties of Seller any representation, warranty or covenant contained in this Agreement or the Closing Certificates, and except for claims for breaches or inaccuracies of the Special Representations and Warranties, claims against the Escrow Fund shall be the Indemnified Parties sole remedy for indemnity claims under Section 7.2(a)(i) hereof, provided, that, notwithstanding the foregoing, with respect to claims of breaches or inaccuracies of the IP Representations and Warranties, Parent may, in addition to making claims against the Escrow Fund, pursue additional claims directly against the Indemnifying Parties (on a several basis in accordance with their respective Pro Rata Portions and not jointly), provided that the liability of the Indemnifying Parties in respect of such additional claims not made against the Escrow Fund with respect to the IP Representations and Warranties shall be limited in the aggregate to an amount equal to all amounts that are released at any certificate delivered time to any of the Indemnifying Parties from the Escrow Fund. For the avoidance of doubt, the limitations set forth in this Section 7.3(a) shall not apply to claims for indemnity pursuant to clauses (ii) through (ix) of Section 7.2(a) hereof.
(b) The liability of each Indemnifying Party pursuant to (i) Section 7.2(a)(i) with respect to the Special Representations and Warranties and (ii) Section 7.2(a)(ii) through (ix) shall be limited, in the aggregate, to a dollar amount equal to the aggregate portion of the Total Consideration (including such Indemnifying Party’s Pro Rata Portion of the Escrow Amount) received by such Indemnifying Party pursuant to this Agreement; provided, however, that nothing in this Agreement shall limit the liability of an Indemnifying Party in connection with a claim based on fraud or intentional misrepresentation committed by such Indemnifying Party.
(Cc) willful breaches Notwithstanding anything to the contrary in this Agreement, all claims by Seller an Indemnified Party for Losses pursuant to this Agreement (other than any such claim relating to any of the representations and warranties set forth in Section 2.2 (Company Capital Structure) or Section 2.4 (Authority) or claims pursuant to Section 7.2(a)(ii) or Section 7.2(a)(iii)) shall be satisfied: (i) first, from the Escrow Fund to the extent it is still available; and (ii) second, against the Indemnifying Parties directly, but only to the extent that such Losses cannot be recovered from the Escrow Fund.
(d) Subject to the limitations set forth in Sections 7.3(a), 7.3(b) and Section 7.3(c), in the case of any claim not made against the Escrow Fund, Parent shall be entitled to bring such claim against any or all of the Indemnifying Parties, and each Indemnifying Party shall be liable for its covenants respective Pro Rata Portion of the total liability owed to the Indemnified Parties in respect of such a claim (except that the foregoing shall not limit the liability of an Indemnifying Party who has committed fraud or intentional misrepresentation with respect to such fraud or intentional misrepresentation) .
(e) Nothing in this Article VII shall limit the liability of the Company or the Indemnifying Parties for any breach of any representation, warranty or covenant contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount the Buyer Indemnified Parties may recover from Seller pursuant to the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller in respect of Losses arising out of (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement Related Agreements or in any certificate certificates or other instruments delivered pursuant to this Agreement, and (C) willful breaches by Seller of its covenants contained in this Agreement shall if the Merger does not be limitedclose.
(bf) Except with respect Notwithstanding anything to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement, and (D) Taxes referred to in Section 2.8 hereofthe contrary herein, the maximum aggregate amount parties hereto agree and acknowledge that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller any Indemnified Party may recover from Parent bring a claim for indemnification for any Loss under this Article VII notwithstanding the fact that such Indemnified Party had knowledge of the breach, event or Buyer in respect of Losses arising out of (A) circumstance giving rise to such Loss prior to the Closing or waived any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect condition to representations and warranties of Parent or Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limitedthe Closing related thereto.
(cg) Without limiting the effect of any of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilities, and (B) any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) Notwithstanding anything in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for no Indemnified Party shall have the purpose of calculating the amounts payable by Seller right to the Buyer Indemnified Parties seek or obtain indemnification under this Article 7VII for any punitive damages, other than with respect to punitive damages owed to a third party in an indemnifiable Third Party Claim.
(h) Any indemnifiable claim with respect to any breach or nonperformance by the “Deductible Amount” Company of a representation, warranty, covenant or agreement shall mean be net of any insurance proceeds received by the Indemnified Party making such claim (net of any costs of collection, deductible, premium adjustment, reimbursement obligation or other cost resulting from the insurance claim in respect of Losses), provided that no Indemnified Party shall be required to maintain or make claims with respect to any insurance policy.
(i) $250,000 less (ii) Notwithstanding anything to the contrary contained in this Agreement, no Indemnified Party shall have any right to seek or obtain indemnification under this Agreement for any Loss or alleged Loss by such Indemnified Party, and the Loss shall not be included in meeting the Deductible Amount in Section 7.4(b)(i), to the extent the dollar amount of such Loss reduces the Identified Environmental LiabilitiesTotal Consideration because it was included in the Balance Sheet Adjustment Amount, the Third Party Expense Adjustment Amount or the Indebtedness Adjustment Amount.
Appears in 1 contract
Maximum Payments; Remedy. (a) Except with respect as set forth in Section 7.3(b) hereof, any and all recoveries for indemnification hereunder shall be limited to (A) any Excluded Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant to this Agreement, (C) willful breaches by Seller of its covenants contained in this Agreementthe Escrow Fund, and (D) Taxes referred to in Section 2.8 hereof, the maximum aggregate amount the Buyer an Indemnified Parties Party may recover from Seller a Securityholder individually pursuant to the indemnity set forth in Section 7.2 hereof for Losses shall be limited to $3,412,500. The maximum amount a Buyer Indemnified Party may recover from Seller such Securityholder’s Pro Rata Portion of the Escrow Fund.
