Scope of Seller’s Liability. (a) Notwithstanding any other provision of this Agreement to the contrary, from and after the Closing, except for Claims arising from Fraud, the R&W Insurance Policy shall be the sole and exclusive source of funds for the satisfaction of all Claims of the Buyer Indemnitees for which indemnity is sought under Sections 9.1(a), 10.2(a) and 10.2(e) hereunder, and, from and after the Closing, recourse to the R&W Insurance Policy shall be the sole and exclusive remedy for the Buyer Indemnitees for such Claims. For the avoidance of doubt, in the event that Buyer does not obtain the R&W Insurance Policy, Seller is not responsible for, and has no Liability with respect to, Claims brought under Sections 9.1(a), 10.2(a) and 10.2(e) hereunder, except, and solely with respect to, Taxes arising out of any breach of any Tax Covenant pursuant to Section 9.1(a)(ii)(A) as incorporated by Section 10.2(e). (b) Indemnification for Buyer Indemnitees under Sections 10.2(b) and (c) or for Seller Indemnitees under Sections 10.3(b) or (c) shall be available to Buyer Indemnitees or Seller Indemnitees, as applicable, only for Losses, in the aggregate, up to the amount of the Purchase Price actually received by Seller (the “Cap”). No Buyer Indemnitee nor Seller Indemnitee shall have any right to indemnification under Sections 10.2(b) or (c) or Sections 10.3(b) or (c), as applicable, for any individual item where the Losses relating thereto are less than U.S.$7,000 and such Losses shall not be taken into account in determining whether the Cap have been reached. (c) Notwithstanding anything to the contrary contained in this Section 10.4, none of the limitations set forth in Section 10.4(a) or Section 10.4(b) shall apply with respect to Losses (and such Losses shall not be taken into account in determining the Cap) (i) in respect of any of the Excluded Liabilities and Seller’s responsibility therefor or (ii) in respect of any Claim for Fraud or injunctive or provisional relief (including specific performance); provided that, notwithstanding anything else in this Article X, Seller’s maximum Liability with respect to indemnification of the Buyer Indemnitees for such Losses shall be an amount equal to the amount of the Purchase Price actually received by Seller. (d) Each party shall, and shall cause its respective Buyer Indemnitees or Seller Indemnitees to, as applicable, use commercially reasonable efforts to mitigate any Losses upon becoming aware of any event that would reasonably be expected to give rise thereto. (e) In no event shall Seller be obligated to indemnify any Buyer Indemnitee with respect to any matter to the extent that such matter was reflected in the calculation of the adjustments to the Purchase Price, if any, pursuant to Section 2.3.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ashland Global Holdings Inc)
Scope of Seller’s Liability. (a) Notwithstanding any other provision of this Agreement to the contrary, from and after the Closing, except for Claims arising from Fraud, the R&W Insurance Policy shall be the sole and exclusive source of funds for the satisfaction of all Claims of the Buyer Indemnitees for which indemnity is sought under Sections 9.1(a), 10.2(a) and 10.2(e) hereunder, and, from and after the Closing, recourse to the R&W Insurance Policy shall be the sole and exclusive remedy for the Buyer Indemnitees for such Claims. For the avoidance of doubt, in the event that Buyer does not obtain the R&W Insurance Policy, Seller is not responsible for, and has no Liability with respect to, Claims brought under Sections 9.1(a), 10.2(a) and 10.2(e) hereunder, except, and solely with respect to, Taxes arising out of any breach of any Tax Covenant pursuant to Section 9.1(a)(ii)(A) as incorporated by Section 10.2(e).
