Other Indemnification by Seller. (a) Subject to Section 11.03(b), except as relates to Taxes, for which the sole indemnification is provided in Section 11.01, Seller shall indemnify Buyer, its Affiliates (including the Company and the Company Subsidiaries) and each of their respective officers, directors, employees, stockholders, agents and representatives (collectively, the “Buyer Indemnified Parties”) against and hold them harmless from all Losses suffered or incurred by any such Buyer Indemnified Party to the extent arising from (i) any breach of any representation or warranty of Seller contained in this Agreement (provided that for the purposes of the foregoing clause (i), qualifications as to “material”, “materiality”, “Material Adverse Effect” and similar qualifiers based on materiality contained in such representations or warranties shall not be given effect for purposes of calculating any Losses (but shall be given effect for purposes of determining whether a breach of such representations or warranties has occurred)), (ii) any breach of any covenant of Seller contained in this Agreement or (iii) the Restructuring Transactions. (b) Seller shall not have any liability under Section 11.03(a)(i) above: (i) unless the aggregate of all Losses relating thereto for which Seller would, but for this clause (i), be liable exceeds on a cumulative basis an amount equal to $3,000,000 (such amount, the “Deductible Amount”), and then only to the extent of any such excess; provided, however, that in no event shall the liability of Seller under Section 11.03(a)(i), together with the liability of Seller under Section 11.03(a)(iii), exceed an amount equal to $28,000,000 (such amount, the “Cap”); and provided, further, that the limitations in this Section 11.03(b)(i) shall not apply to any Losses resulting from a breach of the representations and warranties made in Section 4.01 (Authority), 4.03 (The Interest), the first sentence of Section 4.04(a) (Organization), Section 4.05 (Interest of the Company), 4.06(a) (Company Subsidiaries) but only to the extent it relates to the Significant Company Subsidiaries and Section 4.22 (Brokers) (together, the “Seller Fundamental Representations”); or (ii) for any Losses with respect to the Seller Fundamental Representations in an amount that would exceed an amount equal to the Purchase Price (such amount, the “Fundamental Representations Cap”). (c) No Losses under Section 11.03(a)(iii) are subject to the Deductible Amount; but Losses under Section 11.03(a)(iii), together with any Losses under Section 11.03(a)(i) (excluding the Seller Fundamental Representations), shall not exceed the Cap referred to above. (d) No Losses under Section 11.03(a)(ii) are subject to the Deductible Amount; but Losses under Section11.03(a)(ii), together with any Losses with respect to Seller Fundamental Representations, shall not exceed the Fundamental Representations Cap referred to above.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Microsemi Corp), Stock Purchase Agreement (Mercury Systems Inc)
Other Indemnification by Seller. (a) Subject to Section 11.03(b), except as relates to Taxes, for which the sole indemnification is provided in Section 11.01, Seller shall indemnify Buyer, its Affiliates affiliates (including the Company and the Company Subsidiarieseach Company) and each of their respective officers, directors, employees, stockholders, employees and agents and representatives (collectively, the “Buyer Indemnified Parties”) against and hold them harmless from all Losses any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such Buyer Indemnified Party indemnified party (other than any relating to Taxes, for which indemnification provisions are set forth in paragraphs (a) and (g) of this Section 9) to the extent arising from (i) any breach of any representation or warranty of Seller contained in this Agreement (provided that for the purposes of the foregoing clause (i)or in any Schedule, qualifications as to “material”certificate, “materiality”, “Material Adverse Effect” and similar qualifiers based on materiality contained in such representations instrument or warranties shall not be given effect for purposes of calculating any Losses (but shall be given effect for purposes of determining whether a breach of such representations or warranties has occurred)), other document delivered by it pursuant hereto (ii) any breach of any covenant of Seller contained in this Agreement Agreement, or (iii) the Restructuring Transactions.
(b) Seller shall not have any Excluded Liabilities, including any liability arising out of the assets, business or liabilities (contingent or otherwise) of ARI and its subsidiaries (other than those relating to the Companies). Seller's obligation to indemnify Buyer under this Section 11.03(a)(i9(b) aboveshall be subject to the following:
(A) There shall be no limitation on the amount of liability for breach of representations contained in Sections 4(a), (b), (c), (d), (e), (g) and (s);
(B) There shall be no limitation on the amount of liability for the Excluded Liabilities or the Excluded Assets;
(C) For all other obligations to indemnify under Section 9(b), Seller shall be responsible only for claims or losses (i) unless the aggregate of all Losses relating thereto for which Seller would, but for this clause (i), be liable exceeds on a cumulative basis an amount equal to exceeding $3,000,000 (such amount, the “Deductible Amount”), 300,000.00 and then only to the extent of any such excess; providedexceeding $300,000.00, however, that in no event shall the liability of Seller under Section 11.03(a)(i), together with the liability of Seller under Section 11.03(a)(iii), exceed an amount equal to $28,000,000 (such amount, the “Cap”); and provided, further, that the limitations in this Section 11.03(b)(i) shall not apply to any Losses resulting from a breach of the representations and warranties made in Section 4.01 (Authority), 4.03 (The Interest), the first sentence of Section 4.04(a) (Organization), Section 4.05 (Interest of the Company), 4.06(a) (Company Subsidiaries) but only to the extent it relates to the Significant Company Subsidiaries and Section 4.22 (Brokers) (together, the “Seller Fundamental Representations”); or
(ii) for any Losses with respect of which Seller is notified pursuant to Section 17 within one year of the Seller Fundamental Representations in an amount that would exceed an amount equal to the Purchase Price (such amount, the “Fundamental Representations Cap”)Closing.
(c) No Losses under Section 11.03(a)(iii) are subject to the Deductible Amount; but Losses under Section 11.03(a)(iii), together with any Losses under Section 11.03(a)(i) (excluding the Seller Fundamental Representations), shall not exceed the Cap referred to above.
