Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following: (a) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever. (b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date. (c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date. (d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid. (i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate. (ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate. (iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate. (iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Hosposable Products Inc), Asset Purchase Agreement (Hosposable Products Inc)
Certain Limitations. Notwithstanding anything in this Agreement to the contrary (except for the provisions of Section 9):
(A) The liability Seller shall have no Liability with respect to any Taxes of Sellerthe Companies attributable to (1) any Tax period (or portion of any Tax period, including any Overlap Tax Period) beginning on or after the Effective Date, (2) operations of either or both of the Companies after the Effective Date, or (3) actions taken or elections made by the Buyer or the Companies after the Closing; provided, however, that the Seller shall pay or cause to be paid the Federal Income Taxes shown as payable on the Pre-Closing Period Consolidated Return subject to compliance by the Buyer Parentand the Companies with the terms of this Section 5(k) and Section 5(t).
(B) The Buyer shall have the right to seek recovery with respect to Taxes attributable to the Companies for any Tax period (or portion thereof) prior to the Effective Date only (x) under the R&W Insurance as provided herein, to the extent that such Taxes are Other Taxes, (y) as applicableprovided in Section 7, to the extent that such Taxes are Federal Income Taxes, and (z) only to the extent that the aggregate amount of the Taxes referred to in clauses (x) and (y) for claims such Tax period (or portion thereof) exceeds the aggregate of (i) amounts already -39- 41 paid by the Seller or the Companies on or before the Closing Date in respect of such Taxes for such Tax period (or portion thereof) and (ii) amounts accrued or otherwise disclosed as a liability for such Taxes on the Reviewed Audited Balance Sheet or the schedule of liabilities attached thereto.
(C) Without limiting any requirements or conditions that apply to recovery under the R&W Insurance with respect to Other Taxes, the Buyer shall give prompt written notice to the Seller of the commencement of any audit, administrative appeal, litigation or other contest relating to Federal Income Taxes (a "TAX CONTEST") that results in or may result in a Liability for which the Seller may be liable under this Agreement Agreement, including in respect of Pre-Effective Date Tax Periods and the Pre-Closing Date Tax Period. The Seller shall be limited entitled at any time to conduct, control and settle ("AUDIT CONTROL") any Tax Contest, with respect to Pre-Effective Date Tax Periods or the Pre-Closing Date Tax Period and the Buyer shall cause the relevant Company to execute any powers of attorney necessary in order to allow the Seller to exercise Audit Control and to cooperate fully in the conduct of the Tax Contest. The Party with Audit control over a Tax Contest shall keep the other Party reasonably informed as to the progress of such Tax Contest and shall permit the other Party to participate (without control of) in such Tax Contest with counsel selected by such other Party. The Party with Audit control over a Tax Contest shall not be responsible for any fees of counsel to the following:other Party with respect to a Tax Contest but shall keep the other Party reasonably informed as to the progress of any Tax Contest and shall not enter into any settlement or other disposition of such Tax Contest that may result in any Liability of, or claim of Liability against, the other Party or its Affiliates prior to receiving the express written consent of the other Party.