(b) Indemnification for Buyer Indemnitees under Sections 10.2(b) and (c) or for Seller Indemnitees under Sections 10.3(b) or (c) shall be available to Buyer Indemnitees under clause (i) of Section 10.2 with respect to breaches of representations or Seller Indemnitees, as applicable, warranties (other than any Fundamental Representations) and under clause (vi) of Section 10.2 only for Losses, in the aggregate, up to the extent the aggregate amount of Losses otherwise due to Buyer Indemnitees for all claims for such indemnification exceeds two percent of the Purchase Price actually received by Seller (the “Basket”) and then indemnification shall be available to Buyer Indemnitees for the amount of all Losses due to Buyer Indemnitees in excess of such amount, but only for all such Losses up to a maximum amount of all payments due to Buyer Indemnitees of ten percent of the Purchase Price (the “Cap”). No Buyer Indemnitee nor Seller Indemnitee shall not have any right liability under clause (i) of Section 10.2 with respect to indemnification under Sections 10.2(b) breaches of representations or warranties (c) or Sections 10.3(b) or (cother than any Fundamental Representations), as applicable, under clause (ii) of Section 10.2 with respect to breaches of the covenants set forth in Section 7.2 or under clause (vi) of Section 10.2 for any individual item where the Losses relating thereto thereto, together with Losses relating to related items, are less than U.S.$7,000 $200,000 and such Losses shall not be taken into account in determining whether the Basket or Cap have been reached.
(b) Without limiting the limitations of Section 10.4(a), indemnification shall be available to Buyer Indemnitees, under clause (i) of Section 10.2 with respect to breaches of representations and warranties, including Fundamental Representations, and under clause (ii) of Section 10.2 only to the extent the aggregate amount of Losses due to Buyer Indemnitees for all claims for such indemnification does not exceed the aggregate Purchase Price.
(c) Notwithstanding anything to the contrary contained in this Section 10.4, none of the limitations set forth in Section 10.4(a) or Section 10.4(b) shall apply with respect to Losses (and such Losses shall not be taken into account in determining the Basket or the Cap) (i) in respect of any Losses referred to in clauses (iv), (v), (vii) and (viii) of the Excluded Liabilities Section 10.2 and Seller’s responsibility therefor or (ii) in respect of any Claim for Fraud fraud or injunctive or provisional relief (including specific performance); provided that, notwithstanding anything else in this Article X, Seller’s maximum Liability with respect to indemnification of the Buyer Indemnitees for such Losses shall be an amount equal to the amount of the Purchase Price actually received by Seller.
(d) Each party shall, and shall cause its respective Buyer Indemnitees or Seller Indemnitees to, as applicable, use commercially reasonable efforts to mitigate any Losses upon becoming aware of any event that would reasonably be expected to give rise thereto.
(e) In no event shall Seller be obligated to indemnify any Buyer Indemnitee with respect to any matter to the extent that such matter was reflected in the calculation of the adjustments adjustment to the Purchase Price, if any, pursuant to Section 2.3.
Appears in 1 contract
Scope of Seller’s Liability. Indemnification will be available to Purchaser Indemnitees under Section 10.1(a), (ai) Notwithstanding any other provision of this Agreement only to the contraryextent the aggregate amount of Damages otherwise due to Purchaser Indemnitees for all claims for such indemnification exceeds $250,000 (the “Deductible”), from and after then indemnification will be available to Purchaser Indemnitees for the Closingamount of all payments due to Purchaser Indemnitees under Section 10.1(a) in excess of the Deductible, except for Claims but only to the extent such Damages do not exceed $4,300,000 (the “General Representation Cap”) and (ii) with respect to any individual claim, only to the extent that the Damages arising from Fraudunder any individual item (or series of related items) exceeds $35,000 (the “Per Claim Threshold”). Notwithstanding the foregoing, the R&W Insurance Policy shall be Deductible, the sole General Representation Cap and exclusive source of funds for the satisfaction of all Claims of the Buyer Indemnitees for which indemnity is sought under Sections 9.1(a), 10.2(aPer Claim Threshold will not apply to Damages arising or resulting from (1) and 10.2(e) hereunder, and, from and after the Closing, recourse to the R&W Insurance Policy shall be the sole and exclusive remedy for the Buyer Indemnitees for such Claims. For the avoidance of doubt, in the event that Buyer does not obtain the R&W Insurance Policy, Seller is not responsible for, and has no Liability with respect to, Claims brought under Sections 9.1(a), 10.2(a) and 10.2(e) hereunder, except, and solely with respect to, Taxes arising out of any breach of any Tax Covenant pursuant to covenant or obligation of Seller contained in this Agreement, (2) a breach of, or inaccuracy in, any of the representations and warranties set forth in Section 9.1(a)(ii)(A5.1, Section 5.2, Section 5.6.1, and Section 5.14 (collectively, the “Fundamental Representations and Warranties”), (3) as incorporated by Section 10.2(e).
