Limitations on Indemnification Clause Samples
POPULAR SAMPLE Copied 4 times
Limitations on Indemnification. (a) Notwithstanding anything to the contrary contained in this Article 10, except in the case of fraudulent misrepresentation or a breach of any Seller Fundamental Representations, in no event shall Seller’s aggregate liability for Losses that may be recovered by the Buyer Indemnified Parties under Section 10.1(a) exceed the Purchase Price (the “Cap”).
(b) Notwithstanding anything to the contrary contained in this Article 10, except in the case of fraudulent misrepresentation or a breach of any Buyer Fundamental Representation, in no event shall Buyer’s aggregate liability for Losses that may be recovered by the Seller Indemnified Parties under Section 10.2(a) exceed the Cap.
(c) Notwithstanding any provision in this Agreement to the contrary, all Losses for which any Indemnified Party would otherwise be entitled to indemnification under Section 10.1 or Section 10.2 shall be reduced by the amount of insurance proceeds, net Tax benefits, indemnification payments and other third-party recoveries actually realized in respect of any Losses incurred by such Indemnified Party (after deducting any costs incurred by such Indemnified Party in collecting such recoveries). In the event any Indemnified Party is entitled to any insurance proceeds, net Tax benefits, indemnity payments or any third-party recoveries in respect of any Losses for which such Indemnified Party is entitled to indemnification pursuant to Section 10.1 or Section 10.2, such Indemnified Party shall use reasonable efforts to obtain, receive or realize such proceeds, benefits, payments or recoveries. In the event that any such insurance proceeds, net Tax benefits, indemnification payments or other third-party recoveries are realized by an Indemnified Party subsequent to receipt by such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, net Tax benefits, indemnification payments or other third-party recoveries relate, the Indemnified Party shall promptly remit all or the relevant portion of such indemnification payment to the Indemnifying Party (after deducting any costs incurred by such Indemnified Party in collecting such recoveries).
(d) For purposes of determining the obligation to indemnify for the existence of any breach of any representation or warranty, pursuant to Section 10.1, and for calculating the amount of any Losses incurred in connection with and such breach of representation or warranty, any and all references to “mat...
Limitations on Indemnification. (a) No claim for indemnification in connection with Losses related to Seller’s breach of a representation or warranty contained in this Agreement may be brought or maintained by any Buyer Indemnitee unless and until the aggregate dollar amount of all Losses sought by the Buyer Indemnitees equals or exceeds US$150,000 (the “Buyer Threshold Amount”), in which event Seller shall be responsible for, and shall hold the Buyer Indemnitees harmless from, any and all such Losses in excess of the Buyer Threshold Amount; provided, further, however, that Buyer shall only be entitled to recover the APA Shares (at the average closing price on the TASE thirty days prior to the time of the a final judgment of the Claim or settlement agreement is entered into by the Parties) that were issued pursuant to this Agreement and shall not be entitled to any monetary indemnification in addition to such shares other than as related to Seller’s use of the Assets prior to the Closing for which the indemnification for Losses will be monetary.
(b) No claim for indemnification in connection with Losses related to Buyer’s breach of a representation or warranty contained in this Agreement may be brought or maintained by any Seller Indemnitee unless and until the aggregate dollar amount of all Losses sought by the Seller Indemnitees equals or exceeds US$150,000 (the “Seller Threshold Amount”), in which event Buyer shall be responsible for, and shall hold the Seller Indemnitees harmless from, any and all such Losses in excess of the Seller Threshold Amount.
(c) No Indemnifying Party shall be liable for any portion of a Loss to the extent that a court of competent jurisdiction shall have determined by a final judgment that such Loss or portion thereof resulted primarily and directly from the willful misconduct or bad faith of the any of the Indemnified Parties (as applicable).
(d) The amount of any Loss for which indemnification is provided under Section 6.1 or Section 6.2 shall be net of any amounts actually recovered by the Buyer Indemnitees or the Seller Indemnitees, respectively, under insurance policies with respect to such Loss and shall be (i) reduced (or increased) to take account of any net tax benefit (or cost) realized by the respective Indemnified Parties arising from the incurrence or payment of any such Loss and (ii) increased to take account of any increase in insurance premiums following such insurance recovery.
(e) No Party’s indemnification obligations under Section 6.1 or ...