(d) No Losses under Section 11.03(a)(ii) are subject to the Deductible Amount; but Losses under Section11.03(a)(ii), together with any Losses with respect to Seller Fundamental Representations, shall not exceed the Fundamental Representations Cap referred to above.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Leslie Resources Inc), Stock Purchase Agreement (Addington Resources Inc)
Other Indemnification by Seller. (a) Subject to Section 11.03(b), except Except as relates to Taxes, for which the sole indemnification is provided in Section 11.01, subject to Sections 11.02(b), (c) and (d), Seller shall indemnify Buyer, its Affiliates (including the Company and the Company Subsidiaries) and each of their respective officers, directors, employees, stockholders, agents and representatives (collectively, the “Buyer Indemnified Parties”) against and hold them harmless from all Losses any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such Buyer Indemnified Party indemnified party to the extent arising from (i) any breach of any representation or warranty of Seller which survives the Closing contained in this Agreement (provided that for the purposes of the foregoing clause (i)or in any certificate delivered pursuant hereto, qualifications as to “material”, “materiality”, “Material Adverse Effect” and similar qualifiers based on materiality contained in such representations or warranties shall not be given effect for purposes of calculating any Losses (but shall be given effect for purposes of determining whether a breach of such representations or warranties has occurred)), (ii) any breach of any covenant of Seller contained in this Agreement or (iii) the Restructuring TransactionsAgreement.
(b) Seller shall not have any liability under Section 11.03(a)(i11.02(a)(i) above:
(i) unless the aggregate of all Losses losses, liabilities, costs and expenses relating thereto for which Seller would, but for this clause (i), be liable exceeds on a cumulative basis an amount equal to $3,000,000 650,000 (such amount, the “Deductible Amount”), and then only to the extent of any such excess; provided, however, that in no event shall the liability of Seller under Section 11.03(a)(i), together with the liability of Seller under Section 11.03(a)(iii), 11.02(a)(i) exceed an amount equal to $28,000,000 12.5% of the Purchase Price (such 12.5% amount, the “Cap”); and provided, further, that the limitations in this Section 11.03(b)(i11.02(b)(i) shall not apply to any Losses resulting from a breach of the representations and warranties made in Section Sections 4.01 (Authority), 4.03 (The InterestShares), the 4.04 (first sentence of Section 4.04(aonly) (OrganizationOrganization and Standing), Section or 4.05 (Interest Capital Stock of the Company), 4.06(a) (Company Subsidiaries) but only to the extent it relates to the Significant Company Subsidiaries and Section 4.22 (Brokers) (together, the “Seller Fundamental Representations”); or;
(ii) for any Losses losses, liabilities, costs and expenses with respect to (A) the Seller Fundamental Representations (other than Section 4.03 and 4.05) in an amount that would exceed an amount equal to 50% of the Purchase Price (such 50% amount, the “Fundamental Representations Cap”) or (B) Section 4.03 and 4.05 in an amount that would exceed an amount equal to the Purchase Price Price; or
(iii) with respect to any matter to the extent that such amountmatter was reflected in the calculation of the Working Capital Adjustment, the “Fundamental Representations Cap”)if any, pursuant to Section 2.02.
(c) No Losses Seller shall not have any liability under Section 11.03(a)(iii11.02(a)(ii) are subject above for any losses, liabilities, costs and expenses relating thereto in an amount that would exceed an amount equal to the Deductible Amount; but Losses under Section 11.03(a)(iii), together with any Losses under Section 11.03(a)(i) (excluding the Seller Fundamental Representations), shall not exceed the Cap referred to abovePurchase Price.
(d) No Losses under Section 11.03(a)(ii) are 11.02 is subject to Section 11.02 of the Deductible Amount; but Losses under Section11.03(a)(ii), together with any Losses with respect to Seller Fundamental Representations, shall not exceed the Fundamental Representations Cap referred to aboveDisclosure Schedule.
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Other Indemnification by Seller. (a) Subject to Section 11.03(b), except as relates to Taxes, for which the sole indemnification is provided in Section 11.01, Seller shall indemnify Buyer, its Affiliates affiliates (including the Company and the Company Subsidiarieseach Company) and each of their respective officers, directors, employees, stockholders, employees and agents and representatives (collectively, the “Buyer Indemnified Parties”) against and hold them harmless from all Losses any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such Buyer Indemnified Party indemnified party (other than any relating to Taxes and STC, for which indemnification provisions are set forth in paragraphs (a), (g) and (h) of this Section 9) to the extent arising from (i) any breach of any representation or warranty of Seller contained in this Agreement (provided that for the purposes of the foregoing clause (i)or in any Schedule, qualifications as to “material”certificate, “materiality”, “Material Adverse Effect” and similar qualifiers based on materiality contained in such representations instrument or warranties shall not be given effect for purposes of calculating any Losses (but shall be given effect for purposes of determining whether a breach of such representations or warranties has occurred)), other document delivered by it pursuant hereto (ii) any breach of any covenant of Seller contained in this Agreement requiring performance after the Closing Date or (iii) any Excluded Liabilities. Seller's obligation to indemnify Buyer under this Section 9(b) shall be subject to the Restructuring Transactions.
(b) Seller shall not have any liability under Section 11.03(a)(i) abovefollowing:
(iA) unless Subject to the aggregate limitations specified in Section 9(i) hereof, there shall be no other limitation on the amount of all Losses relating thereto ability for which Seller would, but for this clause (ibreach of representations contained in Sections 4(a), be liable exceeds on a cumulative basis an amount equal to $3,000,000 (such amount, the “Deductible Amount”b), (c), (d), (e), (g) and then only to (s);
(B) There shall be no limitation on the extent amount of liability for obligations of any such excess; provided, however, that in no event shall Company which by the liability express terms of Seller under Section 11.03(a)(i), together with the liability this Agreement are not to be obligations of Seller under Section 11.03(a)(iii), exceed an amount equal to $28,000,000 (such amount, the “Cap”); and provided, further, that the limitations in this Section 11.03(b)(i) shall not apply to any Losses resulting from a breach Company as of the representations and warranties made in Section 4.01 (Authority), 4.03 (The Interest), the first sentence of Section 4.04(a) (Organization), Section 4.05 (Interest Closing but instead are to be distributed out of the Company), 4.06(a) (Company Subsidiaries) but only by not later than the Closing or are to be retained by Seller specifically including the extent it relates to the Significant Company Subsidiaries and Section 4.22 (Brokers) (together, the “Seller Fundamental Representations”); orExcluded Liabilities;
(iiC) for any Losses with respect For all other obligations to the indemnify, Seller Fundamental Representations in an amount that would exceed an amount equal to the Purchase Price (such amount, the “Fundamental Representations Cap”).