(b) Indemnification for Buyer Indemnitees under Sections 10.2(b) and (c) or for Seller Indemnitees under Sections 10.3(b) any Excluded Liability, or (c4) shall be available common law fraud committed by or on behalf of the Seller in connection with the Transactions. Notwithstanding anything to Buyer Indemnitees or Seller Indemnitees, as applicable, only for Lossesthe contrary in this Agreement, in no event shall the aggregate, up to the Seller be liable for any amount in excess of the Purchase Price actually received by the Seller (the “Cap”). No Buyer Indemnitee nor Seller Indemnitee shall have any right to indemnification under Sections 10.2(b) or (c) or Sections 10.3(b) or (c), as applicableincluding, for clarity, in the case of any individual item where breach of any covenant (other than the Losses relating thereto are less than U.S.$7,000 and such Losses shall not be taken into account in determining whether the Cap have been reached.
(c) Notwithstanding anything to the contrary contained in this Section 10.4, none of the limitations non-competition covenant set forth in Section 10.4(a7.3) or Section 10.4(b) shall apply with respect to Losses (obligation of Seller contained in this Agreement or any breach of, or inaccuracy in, any Fundamental Representations and such Losses Warranties); provided, however, that the foregoing limitation shall not be taken into account apply in determining the Cap) (i) in respect case of any common law fraud committed by or on behalf of the Excluded Liabilities and Seller’s responsibility therefor Seller or (ii) in respect breach by Seller or any Affiliate of any Claim for Fraud or injunctive or provisional relief (including specific performance); provided that, notwithstanding anything else in this Article X, Seller’s maximum Liability with respect to indemnification Seller of the Buyer Indemnitees for such Losses shall be an amount equal to the amount of the Purchase Price actually received by Sellernon-competition covenant set forth in Section 7.3.
(d) Each party shall, and shall cause its respective Buyer Indemnitees or Seller Indemnitees to, as applicable, use commercially reasonable efforts to mitigate any Losses upon becoming aware of any event that would reasonably be expected to give rise thereto.
(e) In no event shall Seller be obligated to indemnify any Buyer Indemnitee with respect to any matter to the extent that such matter was reflected in the calculation of the adjustments to the Purchase Price, if any, pursuant to Section 2.3.
Appears in 1 contract
Samples: Asset Purchase Agreement (Kindred Biosciences, Inc.)
Scope of Seller’s Liability. (a) Notwithstanding any other provision of this Agreement to the contrary, from and after the Closing, except for Claims arising from Fraudfraud or breaches of the Fundamental Representations, the Retention and the R&W Insurance Policy shall be the sole and exclusive source of funds for the satisfaction of all Claims of the Buyer Indemnitees for which indemnity is sought that are subject to indemnification under Sections 9.1(a), Section 10.2(a) and 10.2(e) hereunder, and, from and after the Closing, recourse to the Retention and the R&W Insurance Policy shall be the sole and exclusive remedy remedies for the Buyer Indemnitees for such Claims. For the avoidance breach of doubt, in the event that Buyer does not obtain the R&W Insurance Policy, Seller is not responsible for, and has no Liability this Agreement with respect to, Claims brought under Sections 9.1(a)or any Claim based in whole or in part on, 10.2(a) and 10.2(e) hereunder, except, and solely with respect or directly or indirectly related to, Taxes any of Seller’s representations and warranties (other than Claims arising out from fraud or breaches of any breach of any Tax Covenant pursuant to Section 9.1(a)(ii)(Athe Fundamental Representations) as incorporated in connection with the transactions contemplated by Section 10.2(e)this Agreement.