Limitations on Indemnification. No payments pursuant to this Agreement shall be made by the Company:
(a) To indemnify or advance funds to the Indemnitee for Expenses with respect to (i) Proceedings initiated or brought voluntarily by the Indemnitee and not by way of defense, except with respect to Proceedings brought to establish or enforce a right to indemnification under this Agreement or any other statute or law or otherwise as required under applicable law or (ii) Expenses incurred by the Indemnitee in connection with preparing to serve or serving, prior to a Change in Control, as a witness in cooperation with any party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification or advancement of Expenses in each such case may be provided by the Company if the Board finds it to be appropriate;
(b) To indemnify the Indemnitee for any Expenses, judgments, fines, interest or penalties, or excise taxes assessed with respect to any employee benefit or welfare plan, sustained in any Proceeding for which payment is actually made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance;
(c) To indemnify the Indemnitee for any Expenses, judgments, fines, interest or penalties sustained in any Proceeding for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Act or similar provisions of any foreign or United States federal, state or local statute or regulation;
(d) To indemnify the Indemnitee for any Expenses, judgments, fines, interest or penalties, or excise taxes assessed with respect to any employee benefit or welfare plan, for which the Indemnitee is indemnified by the Company otherwise than pursuant to this Agreement;
(e) To indemnify the Indemnitee for any Expenses (including without limitation any Expenses relating to a Proceeding attempting to enforce this Agreement), judgments, fines, interest or penalties, or excise taxes assessed with respect to any employee benefit or welfare plan, on account of the Indemnitee’s conduct if such conduct shall be finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful misconduct, including, without limitation, breach of the duty of loyalty; or...
Limitations on Indemnification. TCI, Newco, the Surviving Corporation and the other persons or entities indemnified pursuant to Section 11.1 or 11.2 shall not assert any claim for indemnification hereunder against the Stockholders until such time as, and solely to the extent that, the aggregate of all claims which such persons may have against such the Stockholders shall exceed the greater of (a) 1.0% of the sum of (i) the cash paid to Stockholders plus (ii) the value of the TCI Stock delivered to Stockholders (calculated as provided in this Section 11.5) or (b) $100,000 (the "Indemnification Threshold"). Except with respect to the right to receive the merger consideration as set forth on Annex I, the Stockholders shall not assert any claim for indemnification hereunder against TCI or Newco until such time as, and solely to the extent that, the aggregate of all claims which the Stockholders may have against TCI or Newco shall exceed the Indemnification Threshold. No person shall be entitled to indemnification under this Section 11 if and to the extent that such person's claim for indemnification is directly or indirectly related to a breach by such person of any representation, warranty, covenant or other agreement set forth in this Agreement. Notwithstanding any other term of this Agreement, no Stockholder shall be liable under this Section 11 for an amount which exceeds the amount of proceeds received by such Stockholder in connection with the Merger. For purposes of calculating the value of the TCI Stock received by a Stockholder, TCI Stock shall be valued at its initial public offering price as set forth in the Registration Statement. It is hereby agreed that a Stockholder shall have the right to satisfy an indemnification obligation through payment of a combination of stock and cash in proportion equal to the proportion of stock and cash received by such Stockholder in connection with the Merger, valued as described immediately above, but shall also have the right to satisfy any such obligation in cash.
Limitations on Indemnification. (a) A Party may assert a claim for indemnification hereunder only to the extent the Indemnitee gives notice of such claim to the Indemnifying Party in accordance with Section 9.3 prior to the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based, if any, set forth in Section 9.1.
(b) Notwithstanding any other provision of this Article IX:
(i) Except as provided in Section 9.4(b)(iii), in no event shall either Party be liable for indemnification pursuant to Section 9.2(a)(i), Section 9.2(a)(iv) or Section 9.2(b)(i) hereof (i) for any item or items arising out of the same facts, events or circumstances where the Indemnifiable Loss relating thereto is less than $100,000 and (ii) in respect of each individual item where the Indemnifiable Loss relating thereto is equal to or greater than $100,000, unless and until the aggregate of all Indemnifiable Losses which are incurred or suffered by the Buyer Indemnitees or Seller Indemnitees, respectively, exceeds 2% of the Purchase Price, in which case the Buyer Indemnitees or Seller Indemnitees, as applicable, shall be entitled, subject to Section 9.4(b)(ii), to indemnification for (A) 50% of all such Indemnifiable Losses up to 2% of the Purchase Price and (B) all such Indemnifiable Losses in excess of 2% of the Purchase Price. All Indemnifiable Losses arising under Section 9.2(a)(iv) shall be deemed to be a single item for purposes of the foregoing.
(ii) Except as provided in Section 9.4(b)(iii), neither Seller nor Buyer shall be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of twelve and on-half percent (12.5%) of the Purchase Price.