(c) No Losses under Section 11.03(a)(iii) are subject to the Deductible Amount; but Losses under Section 11.03(a)(iii), together with any Losses under Section 11.03(a)(i) (excluding the Seller Fundamental Representations), shall not exceed the Cap referred to above.
(d) No Losses under Section 11.03(a)(ii) are subject to the Deductible Amount; but Losses under Section11.03(a)(ii), together with any Losses with respect to Seller Fundamental Representations, shall not exceed the Fundamental Representations Cap referred to above.be responsible as follows:
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Other Indemnification by Seller. (a) Subject to Section 11.03(b), except Except as relates to Taxes, for which the sole indemnification is provided in Section 11.01, Seller shall indemnify Buyer, its Affiliates (including the Company and the Company SubsidiariesClairol Entities) and each of their respective officers, directors, employees, stockholders, agents and representatives (collectively, the “Buyer Indemnified Parties”) against and hold them harmless from all Losses any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such Buyer Indemnified Party indemnified party to the extent arising from (i) any breach of any representation or warranty of Seller contained in this Agreement (provided that for or in any certificate delivered pursuant hereto, in each case, which survives the purposes of the foregoing clause (i), qualifications as to “material”, “materiality”, “Material Adverse Effect” and similar qualifiers based on materiality contained in such representations or warranties shall not be given effect for purposes of calculating any Losses (but shall be given effect for purposes of determining whether a breach of such representations or warranties has occurred))Closing, (ii) any breach of any covenant of Seller contained in this Agreement or any Other Transaction Document, (iii) any failure of Seller to perform or satisfy any employee benefit obligations or liabilities specifically retained by Seller under Article IX, (iv) all Excluded Liabilities or (v) any breach by Buyer or any of its Affiliates of the Restructuring Transactions.
Agreements set forth in Section 11.02(a)(v) of the Seller Disclosure Schedule. Notwithstanding the foregoing, (bA) Seller shall not have any liability under Section 11.03(a)(i) above:
clause (i) or clause (ii) of this Section 11.02(a) (in the case of clause (ii), only with respect to breaches of covenants that occur prior to Closing) unless the aggregate of all Losses losses, liabilities, costs and expenses relating thereto for which Seller would, but for this clause (iA), be liable exceeds on a cumulative basis an amount equal to $3,000,000 (such amount, 1% of the “Deductible Amount”)Purchase Price, and then only to the extent of any such excess; provided, however, that in no event shall the liability of Seller under Section 11.03(a)(i), together with the liability of Seller under Section 11.03(a)(iii), exceed an amount equal to $28,000,000 (such amount, the “Cap”); and provided, further, that the limitations in this Section 11.03(b)(i) shall not apply to any Losses resulting from a breach of the representations and warranties made in Section 4.01 (Authority), 4.03 (The Interest), the first sentence of Section 4.04(a) (Organization), Section 4.05 (Interest of the Company), 4.06(a) (Company Subsidiaries) but only to the extent it relates to the Significant Company Subsidiaries and Section 4.22 (Brokers) (together, the “Seller Fundamental Representations”); or
(ii) for any Losses with respect to the Seller Fundamental Representations in an amount that would exceed an amount equal to the Purchase Price (such amount, the “Fundamental Representations Cap”).
(c) No Losses under Section 11.03(a)(iii) are subject to the Deductible Amount; but Losses under Section 11.03(a)(iii), together with any Losses under Section 11.03(a)(i) (excluding the Seller Fundamental Representations), shall not exceed the Cap referred to above.