(b) Indemnification for Buyer Indemnitees under Sections 10.2(b) and (c) or for Seller Indemnitees under Sections 10.3(b) or (c) shall be available to Buyer Indemnitees under Section 10.2(a) with respect to breaches of representations and warranties (other than Claims arising from fraud or breaches of the Fundamental Representations) only to the extent the aggregate amount of Losses otherwise due to Buyer Indemnitees for all Claims for such indemnification exceeds U.S.$ 4,125,000 (the “Basket”) and then indemnification shall be available to Buyer Indemnitees from Seller Indemnitees, as applicable, only for Losses, in the aggregate, amount of all payments due to Buyer Indemnitees up to the Retention and thereafter the Buyer Indemnitees sole recourse for the amount of all payments due to Buyer Indemnitees shall be the Purchase Price actually received by Seller (the “Cap”)R&W Insurance Policy. No Buyer Indemnitee nor Seller Indemnitee Indemnitees shall have any no right to indemnification under Sections 10.2(bSection 10.2(a) with respect to breaches of representations and warranties (other than Claims arising from fraud or (cbreaches of the Fundamental Representations) or Sections 10.3(b) or (c), as applicable, for any individual item where the Losses relating thereto are less than U.S.$7,000 U.S.$500,000 and such Losses shall not be taken into account in determining whether the Cap have Basket has been reached.
(c) With respect to Claims arising from breaches of the Fundamental Representations pursuant to Section 10.2(a) and the Pre-Closing Tax Indemnity pursuant to Sections 9.1(a) and 10.2(e), indemnification shall be available to the Buyer Indemnitees from Seller for the amount of all payments due to Buyer Indemnitees up to the entire amount of the retention due under the R&W Insurance Policy, then indemnification shall be available to the Buyer Indemnities from the R&W Insurance Policy, to the extent coverage is available thereunder, and then indemnification shall be available to the Buyer Indemnities from Seller; provided that Seller shall only be liable for Losses, other than the amount of the retention due under the R&W Insurance Policy, in excess of the total amounts paid to Buyer under the R&W Insurance Policy with respect to such Claims. Notwithstanding anything else in this Article X, Seller’s maximum Liability with respect to indemnification of the Buyer Indemnitees (i) for breaches of the Fundamental Representations pursuant to Section 10.2(a), and the Pre-Closing Tax Indemnity pursuant to Section 9.1(a) and Section 10.2(e) shall be an amount equal to the amount of the Purchase Price actually received by Seller (together with its designated Affiliates pursuant to Section 2.2(a)) minus the amounts paid to Buyer pursuant to the R&W Insurance Policy and (ii) for breaches of covenants or agreements pursuant to Sections 10.2(b) and (c) shall be an amount equal to the amount of the Purchase Price actually received by Seller (together with its designated Affiliates pursuant to Section 2.2(a)).
(d) Prior to pursuing any Claim against Seller (other than for the amount of the retention due under the R&W Insurance Policy) arising from breaches of the Fundamental Representations pursuant to Section 10.2(a) and the Pre-Closing Tax Indemnity pursuant to Sections 9.1(a) and 10.2(e), Buyer shall, on behalf of itself and all other applicable Buyer Indemnitees, use reasonable best efforts to recover any such Losses which may be available with respect to the fact or matter underlying such Claim under the R&W Insurance Policy before making any Claim against Seller hereunder.
(e) Notwithstanding anything to the contrary contained in this Section 10.4, none of the limitations set forth in Section Sections 10.4(a) or through Section 10.4(b10.4(d) shall apply with respect to Losses (and such Losses shall not be taken into account in determining the CapBasket or any cap) (i) in respect of any of the Excluded Liabilities and Seller’s responsibility therefor or (ii) in respect of any Claim claim for Fraud fraud or injunctive or provisional relief (including specific performance); provided that, notwithstanding anything else in this Article X, Seller’s maximum Liability with respect to indemnification of the Buyer Indemnitees for such Losses shall be an amount equal to the amount of the Purchase Price actually received by Seller.
(d) Each party shall, and shall cause its respective Buyer Indemnitees or Seller Indemnitees to, as applicable, use commercially reasonable efforts to mitigate any Losses upon becoming aware of any event that would reasonably be expected to give rise thereto.
(ef) In no event shall Seller be obligated to indemnify any Buyer Indemnitee with respect to any matter to the extent that such matter was reflected in the calculation of the adjustments to the Purchase Price, if any, pursuant to Section 2.3Sections 2.3 or 2.4.