(aD) If the Closing liability of either Company for Federal Income Taxes is increased for a Pre-Effective Date Tax Period, and either Company or any Affiliate thereof receives or realizes a correlative reduction in a subsequent Tax period or partial Tax period (whether before or after Effective Date) which reduces the Companies' liability for Taxes (or results in a refund or credit of Taxes) for such subsequent period or partial period, the Seller shall not have occurredbe entitled to (y) receive from the Buyer (or the Buyer shall otherwise cause to be paid to the Seller) the amount of any such -40- 42 reduction, recovery refund or credit (together with any interest paid or payable thereon) as and when received or realized by such Company or Affiliate, or (z) offset the amount of any such reduction, refund or credit so received or realized by such Company or Affiliate against any indemnification liability of the Seller existing at or arising after the time that such reduction, refund or credit is so received or realized. The Buyer Indemnitees and/or each of the Companies (as applicable) shall claim and diligently pursue, at their own expense, any such reduction, refund or credit to which it is entitled; provided, however, that, subject to the immediately succeeding sentence, the Buyer and the Companies shall have no obligation to claim or pursue any such reduction, refund or credit if the Buyer receives (and provides to the Seller Indemniteesa copy of) a written opinion of the Buyer's Auditors to the effect that none of the Buyer, the Companies nor any Affiliate of the foregoing is entitled to such reduction, refund or credit (a "NONENTITLEMENT OPINION"). Notwithstanding the immediately preceding sentence, the Buyer and/or each Company (as applicable) shall claim and diligently pursue any such reduction, refund or credit if requested to do so by the Seller, but if the Buyer receives a Nonentitlement Opinion with respect thereto and provides a copy thereof to the Seller, then the Seller shall reimburse the Buyer and the Companies on a current basis for the reasonably documented out-of-pocket costs incurred by them to third parties following the Seller's receipt of such Nonentitlement Opinion in claiming and pursuing such reduction, refund or credit, until such time (if any) as the Seller revokes in writing its request that such reduction, refund or credit be claimed and pursued; provided, however, that if such reduction, refund or credit is received or realized by either of the Companies or any of its Affiliates, then the Buyer and/or the Companies (as the case may be) shall so notify the Seller and shall, within fifteen (15) days following such receipt or realization, repay to the Seller any amounts previously reimbursed by the Seller pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverthis sentence.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Zemex Corp), Stock Purchase Agreement (Zemex Corp)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If After the Closing Closing, Seller shall not be required to indemnify the Buyer Indemnitees (i) for Losses under Section 9.2(a) until the aggregate amount of all such Losses exceeds $1,000,000 (the “Basket”), in which event Seller shall be responsible for the entire amount of such Losses, or (ii) for Losses in the aggregate in excess of $10 million.
(b) Any Buyer Indemnitee shall only be indemnified by the reduction of the principal amount of the FNF Note by the amount of Losses (or in the case of indemnification under Section 8.1, Taxes or payments in respect of Taxes) incurred, from and after the date of incurrence, it being understood that such reduction shall be the sole and exclusive source of recovery and remedy of any Buyer Indemnitee with respect to any claim for indemnification under Section 8.1 or Section 9.2.
(c) Buyers shall not be required to indemnify the Seller Indemnitees (i) for Losses under Section 9.3(a) until the aggregate amount of all such Losses exceeds the Basket, in which event Buyers shall be responsible for the entire amount of such Losses, or (ii) for Losses in the aggregate in excess of $10,000,000.
(d) For purposes of this Article IX, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any knowledge, materiality, Material Adverse Effect or similar qualification contained in or otherwise applicable to such representation or warranty.
(e) The representations, warranties and covenants of Seller and Buyers’ rights to indemnification with respect thereto shall not be affected or deemed waived by reason of any investigation made by or on behalf of either Buyer (including by any of its advisors, consultants or Representatives) or by reason of the fact that either Buyer or any of such advisors, consultants or Representatives knew or should have occurredknown that any such representation or warranty is, recovery was or might be inaccurate or by reason of Buyers’ waiver of any condition set forth in Article VI.
(f) Except as provided in Section 10.9 and Article VIII, the indemnity provided for in this Article IX shall be the sole and exclusive remedy of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (orfor any inaccuracy of any representation or warranty of Seller or Buyers, as applicable, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwiseany other breach hereof. Seller hereby waives and acknowledges and agrees that Seller shall not have and shall not attempt to exercise or assert any right of contribution or indemnity or any other claim whatsoever against the Companies or their Subsidiaries, except for Buyer Losses or any Representative of the foregoing, in connection with any matter with respect to which the Buyer Indemnitees have given indemnity is sought from Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such dateAgreement.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Landamerica Financial Group Inc), Stock Purchase Agreement (Fidelity National Financial, Inc.)