(iii) The limitations specified in Section 9.4(b)(i) and Section 9.4(b)(ii) shall not apply to Indemnifiable Losses arising out of any breach of any of the representations and warranties in Sections 5.1, 5.2, 5.8, 5.13, 5.17, 6.1, 6.2, or 6.5, but in no case shall either Seller or Buyer be required to make payments for indemnification pursuant to Section 9.2(a)(i) or Section 9.2(b)(i), respectively, in an aggregate amount in excess of one hundred percent (100%) of the Purchase Price.
(c) Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties expressly contained in Article V and the Seller Disclosure Schedules, neither Seller nor any other Person is making...
Limitations on Indemnification. 10.4.1. To the extent that any circumstance giving rise to indemnification under this Section 10 is reasonably capable of being remedied by the Indemnifying Person (as defined below), the Indemnified Person (as defined below) shall afford the Indemnifying Person such opportunity as is reasonable to remedy such circumstance.
10.4.2. No indemnification shall be payable to any Buyer Indemnified Person under Section 10.2.1 or to any Seller Indemnified Person under Section 10.3.1, until the aggregate amount of all Losses incurred by all Buyer Indemnified Persons or all Seller Indemnified Persons, as the case may be, exceeds US$300,000 (Three Hundred Thousand United States Dollars), whereupon Buyer Indemnified Persons or Seller Indemnified Persons, as the case may be, shall be entitled to receive the full amount of all Losses (i.e., including the first US$300,000 (Three Hundred Thousand United States Dollars) of such Losses);
10.4.3. The maximum aggregate liability of Seller pursuant to Section 10.2.1 and of Buyer pursuant to 10.3.1 shall be the equal to $5,250,000 (Five ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars) (the “Maximum Indemnification Amount”), except for claims arising from fraud or willful misrepresentation, to which the Maximum Indemnification Amount shall not apply;
10.4.4. Anything herein to the contrary notwithstanding, Buyer shall not be entitled to recover any indirect, consequential, special, exemplary, punitive or similar damages, except to the extent that such damages are awarded to a third party in a Third Party Claim (as defined below);
10.4.5. No claims for indemnification against any Indemnifying Person (as such term is defined below) under this Section 10, may be made following the expiration of the Survival Date, with the exception only of claims based on fraud or willful misrepresentation, which shall survive for the period of their statutory limitation.
10.4.6. As security for the indemnity provided by Seller for in Section 10.2.1 above only, at the Closing, the Buyer shall deposit a portion of the cash amount of the Purchase Price payable at the Closing with the Escrow Agent as detailed below (the "Escrow Amount"), to be governed by the terms set forth in the Escrow Agreement. The Escrow Amount shall be deposited into an interest bearing account and interest earned thereon will be held and distributed in accordance with the Escrow Agreement. The Escrow Amount to be deposited shall equal the result of the followin...
Limitations on Indemnification. (a) Notwithstanding the provisions of Section 7.2, Seller shall not be required to indemnify or hold harmless any of Buyer Indemnified Parties on account of any Buyer Indemnified Losses under Section 7.2 unless the liability of Seller in respect of such Buyer Indemnified Loss, when aggregated with the liability of Seller in respect of all Buyer Indemnified Losses under Section 7.2, exceeds $250,000 (the “Threshold Amount”), in which event Buyer Indemnified Parties shall be entitled to indemnification from Seller in an amount equal to the aggregate amount of the Buyer Indemnified Losses. In no event shall the aggregate liability of Seller under Section 7.2 of this Agreement exceed $2,000,000 (the “Ceiling Amount”). Notwithstanding the foregoing, neither the Threshold Amount nor the Ceiling Amount shall be applicable to indemnification pursuant to Section 7.2(iii) or Section 7.2(iv) or with respect to the representations and warranties of Seller set forth in the first and second sentences of Section 3.2, Section 3.2(e), Section 3.8 and Section 3.10. Seller may satisfy any obligations arising pursuant to this Article 7 in any combination of cash or the surrender of Consideration Units for redemption (valued at $21.00 per Consideration Unit); provided that, Seller must provide written notice to Buyer of the intent to make a payment (in whole or in part) by surrendering Consideration Units for redemption at least five business days prior to the due date of any such payment.
(b) Notwithstanding the provisions of Section 7.3, Buyer shall not be required to indemnify or hold harmless any of the Seller Indemnified Parties on account of any Seller Indemnified Loss under Section 7.3 unless the liability of Buyer in respect of such Seller Indemnified Loss, when aggregated with the liability of Buyer in respect of all Seller Indemnified Losses under Section 7.3, exceeds the Threshold Amount, in which event Seller Indemnified Parties shall be entitled to indemnification from Buyer in an amount equal to the aggregate amount of the Seller Indemnified Losses exceed the Threshold Amount. In no event shall Buyer be liable under Section 7.3 of this Agreement for any amount in excess of the Ceiling Amount. Notwithstanding the foregoing, neither the Threshold Amount nor the Ceiling Amount shall be applicable to indemnification pursuant to Section 7.3(iii) or Section 7.3(iv) or with respect the representations and warranties of Buyer set forth in Section 4.6.