(g) For purposes of determining the amount of any Loss in respect of the failure of any representation or warranty to be true and correct as of any particular date, any standard or qualification as to “materiality” or “Material Adverse Effect” in such representation or warranty shall be disregarded.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Ashland Global Holdings Inc)
Scope of Seller’s Liability. Notwithstanding anything to the contrary in Article X or this Article XI, Seller shall not have any liability for indemnification to the Buyer Indemnitees:
(a) under Section 11.2(a)(i), in respect of any individual claim or series of related claims, for Losses relating thereto unless and until the claim or series of related claims against Seller in respect of such Losses exceeds $100,000; provided, however, that this Section shall not apply to any claim for indemnification arising out of the Fraud of Seller;
(b) under Section 11.2(a)(i), in excess of Fifteen Million U.S. Dollars ($15,000,000); provided, however, that this Section shall not apply to any claim for indemnification arising out of the Fraud of Seller; and
(c) in excess of the Purchase Price, which shall be the cumulative indemnification obligation of Seller under Article X or this Article XI; provided, however, that this Section shall not apply to any claim for indemnification arising out of the Fraud of Seller. The obligations of Seller to indemnify and hold harmless any Buyer Indemnitees (i) pursuant to Section 11.2(a)(i) shall terminate when the applicable representation or warranty terminates pursuant to Section 11.1(a), (ii) pursuant to Section 11.2(a)(ii) shall terminate upon such time as the applicable covenants are otherwise terminated in accordance with their respective terms, and (iii) pursuant to the other clauses of Section 11.2(a) shall not terminate; provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the Buyer Indemnitees shall have, before the expiration of the applicable period, previously made a claim by delivering a notice of such claim pursuant to Section 11.8 to Seller. Notwithstanding any other provision of anything in this Agreement to the contrary, from and after the Closing, except for Claims arising from Fraud, the R&W Insurance Policy shall be the sole and exclusive source of funds for the satisfaction of all Claims none of the Buyer Indemnitees for which indemnity is sought limitations contained in this Agreement shall limit recovery otherwise available under Sections 9.1(a), 10.2(a) and 10.2(e) hereunder, and, from and after the Closing, recourse to the R&W Insurance Policy shall be the sole and exclusive remedy for the Buyer Indemnitees for such Claims. For the avoidance of doubt, in the event that Buyer does not obtain the R&W Insurance Policy, Seller is not responsible for, and has no Liability with respect to, Claims brought under Sections 9.1(a), 10.2(a) and 10.2(e) hereunder, except, and solely with respect to, Taxes arising out of any breach of any Tax Covenant pursuant to Section 9.1(a)(ii)(A) as incorporated by Section 10.2(e).
(b) Indemnification for Buyer Indemnitees under Sections 10.2(b) and (c) or for Seller Indemnitees under Sections 10.3(b) or (c) shall be available to Buyer Indemnitees or Seller Indemnitees, as applicable, only for Losses, in the aggregate, up to the amount of the Purchase Price actually received by Seller (the “Cap”). No Buyer Indemnitee nor Seller Indemnitee shall have any right to indemnification under Sections 10.2(b) or (c) or Sections 10.3(b) or (c), as applicable, for any individual item where the Losses relating thereto are less than U.S.$7,000 and such Losses shall not be taken into account in determining whether the Cap have been reached.
(c) Notwithstanding anything to the contrary contained in this Section 10.4, none of the limitations set forth in Section 10.4(a) or Section 10.4(b) shall apply with respect to Losses (and such Losses shall not be taken into account in determining the Cap) (i) in respect of any of the Excluded Liabilities and Seller’s responsibility therefor or (ii) in respect of any Claim for Fraud or injunctive or provisional relief (including specific performance); provided that, notwithstanding anything else in this Article X, Seller’s maximum Liability with respect to indemnification of the Buyer Indemnitees for such Losses shall be an amount equal to the amount of the Purchase Price actually received by Seller.
(d) Each party shall, and shall cause its respective Buyer Indemnitees or Seller Indemnitees to, as applicable, use commercially reasonable efforts to mitigate any Losses upon becoming aware of any event that would reasonably be expected to give rise thereto.
(e) In no event shall Seller be obligated to indemnify any Buyer Indemnitee with respect to any matter to the extent that such matter was reflected in the calculation of the adjustments to the Purchase Price, if any, pursuant to Section 2.3.
Appears in 1 contract
Samples: Equity and Asset Purchase Agreement (Huntsman International LLC)