(d) No Losses under Section 11.03(a)(ii) are subject to the Deductible Amount; but Losses under Section11.03(a)(ii), together with any Losses with respect to Seller Fundamental Representations, shall not exceed the Fundamental Representations Cap referred to above.76
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Procter & Gamble Co)
Other Indemnification by Seller. (a) Subject to the limitations set forth in Section 11.03(b)7.05, except as relates from and after the Closing, Parent and Seller shall, jointly and severally, indemnify, defend and hold harmless the Purchaser Indemnitees against any and all claims, losses, damages, liabilities, obligations or expenses, including reasonable third-party legal fees and expenses (collectively, "LOSSES") (other than any Loss relating to Taxes, for which the sole indemnification is provided indemnifi cation provisions are set forth in Section 11.017.01), Seller shall indemnify Buyer, its Affiliates (including the Company and the Company Subsidiaries) and each of their respective officers, directors, employees, stockholders, agents and representatives (collectively, the “Buyer Indemnified Parties”) against and hold them harmless from all Losses suffered or incurred by any such Buyer Indemnified Party to the extent arising or resulting from any of the following:
(i) any breach of any representation or warranty of Parent or Seller contained in this Agreement (provided that for the purposes of the foregoing clause (i), qualifications as to “material”, “materiality”, “Material Adverse Effect” and similar qualifiers based on materiality contained in such representations or warranties shall not be given effect for purposes of calculating any Losses (but shall be given effect for purposes of determining whether a breach of such representations or warranties has occurred)), Agreement;
(ii) any breach of any covenant of Parent or Seller contained in this Agreement or Agreement;
(iii) any fees, expenses or other payments incurred or owed by Parent or Seller or the Restructuring Transactions.Company to any agent, broker, investment banker or other firm or person retained or employed by it in connection with the transactions contemplated by this Agreement;
(biv) Seller shall not have any liability under Section 11.03(a)(iof the Excluded Liabilities;
(v) above:the operation or ownership of the Excluded Assets; and
(vi) all monetary payments made, or any other costs incurred by, the Company or its subsidiaries in respect of Actions pending against the Company or its subsidiaries prior to the date hereof as and to the extent they cumulatively exceed $2,000,000; PROVIDED that (i) unless to the extent the aggregate monetary payments to be made, or any other costs incurred by Purchaser exceed $4,000,000 but are equal to or less than $6,000,000 the Purchaser shall not be indemnified for 50% of all Losses relating thereto the amount in excess of $4,000,000 and (ii) to the extent that the aggregate monetary payments to be made or costs incurred by Purchaser exceeds $6,000,000 in the aggregate, Purchaser shall not be indemnified for which any amount in excess of $6,000,000. For the avoidance of doubt, in no case shall Parent or Seller would, but be responsible for more than $3,000,000 pursuant to this clause (i), be liable exceeds on a cumulative basis an amount equal to $3,000,000 (such amount, the “Deductible Amount”), and then only to the extent of any such excess; provided, however, that in no event shall the liability of Seller under Section 11.03(a)(i), together with the liability of Seller under Section 11.03(a)(iii), exceed an amount equal to $28,000,000 (such amount, the “Cap”); and provided, further, that the limitations in this Section 11.03(b)(i) shall not apply to any Losses resulting from a breach of the representations and warranties made in Section 4.01 (Authority), 4.03 (The Interest), the first sentence of Section 4.04(a) (Organization), Section 4.05 (Interest of the Company), 4.06(a) (Company Subsidiaries) but only to the extent it relates to the Significant Company Subsidiaries and Section 4.22 (Brokers) (together, the “Seller Fundamental Representations”); or
(ii) for any Losses with respect to the Seller Fundamental Representations in an amount that would exceed an amount equal to the Purchase Price (such amount, the “Fundamental Representations Cap”vi).
(c) No Losses under Section 11.03(a)(iii) are subject to the Deductible Amount; but Losses under Section 11.03(a)(iii), together with any Losses under Section 11.03(a)(i) (excluding the Seller Fundamental Representations), shall not exceed the Cap referred to above.
(d) No Losses under Section 11.03(a)(ii) are subject to the Deductible Amount; but Losses under Section11.03(a)(ii), together with any Losses with respect to Seller Fundamental Representations, shall not exceed the Fundamental Representations Cap referred to above.
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Other Indemnification by Seller. (a) Subject to Section 11.03(b), except Except as relates to Taxes, for which the sole indemnification is provided in Section 11.0111.1, Seller shall indemnify Buyer, its Affiliates (including the Company and the Company SubsidiariesSubsidiary) and each of their respective officers, directors, employees, stockholders, agents and representatives (collectively, the “Buyer Indemnified Parties”) representa tives against and hold them harmless from all Losses any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such Buyer Indemnified Party indemnified party to the extent arising from (i) any breach of any representation or warranty of Seller which survives the Closing contained in this Agreement (provided that for the purposes of the foregoing clause (i), qualifications as to “material”, “materiality”, “Material Adverse Effect” or in any certificate delivered pursuant hereto and similar qualifiers based on materiality contained in such representations or warranties shall not be given effect for purposes of calculating any Losses (but shall be given effect for purposes of determining whether a breach of such representations or warranties has occurred)), (ii) any breach of any covenant of Seller contained in this Agreement or (iii) the Restructuring Transactions.
(b) Agreement; provided, however, that Seller shall not have any liability under Section 11.03(a)(i) above:
clauses (i) and (ii) above unless the aggregate of all Losses losses, liabilities, costs and expenses relating thereto (except those related to a breach of the representations or warranties contained in Section 4.1, the first sentence of Section 4.3(a) and Section 4.5, for which there shall be no minimum) for which Seller would, but for this clause (i)proviso, be liable exceeds on a cumulative basis an amount equal to $3,000,000 (such amount, the “Deductible Amount”)3,000,000, and then only to the extent of any such excess; providedprovided further, however, that Seller shall not have any liability under clauses (i) and (ii) above for any individual items where the loss, liability, cost or expense relating thereto (except those related to a breach of the representations or warranties contained in Section 4.1, the first sentence of Section 4.3 and Section 4.5, for which there shall be no minimum) is less than $25,000 and such items shall not be aggregated for purposes of the first proviso to this Section 11.2; and provided further, however, that Seller's liability under clauses (i) and (ii) above shall in no event shall exceed $185,000,000(except in the liability case of Seller under Section 11.03(a)(i), together with the liability of Seller under Section 11.03(a)(iii), exceed an amount equal to $28,000,000 (such amount, the “Cap”); and provided, further, that the limitations in this Section 11.03(b)(i) shall not apply to any Losses resulting from a breach of the representations and warranties made contained in Section 4.01 (Authority), 4.03 (The Interest)4.1, the first sentence of Section 4.04(a4.3(a) and Section 4.5, for which Seller's liability under clause (Organizationi) above in respect of such breach together with Seller's liability under clauses (i) and (ii) above in the aggregate shall in no event exceed the Cash Purchase Price); and provided further, however, that Seller shall not have any liability under this Section 4.05 (Interest of the Company), 4.06(a) (Company Subsidiaries) but only 11.2 to the extent it relates the liability or obligation arises as a result of any action taken or omitted to the Significant Company Subsidiaries and Section 4.22 (Brokers) (together, the “be taken by Buyer or any of its Affiliates. In no event shall Seller Fundamental Representations”); or
(ii) for be obligated to indemnify Buyer or any Losses other person with respect to the Seller Fundamental Representations in an amount that would exceed an amount equal any matter to the extent that such matter was reflected in the calculation of the adjustment to the Cash Purchase Price (such amountPrice, if any, pursuant to Section 2.2 or the “Fundamental Representations Cap”)calculation of the adjustment to the Non-U.S. Inventory Purchase Price, if any, pursuant to Section 2.3.