(b) Notwithstanding anything to the contrary set forth in respect this Agreement, in the event of Losses arising out of (Ai) a breach of the Specified Representations, (ii) any Excluded Liabilities, covenant of the Company or the Securityholders set forth on Schedule 7.3(b)(ii) hereof or (Biii) any fraud or fraudulent intentional misrepresentation of a representation or willful breach of a warranty or a covenant by any Person (other than Parent and its affiliates) with respect to representations and warranties of Seller any representation, warranty or covenant contained in this Agreement or in any certificate certificates or other instruments delivered pursuant to this AgreementAgreement (subject to the terms of Schedule 7.2), each Securityholder shall be liable for (and the Escrow Fund shall not be the exclusive remedy for) all such Losses but only up to the full amount of that portion of the Aggregate Consideration Amount received by such Securityholder, provided, however, that in the case of clauses (Ci) willful breaches by Seller or (ii) the Indemnified Parties must first exhaust the full amount of its covenants contained the Escrow Fund, if available, before pursuing any claims directly against any Securityholders; and provided further that nothing in this Agreement shall not limit the liability of any Person (including any Securityholder) for any such Losses if such Person perpetrated such fraud or intentional misrepresentation or willful breach or had knowledge of the same. In addition, and notwithstanding the foregoing, the maximum amount the Indemnified Parties may recover from a Securityholder individually for Losses arising out of a breach of the representations and warranties in Section 2.11 hereof (under the heading “Tax Matters”) shall be limitedas set forth on Schedule 7.3(b) (iii) hereof.
(bc) Except with respect to (A) any Assumed Liabilities, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained Nothing in this Agreement Article VII shall limit the liability of the Company for any breach of any representation, warranty or in any certificate delivered pursuant to this Agreement, (C) willful breaches by either Parent or Buyer of its covenants covenant contained in this Agreement, and any Related Agreements or in any certificates or other instruments delivered pursuant to this Agreement if the Merger does not close.
(Dd) Taxes referred Notwithstanding anything to in Section 2.8 hereofthe contrary herein, the maximum aggregate amount parties hereto agree and acknowledge that the Seller Indemnified Parties may recover from Parent and Buyer in the aggregate under the indemnity set forth in Section 7.2 for Losses shall be limited to $3,412,500. The maximum amount a Seller any Indemnified Party may recover bring a claim for indemnification for any Loss under this Article VII notwithstanding the fact that such Indemnified Party had knowledge of the breach, event or circumstance giving rise to such Loss prior to the Closing or waived any condition to the Closing related thereto.
(e) Notwithstanding anything to the contrary herein, nothing shall prohibit Parent from seeking and obtaining recourse against the Securityholders, or any of them, in each case, severally and not jointly to the extent of such excess, in the event that Parent issues more than the Aggregate Consideration Amount to which the Securityholders, or Buyer in respect any of them, are entitled pursuant to Article I of this Agreement.
(f) Notwithstanding anything to the contrary herein, under no circumstances shall the Securityholders be liable under this Article VII (whether out of the Escrow Fund or otherwise) for any Taxes or related Losses incurred and attributable to taxable periods (or portions thereof) beginning on or after the Closing Date.
(g) Subject to Sections 7.3(b) and 7.3(c), the indemnification provisions of this Article VII shall be the exclusive remedy of the Indemnified Parties for the recovery of any Losses arising out of (A) any Assumed Liabilitiesthis Agreement, (B) fraud or fraudulent misrepresentation with respect to representations and warranties of Parent or Buyer contained in this Agreement or in any including the certificate delivered by or on behalf of the Company pursuant to Section 6.2(aa) or any other certificate delivered by or on behalf of the Company pursuant to this Agreement, and (C) willful breaches by either Parent or Buyer of its covenants contained in this Agreement shall not be limited.
(ch) Without limiting the effect Except for those damages that are awarded to a third party upon an adverse determination of any Third Party Claims in accordance with Section 7.4(j), in no event shall Losses include any liability for special, indirect, incidental, consequential or punitive damages, including loss of anticipated profits or loss or diminution of revenues or value, regardless of the other limitations set forth herein, except with respect to (A) any amount Seller may be required to pay hereunder with respect to Excluded Liabilitieslegal theory under which such liability has been asserted, and (B) no party hereto shall have any amount Buyer or Parent may be required to pay hereunder with respect to Assumed Liabilities, no Indemnifying Party shall be required to make any indemnification payment hereunder until such time as the total amount of all Losses that have been suffered or incurred and claimed against such Indemnifying Party by any one or more of the Buyer Indemnified Parties or the Seller Indemnified Parties, as the case may be, exceeds $250,000 (the “Deductible Amount”) in the aggregate, at which point the Indemnifying Party shall indemnify only the amount of such aggregate claims in excess of the Deductible Amount and all resolved claims thereafter, subject to any other applicable limitations liability under this Article 7. Notwithstanding any provision of this Agreement to the contrary, solely for the purpose of calculating the amounts payable by Seller to the Buyer Indemnified Parties under this Article 7, the “Deductible Amount” shall mean (i) $250,000 less (ii) the amount of the Identified Environmental Liabilitiesany such damages.
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