Certain Limitations. The liability of Seller, Buyer the Seller or Buyer ParentBuyer, as applicable, for claims under Sections 10.2 and 10.3, respectively, of this Agreement shall be limited by the following:
(a) If The representations and warranties contained herein, and those covenants contained herein to be performed or complied with prior to the Closing Date (“Pre-Closing Covenants”), shall not have occurredsurvive the Closing for a period of one year (“Survival Period”), recovery except for the representations and warranties of the Buyer Indemnitees parties in Sections 3.3, 3.5, 3.7, 3.14, 3.21, 4.1, 4.2 and 5.7 (collectively, the “Excepted Representations”) which shall survive the Closing for the duration of the applicable statute of limitations. Any other provision of this Agreement notwithstanding, no claim for indemnification under this Section 10 by any party relating to or resulting from (i) the breach of one or more representations other than Excepted Representations, or (ii) Pre-Closing Covenants, by one or more other parties to this Agreement, shall be valid unless Notice of such claim is served upon the indemnifying party within the Survival Period.
(b) The amount of Damages otherwise recoverable under this Section 10 shall be reduced by the amount (if any) by which any Federal, state, local or foreign tax liabilities of the Seller Indemnitee or the Buyer Indemnitee, as applicable, or any of their respective affiliates (including in the case of Buyer, the Company and its Subsidiaries once the Closing has occurred) is decreased by reason of any Damages actually paid to such Seller IndemniteesIndemnitee or Buyer Indemnitee, as applicable, shall be entitled to indemnity under Section 10.2 or 10.3 of this Agreement.
(c) The amount of Damages otherwise recoverable by a Seller Indemnitee or Buyer Indemnitee under Section 10.2 or 10.3 hereof with respect to any matter which is covered by insurance, shall be reduced by the amount of insurance cash proceeds actually paid to such indemnitee (net of any costs and attorneys’ fees incurred in connection with the collection thereof), and the Seller Indemnitee or the Buyer Indemnitee, as the case may be, pursuant hereby agree to make a claim under any applicable insurance policy maintained by it where such indemnitee determines in good faith that insurance coverage is available.
(d) Any payment required under this Section 8.1 10 paid to any Buyer Indemnitee or Section 8.2any Seller Indemnitee, as the case may be, shall be limited to actual out-of-pocket expenses treated by Buyer and shall in no event include any special, indirect, incidental or consequential damages whatsoeverthe Seller as a further adjustment of the Purchase Price for the Shares.
(bi) Two years after Except for Damages (x) resulting from the Closing Date inaccuracy of the representations and warranties contained in Sections 3.3, 4.1 and 4.2, (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses y) with respect to which the Buyer Indemnitees have given Seller written notice prior is entitled to such date.
indemnification under Section 5.7 or under Sections 10.2(I)(d), 10.2(I)(f), 10.2(I)(g), 10.2(I)(h) or 10.2(I)(i), and (cz) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses Indebtedness with respect to which Buyer is entitled to indemnification under Section 10.2(I)(c), other than accounts payable for goods or services incurred in the ordinary course of business which were not included in the calculation of Net Working Capital pursuant to Section 2.4 above, no Damages shall be recoverable by a Seller Indemnitee or Buyer Indemnitee pursuant to the provisions of this Section 10, unless the aggregate amount of the Seller Indemnitees have given Indemnitees’ or the Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller LossesIndemnitees’, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect Damages equals at least an amount equal to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
three/fourths percent (i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e0.75%) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 Purchase Price in the aggregate (the “Basket”) and then only to the extent such Buyer Losses Damages exceed Cdn$50,000 an amount equal to three/fourths percent (0.75%) of the Purchase Price in the aggregate. For the avoidance of doubt, the Basket limitations shall not apply to adjustments to the Net Working Capital contemplated by this Agreement.