(cb) No Losses under Section 11.03(a)(iii) are subject to Buyer further acknowledges and agrees that, should the Deductible Amount; but Losses under Section 11.03(a)(iii)Closing occur, together with any Losses under Section 11.03(a)(i) (excluding the Seller Fundamental Representations), shall not exceed the Cap referred to above.
(d) No Losses under Section 11.03(a)(ii) are subject to the Deductible Amount; but Losses under Section11.03(a)(ii), together with any Losses its sole and exclusive remedy with respect to any and all claims relating to this Agreement, the transactions contemplated hereby, the Company and the Subsidiary and their respective assets, liabilities and business (other than claims of, or causes of action arising from, fraud or willful and knowing breach) shall be pursuant to the indemnification provisions set forth in this Section 11 or pursuant to the indemnification provisions stated in the other Transaction Agreements, as applicable. In furtherance of the foregoing, Buyer hereby waives, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud or willful and knowing breach) it, the Company or the Subsidiary may have against Seller Fundamental Representationsand its Affiliates arising under or based upon any Federal, shall not exceed state, local or foreign statute, law, ordinance, rule or regulation or otherwise (except pursuant to the Fundamental Representations Cap referred to aboveindemnification provisions set forth in this Section 11).
Appears in 1 contract
Other Indemnification by Seller. (a) Subject to Section 11.03(b11.02(b), except as relates to Taxes, for which the sole indemnification is provided in Section 11.01, Seller shall indemnify Buyer, its Affiliates (including the Company and the Company SubsidiariesCompany) and each of their respective officers, directors, employees, stockholders, agents and representatives (collectively, the “Buyer Indemnified Parties”) against and hold them harmless from all Losses any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such Buyer Indemnified Party indemnified party to the extent arising from (i) any breach of any representation or warranty of Seller which survives the Closing contained in this Agreement (provided that for the purposes of the foregoing clause (i), qualifications as to “material”, “materiality”, “Material Adverse Effect” or in any certificate delivered pursuant hereto and similar qualifiers based on materiality contained in such representations or warranties shall not be given effect for purposes of calculating any Losses (but shall be given effect for purposes of determining whether a breach of such representations or warranties has occurred)), (ii) any breach of any covenant of Seller contained in this Agreement or (iii) requiring performance prior to the Restructuring TransactionsClosing Date.
(b) Seller shall not have any liability under Section 11.03(a)(i11.02(a)(i) above:
(i) unless the aggregate of all Losses losses, liabilities, costs and expenses relating thereto for which Seller would, but for this clause (i), be liable exceeds on a cumulative basis an amount equal to $3,000,000 (such amount, the “Deductible Amount”)450,000, and then only to the extent of any such excess; provided, however, that in no event shall the liability of Seller under Section 11.03(a)(i), together with the liability of Seller under Section 11.03(a)(iii), 11.02(a) exceed an amount equal to $28,000,000 (such amount, the “Cap”)11,000,000; and provided, further, that the limitations in this Section 11.03(b)(iclause (i) shall not apply to any Losses resulting from a breach of the representations and warranties made in Section Sections 4.01 (Authority), 4.03 (The InterestShares), the first sentence of Section 4.04(a) (Organization), Section or 4.05 (Interest Capital Stock of the Company), 4.06(a) (Company Subsidiaries) but only to the extent it relates to the Significant Company Subsidiaries and Section 4.22 (Brokers) (together, the “Seller Fundamental Representations”); or;
(ii) for any Losses losses, liabilities, costs and expenses with respect to (x) the Seller Fundamental Representations (other than the last sentence of Section 4.01) in an amount that would exceed an amount equal to $70,000,000 and (y) the Purchase Price (such amount, the “Fundamental Representations Cap”).last sentence of Section 4.01 in an amount that would exceed $7,500,000; or
(ciii) No Losses under Section 11.03(a)(iii) are subject to the Deductible Amount; but Losses under Section 11.03(a)(iii), together with any Losses under Section 11.03(a)(i) (excluding the Seller Fundamental Representations), shall not exceed the Cap referred to above.
(d) No Losses under Section 11.03(a)(ii) are subject to the Deductible Amount; but Losses under Section11.03(a)(ii), together with any Losses with respect to Seller Fundamental Representationsany matter to the extent that such matter was reflected in the calculation of the Working Capital Adjustment, shall not exceed the Fundamental Representations Cap referred if any, pursuant to aboveSection 2.02.
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Other Indemnification by Seller. (a) Subject to Section 11.03(b), except Except as relates to Taxes, for which the sole indemnification is provided in Section 11.01, Seller shall indemnify Buyer, its Affiliates (including the Company and the Company SubsidiariesCompany) and each of their respective officers, directors, employees, stockholders, agents and representatives (collectively, the “Buyer Indemnified Parties”) against and hold them harmless from all Losses any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such Buyer Indemnified Party indemnified party to the extent arising from (i) (x) any breach of any representation or warranty of Seller contained in this Agreement (provided that for the purposes of the foregoing clause (ior in any certificate delivered pursuant hereto, other than a breach related to Section 4.07(b), qualifications as to “material”, “materiality”, “Material Adverse Effect” and similar qualifiers based on materiality contained in such representations each case which survives the Closing or warranties shall not be given effect for purposes of calculating (y) any Losses (but shall be given effect for purposes of determining whether a breach of Section 4.07(b) (including to the extent such representations or warranties has occurred)representation is remade in any certificate delivered pursuant hereto), (iiii)(x) any breach of Section 5.01, 5.02 or 5.03 or (y) any breach of any other covenant of Seller contained in this Agreement or any Related Instrument and (iii) any breach by Seller of its covenants under Article IX. Notwithstanding the Restructuring Transactions.