(c) The amount of i...
Limitations on Indemnification. (a) The Securityholders shall have no liability pursuant to Section 8.2(a)(i) or Section 8.2(b)(i) with respect to Losses except to the extent that the aggregate amount of such Losses exceeds an amount equal to $3,000,000 (the “Basket”); provided, that, in the event the Basket is exceeded, all of the applicable Losses from the first Dollar shall, subject to the other terms and conditions hereof, be recoverable; and; provided, further, that this Section 8.4(a) shall not apply to any breach of any representation and warranty based on Fraud or intentional misrepresentation of a material fact (but not negligent misrepresentation).
(b) The Securityholders shall have no liability pursuant to Section 8.2(a)(i) or Section 8.2(b)(i) with respect to Losses in excess of the Indemnity Escrow Amount, and the Indemnity Escrow Amount fund and Earnout setoffs contemplated in Section 8.8 shall be the sole sources of recovery by a Buyer Indemnified Person in respect of such Losses (and in the priorities contemplated in Section 8.8); provided, that this Section 8.4(b) shall not apply to any breach of any representation and warranty based on Fraud or intentional misrepresentation of a material fact (but not negligent misrepresentation).
(c) The Securityholders shall have no liability pursuant to Section 8.2(a)(i) or Section 8.2(b)(i) for Losses in respect of any individual claim unless such Losses arising from such individual claim exceed $15,000; provided, that this Section 8.4(c) shall not apply to any breach of any representation and warranty based on Fraud or intentional misrepresentation of a material fact (but not negligent misrepresentation).
(d) Other than with respect to Fraud or intentional misrepresentation of a material fact (but not negligent misrepresentation), (i) no Securityholder (other than Key Members) shall have any liability pursuant to Article 8 in an aggregate amount greater than the portion of the Purchase Price such Securityholder actually receives and (ii) no Key Member shall have any liability pursuant to Article 8 in an aggregate amount greater than the aggregate portion of the Purchase Price actually received by all Key Members.
(e) Other than with respect to Fraud or intentional misrepresentation of a material fact (but not negligent misrepresentation), Buyer shall have no liability pursuant to Article 8 in excess of the Purchase Price.
(f) The Securityholders shall have no liability pursuant to Section 8.2 with respect to a Loss to the extent su...
Limitations on Indemnification. Any other provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement:
Limitations on Indemnification. Notwithstanding any other provision of this Agreement (other than Section 5), Indemnitee shall not be entitled to:
(a) indemnification for any loss or liability unless all of the following conditions are met: (i) Indemnitee has determined, in good faith, that the course of conduct that caused the loss or liability was in the best interests of the Company; (ii) Indemnitee was acting on behalf of or performing services for the Company; (iii) such loss or liability was not the result of negligence or misconduct, or, if Indemnitee is an independent director, gross negligence or willful misconduct; and (iv) such indemnification is recoverable only out of the Company’s net assets and not from the Company’s stockholders, investors or stakeholders;
(b) indemnification for any loss or liability arising from an alleged violation of federal or state securities laws unless one or more of the following conditions are met: (i) there has been a successful adjudication on the merits of each count involving alleged material securities law violations as to Indemnitee; (ii) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to Indemnitee; or (iii) a court of competent jurisdiction approves a settlement of the claims against Indemnitee and finds that indemnification of the settlement and the related costs should be made, and the court considering the request for indemnification has been advised of the position of the Securities and Exchange Commission and of the published position of any state securities regulatory authority in which securities of the Company were offered or sold as to indemnification for violations of securities laws;
(c) indemnification hereunder if the Proceeding was one by or in the right of the Company and Indemnitee is adjudged to be liable to the Company;
(d) indemnification hereunder if Indemnitee is adjudged to be liable on the basis that personal benefit was improperly received in any Proceeding charging improper personal benefit to Indemnitee, whether or not involving action in the Indemnitee’s Corporate Status; or
(e) indemnification or advance of Expenses hereunder if the Proceeding was brought by Indemnitee, unless: (i) the Proceeding was brought to enforce indemnification under this Agreement, and then only to the extent in accordance with and as authorized by Section 12 of this Agreement, or (ii) the Company’s charter or Bylaws, a resolution of the stockholders entitled to vote generally in the...