(ii) Anything to the contrary herein notwithstanding, Except for (x) Damages resulting from a breach of the representations and warranties contained in clauses Sections 3.3, 4.1 and 4.2, (fy) through with respect to which Buyer is entitled to indemnification under Section 5.7 or under Section 10.2(I)(d), and (hz) Indebtedness with respect to which Buyer is entitled to indemnification under Section 10.2(I)(c), other than accounts payable for goods or services incurred in the ordinary course of business which were not included in the calculation of Net Working Capital pursuant to Section 2.4 above, which Damages are limited to an amount equal to thirty-five percent (35%) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to Purchase Price, the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses Damages recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) 10 by all the Buyer Indemnitees in the aggregate shall be limited in the aggregate to an amount equal to fifteen percent (15%) of the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofPrice.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Entravision Communications Corp), Stock Purchase Agreement (Lamar Media Corp/De)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If After the Closing Closing, Seller shall not be required to indemnify the Buyer Indemnitees (i) for Losses under Section 9.2(a) until the aggregate amount of all such Losses exceeds $1,000,000 (the “Basket”), in which event Seller shall be responsible for the entire amount of such Losses, or (ii) for Losses in the aggregate in excess of the Escrow Funds.
(b) Any Buyer Indemnitee shall only be indemnified to the extent of funds available in the Escrow Funds, it being understood that such Escrow Funds shall be the sole and exclusive source of recovery and remedy of any Buyer Indemnitee with respect to any claim for indemnification under Section 9.2.
(c) Buyers shall not be required to indemnify the Seller Indemnitees (i) for Losses under Section 9.3(a) until the aggregate amount of all such Losses exceeds the Basket, in which event Buyers shall be responsible for the entire amount of such Losses, or (ii) for Losses in the aggregate in excess of $10,000,000.
(d) For purposes of this Article IX, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any knowledge, materiality, Material Adverse Effect or similar qualification contained in or otherwise applicable to such representation or warranty.
(e) The representations, warranties and covenants of Seller and Buyers’ rights to indemnification with respect thereto shall not be affected or deemed waived by reason of any investigation made by or on behalf of either Buyer (including by any of its advisors, consultants or Representatives) or by reason of the fact that either Buyer or any of such advisors, consultants or Representatives knew or should have occurredknown that any such representation or warranty is, recovery was or might be inaccurate or by reason of Buyers’ waiver of any condition set forth in Article VI.
(f) Except as provided in Section 10.9 and Article VIII, the indemnity provided for in this Article IX shall be the sole and exclusive remedy of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (orfor any inaccuracy of any representation or warranty of Seller or Buyers, as applicable, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwiseany other breach hereof. Seller hereby waives and acknowledges and agrees that Seller shall not have and shall not attempt to exercise or assert any right of contribution or indemnity or any other claim whatsoever against the Companies or their Subsidiaries, except for Buyer Losses or any Representative of the foregoing, in connection with any matter with respect to which the Buyer Indemnitees have given indemnity is sought from Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such dateAgreement.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Landamerica Financial Group Inc), Stock Purchase Agreement (Fidelity National Financial, Inc.)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If the Closing The Seller Parties shall not have occurredbe required to indemnify the Buyer Indemnified Parties for those portions of any Damages that resulted from any breach of Buyer’s obligations under this Agreement. No Buyer Indemnified Party shall be indemnified more than once for the same Damages.
(b) The Seller Parties shall not be liable to the Buyer Indemnified Parties for indemnification under (i) Section 11.01(a) for any single claim or series of claims arising out of substantially the same or the same type or nature of events, recovery circumstances or underlying facts unless the amount of such claim or series of claims exceeds Ten Thousand Dollars ($10,000).
(c) Any amounts owed by the Seller Parties for indemnification under Section 11.01 shall be satisfied as follows: (i) first, as a payment by the Escrow Agent from the Escrow Fund; and (ii) after such Escrow Fund has been exhausted, second, directly against the Seller Parties, subject to, in each case of clauses (i) and (ii), the other limitations in this Article XI.
(d) In no event shall any Buyer Indemnified Party be entitled to recover or make a claim for any amounts in respect of, and in no event shall Damages for purposes of this Agreement (including amounts indemnifiable under Section 11.01) be deemed to include (i) any damages that are not reasonably foreseeable as of the date of this Agreement or (ii) liquidated damages, lost profits, lost revenue or punitive, special or exemplary damages and, in particular, damages calculated by “multiple of profits” or “multiple of cash flow” or similar valuation methodology, except to the extent awarded by a court of competent jurisdiction to a Third Person in connection with a Third Person Claim.