foregoing, (bA) Seller shall not have any liability under clause (i)(x) or (ii)(x) of this Section 11.03(a)(i) above:
(i11.02(a) unless the aggregate of all Losses losses, liabilities, costs and expenses relating thereto for which Seller would, but for this clause (iA), be liable exceeds on a cumulative basis an amount equal to $3,000,000 (such amount, the “Deductible Amount”)500,000, and then only to the extent of any such excess; provided(B) Seller shall not have any liability under clause (i)(y) of this Section 11.02 unless the aggregate of all losses, howeverliabilities, that in no event shall the liability of costs and expenses relating thereto for which Seller under Section 11.03(a)(iwould, but for this clause (B), together with the liability of Seller under Section 11.03(a)(iii), exceed be liable exceeds on a cumulative basis an amount equal to $28,000,000 1,000,000 and then only to the extent of such excess; (C) Seller shall not have any liability under clause (i)(x) or (ii)(x) of this Section 11.02(a) for any individual item or series of related items where the loss, liability, cost or expense relating thereto is less than $50,000 and such amount, items shall not be aggregated for purposes of the “Cap”foregoing clause (A) of this Section 11.02(a); and provided, further, that the limitations in (D) Seller shall not have any liability under clause (i) or under clause (ii)(x) of this Section 11.03(b)(i11.02(a) for any breach if Buyer had knowledge of such breach at the time of the Closing; (E) Seller’s liability under clause (i) and under clause (ii)(x) of Section 11.02(a), in aggregate, shall in no event exceed 50% of the Adjusted Purchase Price; and (F) Seller shall not apply have any liability under this Section 11.02(a) to the extent the liability or obligation arises as a result of any action taken or omitted to be taken by Buyer or any of its Affiliates. In no event shall Seller be obligated to indemnify Buyer or any other person with respect to any Losses resulting from a breach matter to the extent that such matter was reflected in the calculation of the adjustment to the Purchase Price, if any, pursuant to Section 2.02.
(b) Buyer acknowledges and agrees that, (i) other than the representations and warranties made of Seller specifically contained in Section 4.01 (Authority)this Agreement, 4.03 (The Interest), the first sentence there are no representations or warranties of Section 4.04(a) (Organization), Section 4.05 (Interest of the Company), 4.06(a) (Company Subsidiaries) but only to the extent it relates to the Significant Company Subsidiaries and Section 4.22 (Brokers) (together, the “Seller Fundamental Representations”); or
(ii) for any Losses either expressed or implied with respect to the Seller Fundamental Representations in an amount that would exceed an amount equal to the Purchase Price (such amounttransactions contemplated hereby, the Company or its assets, liabilities and business and (ii) Buyer shall have no claim or right to indemnification pursuant to this Article XI with respect to any information, documents or materials (other than this Agreement, the Seller Disclosure Schedule and any certificate delivered pursuant to this Agreement) furnished by Seller or any of its officers, directors, employees, agents or advisors to Buyer, including the Confidential Offering Memorandum distributed by J.X. Xxxxxx Securities Inc. dated November 2000 and any information, documents or material made available to Buyer or its representatives in certain “Fundamental Representations Capdata rooms”), management presentations or any other form in expectation of the transactions contemplated hereby.
(c) No Losses under Section 11.03(a)(iii) are subject Buyer further acknowledges and agrees that, should the Closing occur, its sole and exclusive remedy with respect to any breach of any representation or warranty of Seller contained in this Agreement or in any certificate delivered pursuant hereto, in each case which survives the Closing, and any breach of any covenant of Seller contained in this Agreement or any Related Instrument requiring performance prior to the Deductible Amount; but Losses Closing (other than claims of, or causes of action arising from, fraud) shall be pursuant to the indemnification provisions set forth in this Article XI. In furtherance of the foregoing, Buyer hereby waives, from and after the Closing, to the fullest extent permitted under Section 11.03(a)(iiiApplicable Law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud) it or any of its Affiliates (including in the case of Buyer after the Closing, the Company) may have against Seller and its Affiliates arising under or based upon any breach of any representation or warranty of Seller contained in this Agreement or in any certificate delivered pursuant hereto, in each case which survives the Closing, and any breach of any covenant of Seller contained in this Agreement or any Related Instrument requiring performance prior to the Closing (except pursuant to the indemnification provisions set forth in this Article XI), together with any Losses under Section 11.03(a)(i) (excluding the Seller Fundamental Representations), shall not exceed the Cap referred to above.
(d) No Losses under Section 11.03(a)(ii) are subject At the election of Seller, Seller may satisfy its obligations to make any payments due to Buyer or any of its Affiliates pursuant to this Article XI either by payment by wire transfer in immediately available funds or by returning that number of Buyer Common Shares equal to the Deductible Amount; but Losses under Section11.03(a)(ii)quotient of the payments due hereunder divided by the Determination Price. If Seller elects to satisfy its payment obligation in Buyer Common Stock, together with any Losses with respect Seller shall deliver to Seller Fundamental RepresentationsBuyer the certificate representing the Shares in exchange for a new certificate representing that number of shares of Buyer Common Stock equal to the difference between the Shares held at the time of payment and that number of shares of Buyer Common Stock to be returned, shall not exceed as calculated as described in the Fundamental Representations Cap referred to abovepreceding sentence.
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Samples: Purchase Agreement (Deltagen Inc)
Other Indemnification by Seller. (a) Subject to Section 11.03(b), except as relates to Taxes, for which the sole indemnification is provided in Section 11.01, Seller shall indemnify Buyer, its Affiliates affiliates (including the Company and the Company SubsidiariesCompany) and each of their respective officers, directors, employees, stockholders, agents and representatives (collectively, the “Buyer Indemnified Parties”) against and hold them harmless from all Losses any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such Buyer Indemnified Party indemnified party (other than any relating to Taxes and environmental matters, for which indemnification provisions are set forth in Sections 11(a) and 11(b), respectively) to the extent arising from from, relating to or otherwise in respect of (i) any breach of any representation or warranty of Seller which survives the Closing contained in this Agreement or in any certificate delivered pursuant hereto (provided it being agreed and acknowledged by the parties that for the purposes of Buyer's right to indemnification pursuant to this Section 11(c) the foregoing clause (i), qualifications as representations and warranties of Seller contained herein shall not be deemed qualified by any references herein to “material”, “materiality”, “materiality generally or to whether or not any such breach results or may result in a Seller Material Adverse Effect” and similar qualifiers based on materiality contained in such representations or warranties shall not be given effect for purposes of calculating any Losses (but shall be given effect for purposes of determining whether a breach of such representations or warranties has occurred)), (ii) any breach of any covenant of Seller contained in this Agreement or and (iii) the Restructuring Transactions.
(b) all Retained Liabilities; provided, however, that Seller shall not have any liability under Section 11.03(a)(i) above:
clause (i) above unless the aggregate of all Losses losses, liabilities, costs and expenses relating thereto for which Seller would, but for this clause (i)proviso, be liable exceeds on a cumulative basis an amount equal to $3,000,000 1,600,000 (such amount, in which case Seller shall be liable for the “Deductible Amount”full amount thereof), and then only to the extent of any such excess; providedprovided further, however, that Seller shall not have any liability under clause (i) above for any individual items where the loss, liability, cost or expense relating thereto is less than $10,000 and such items shall not be aggregated for purposes of the first proviso to this Section 11(c); and provided further, however, that Seller's liability under clause (i) above shall in no event shall the liability of Seller under Section 11.03(a)(i), together with the liability of Seller under Section 11.03(a)(iii), exceed an amount equal to $28,000,000 16,000,000 66 61 (such amount, the “Cap”); and provided, further, except that the limitations in this Section 11.03(b)(i) proviso shall not apply to any Losses resulting from a wilful breach of the representations and warranties made in Section 4.01 (Authorityany covenant by Seller), 4.03 (The Interest), the first sentence of Section 4.04(a) (Organization), Section 4.05 (Interest of the Company), 4.06(a) (Company Subsidiaries) but only . In no event shall Seller be obligated to indemnify Buyer or any other person with respect to any matter to the extent it relates that (A) Seller has already provided indemnity for such matter pursuant to this Agreement or (B) such matter was reflected in the Significant Company Subsidiaries and calculation of Closing Net Working Capital pursuant to Section 4.22 (Brokers) (together, the “Seller Fundamental Representations”); or
(ii) for any Losses with respect to the Seller Fundamental Representations in an amount that would exceed an amount equal to the Purchase Price (such amount, the “Fundamental Representations Cap”2(b).
(c) No Losses under Section 11.03(a)(iii) are subject to the Deductible Amount; but Losses under Section 11.03(a)(iii), together with any Losses under Section 11.03(a)(i) (excluding the Seller Fundamental Representations), shall not exceed the Cap referred to above.
(d) No Losses under Section 11.03(a)(ii) are subject to the Deductible Amount; but Losses under Section11.03(a)(ii), together with any Losses with respect to Seller Fundamental Representations, shall not exceed the Fundamental Representations Cap referred to above.
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Samples: Stock Purchase Agreement (S a Louis Dreyfus Et Cie Et Al)
Other Indemnification by Seller. (a) Subject to Section 11.03(b), except as relates to Taxes, for which the sole indemnification is provided in Section 11.01, Seller shall indemnify Buyer, ------------------------------- its Affiliates affiliates (including the Company and the Company Subsidiarieseach Company) and each of their respective officers, directors, employees, stockholders, employees and agents and representatives (collectively, the “Buyer Indemnified Parties”) against and hold them harmless from all Losses any loss, liability, claim, damage or expense (including reasonable legal fees and expenses) suffered or incurred by any such Buyer Indemnified Party indemnified party (other than any relating to Taxes and STC, for which indemnification provisions are set forth in paragraph (a), (g) and (h) of this Section 9) to the extent arising from (i) any breach of any representation or warranty of Seller contained in this Agreement (provided that for the purposes of the foregoing clause (i)or in any Schedule, qualifications as to “material”certificate, “materiality”, “Material Adverse Effect” and similar qualifiers based on materiality contained in such representations instrument or warranties shall not be given effect for purposes of calculating any Losses (but shall be given effect for purposes of determining whether a breach of such representations or warranties has occurred)), other document delivered by it pursuant hereto (ii) any breach of any covenant of Seller contained in this Agreement requiring performance after the Closing Date or (iii) any Excluded Liabilities. Seller's obligation to indemnify Buyer under this Section 9(b) shall be subject to the Restructuring Transactions.
(b) Seller shall not have any liability under Section 11.03(a)(i) abovefollowing:
(iA) unless Subject to the aggregate limitations specified in Section 9(i) hereof, there shall be no other limitation on the amount of all Losses relating thereto liability for which Seller would, but for this clause (ibreach of representations contained in Sections 4(a), be liable exceeds on a cumulative basis an amount equal to $3,000,000 (such amount, the “Deductible Amount”b), (c), (d), (e), (g) and then only to (s);
(B) There shall be no limitation on the extent amount of liability for obligations of any such excess; provided, however, that in no event shall Company which by the liability express terms of Seller under Section 11.03(a)(i), together with the liability this Agreement are not to be obligations of Seller under Section 11.03(a)(iii), exceed an amount equal to $28,000,000 (such amount, the “Cap”); and provided, further, that the limitations in this Section 11.03(b)(i) shall not apply to any Losses resulting from a breach Company as of the representations and warranties made in Section 4.01 (Authority), 4.03 (The Interest), the first sentence of Section 4.04(a) (Organization), Section 4.05 (Interest Closing but instead are to be distributed out of the Company), 4.06(a) (Company Subsidiaries) but only by not later than the Closing or are to be retained by Seller specifically including the extent it relates to the Significant Company Subsidiaries and Section 4.22 (Brokers) (together, the “Seller Fundamental Representations”); orExcluded Liabilities;
(iiC) for any Losses with respect For all other obligations to the indemnify, Seller Fundamental Representations in an amount that would exceed an amount equal to the Purchase Price (such amount, the “Fundamental Representations Cap”).
(c) No Losses under Section 11.03(a)(iii) are subject to the Deductible Amount; but Losses under Section 11.03(a)(iii), together with any Losses under Section 11.03(a)(i) (excluding the Seller Fundamental Representations), shall not exceed the Cap referred to above.
(d) No Losses under Section 11.03(a)(ii) are subject to the Deductible Amount; but Losses under Section11.03(a)(ii), together with any Losses with respect to Seller Fundamental Representations, shall not exceed the Fundamental Representations Cap referred to above.be responsible as follows:
Appears in 1 contract
Samples: Stock Purchase Agreement (Princess Beverly Coal Holding Co Inc)
Other Indemnification by Seller. (a) Subject to Section 11.03(b)From and after the Closing, except as relates Seller shall indemnify each Purchaser Indemnitee against, and hold it harmless from, any Loss suffered or incurred by such Purchaser Indemnitee (other than any Loss relating to Taxes, for which the sole indemnification is provided provisions are set forth in Section 11.01, Seller shall indemnify Buyer, its Affiliates (including the Company and the Company Subsidiaries7.01) and each of their respective officers, directors, employees, stockholders, agents and representatives (collectively, the “Buyer Indemnified Parties”) against and hold them harmless from all Losses suffered or incurred by any such Buyer Indemnified Party to the extent arising from from:
(i) any breach of any representation or warranty of Seller (other than any representation or warranty of Seller set forth in Section 3.11) contained in this Agreement (or in any certificate delivered pursuant hereto; provided that for the purposes of this Section 7.02, the foregoing clause existence of any breach of any representation and warranty (i), qualifications other than of Section 3.14) and the amount of Losses resulting therefrom shall be determined without giving effect to any qualification contained therein as to “material”materiality, “materiality”, “Seller Material Adverse Effect” and similar qualifiers based on materiality contained in such representations or warranties shall not be given effect for purposes of calculating any Losses (but shall be given effect for purposes of determining whether a breach of such representations or warranties has occurred)), “Company Material Adverse Effect”;
(ii) any breach of any covenant or agreement of Seller contained in this Agreement or Agreement;
(iii) the Restructuring TransactionsExcluded Assets and the Excluded Liabilities, including any costs associated with the transfer or conveyance of the Excluded Assets and the Excluded Liabilities from the Companies to the Seller Group as contemplated by Section 1.03; and
(iv) the matters set forth on Schedule 7.02(a) (“Specified Environmental Liabilities”).
(b) Seller shall not be required to indemnify any Purchaser Indemnitee, and shall not have any liability under Section 11.03(a)(i) aboveliability:
(i) under clause (i) of Section 7.02(a) unless the aggregate of all Losses relating thereto for which Seller would, but for this clause (i), be liable thereunder exceeds on a cumulative basis an amount equal to $3,000,000 (such amount, the “Deductible Amount”)2,500,000, and then only to the extent of any such excess; provided, however, that in no event shall the liability of Seller under Section 11.03(a)(i), together with the liability of Seller under Section 11.03(a)(iii), exceed an amount equal to $28,000,000 this clause (such amount, the “Cap”); and provided, further, that the limitations in this Section 11.03(b)(ii) shall not apply to any Losses resulting from claim for indemnification arising out of a breach or alleged breach of the representations and warranties made in Section 4.01 (Authority2.01, 2.02, 2.05, 3.02(a), 4.03 (The Interest), 3.18 or 3.19 or the first sentence of Section 4.04(a3.01(a) (Organization), Section 4.05 (Interest of the Company), 4.06(a) (Company Subsidiaries) but only to the extent it relates to the Significant Company Subsidiaries and Section 4.22 (Brokers) (togethercollectively, the “Fundamental Seller Fundamental RepresentationsRepresentations and Warranties”); or;
(ii) under clause (i) of Section 7.02(a) for any Losses with respect individual items or series of related items where the Loss relating thereto is less than $150,000, and such items shall not be aggregated for purposes of clause (i) of this Section 7.02(b); provided, however, that this clause (ii) shall not apply to any claim for indemnification arising out of a breach or alleged breach of a Fundamental Seller Representation and Warranty;
(iii) under clause (i) of Section 7.02(a) in excess of $50,000,000 in the aggregate; provided, however, that this clause (iii) shall not apply to any claim for indemnification arising out of a breach or alleged breach of a Fundamental Seller Fundamental Representations Representation and Warranty; and
(iv) under clause (i) of Section 7.02(a) in an amount that would exceed an amount equal to excess of the Purchase Price (such amountin the aggregate for all claims for indemnification arising out of a breach or alleged breach of any representation or warranty, the “including any Fundamental Representations Cap”)Seller Representation and Warranty.
(c) No Losses under Section 11.03(a)(iii) are subject to Except as otherwise specifically provided in this Agreement, Purchaser acknowledges that its sole and exclusive monetary remedy after the Deductible Amount; but Losses under Section 11.03(a)(iii), together with any Losses under Section 11.03(a)(i) (excluding the Seller Fundamental Representations), shall not exceed the Cap referred to above.
(d) No Losses under Section 11.03(a)(ii) are subject to the Deductible Amount; but Losses under Section11.03(a)(ii), together with any Losses Closing with respect to Seller Fundamental Representationsany and all claims relating to this Agreement, the Acquisition and the other transactions contemplated hereby, any Company and their assets and Liabilities (other than claims of, or causes of action arising from, fraud) shall not exceed be pursuant to the Fundamental Representations Cap referred to aboveindemnification provisions set forth in this Article VII.
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