(e) Buyer Indemnitees or shall (and shall cause its Affiliates, including the Acquired Companies to) use commercially reasonable efforts to obtain insurance proceeds, Tax benefits and other third party recoveries with respect to any claim for indemnification under this Article XI. Any indemnity payment made by the Seller Indemnitees, as the case may be, Parties to any Buyer Indemnified Party pursuant to Section 8.1 or Section 8.2, as the case may be, this Article XI shall be limited reduced by an amount equal to actual any insurance proceeds, Tax benefits and other third party recoveries actually received by such indemnified party in respect of such claim minus the sum of reasonable out-of-pocket expenses (including reasonable and shall in no event include any special, indirect, incidental or consequential damages whatsoeverdocumented attorneys’ fees and expenses) relating to the recovery of such proceeds.
(bf) Two years after the Closing Date (orEach Party hereby agrees that it shall, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insuranceit shall, to the extent proceeds required by applicable Law, cause its Affiliates to, mitigate any Damages to be indemnified under this Article XI upon and after becoming aware of such insurance are paidany event or condition that could reasonably be expected to give rise to any Damages that may be indemnifiable hereunder.
(ig) Anything No information or knowledge acquired prior to the contrary herein notwithstandingEffective Date, or investigations conducted, by Buyer or its representatives of the representations and warranties contained Acquired Companies, their respective Businesses, assets, Liabilities or otherwise, prior to the Effective Date, shall in clauses (a) through (e) of Section 3.15 and clauses (f) through any way limit, or constitute a waiver of, or a defense to, any claim for indemnification or other claim by Buyer or any Buyer Indemnified Party under this Agreement.
(h) of Section 3.15 (but only Notwithstanding anything in this Agreement to the extent there was a violation contrary, the sole recourse of applicable Environmental Laws at any Buyer Indemnified Party with respect to an indemnification claim arising out of or relating to the time transactions contemplated by the event referred Real Estate Purchase Agreement (and any real or personal property purchased pursuant to in such clauses (f) through (h) occurredagreement) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 indemnification provisions set forth in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregateReal Estate Purchase Agreement.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Benson Hill, Inc.), Stock Purchase Agreement (Benson Hill, Inc.)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If For purposes of this Article IX, any inaccuracy in or breach of any representation or warranty (other than the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, representations and warranties set forth in Sections 4.6 and 4.9(c) shall be limited determined without regard to actual out-of-pocket expenses and shall in no event include any specialmateriality, indirect, incidental Material Adverse Effect or consequential damages whatsoeversimilar qualification.
(b) Two years after the Closing Date (orThe representations, in the case warranties and covenants of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Sellers and Buyer Losses Indemnitees’ rights to indemnification with respect to which the thereto will not be affected or deemed waived by reason of any investigation made or knowledge obtained by or on behalf of such Buyer Indemnitees have given Seller written notice prior to such dateIndemnitee (including by any of its advisers, consultants or representatives).
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, Notwithstanding any provision of this Agreement or otherwiseany Ancillary Agreement to the contrary, except for Seller Losses nothing herein or therein will limit in any way any party’s remedies in respect of fraud, intentional misrepresentation or omission or intentional misconduct by the other party in connection with respect to which the Seller Indemnitees have given Buyer transactions contemplated hereby or Buyer Parent written notice prior to such datethereby.
(d) No Buyer Losses party to this Agreement (or Seller Lossesany of its Affiliates) will, as in any event, be liable or otherwise responsible to any other party (or any of its Affiliates) for any punitive damages, other than punitive damages paid or payable to a third party.
(e) Each party hereto acknowledges and agrees that (i) prior to the Closing, other than in the case may of intentional breach or fraud by Sellers or their Affiliates, the sole and exclusive remedy of Buyer for any breach or inaccuracy of any representation or warranty contained in this Agreement or any certificate or instrument delivered hereunder shall be, shall be asserted in the event that each of the conditions set forth in Article VIII has not been satisfied or waived, refusal to close the transactions contemplated by a Buyer Indemnitee or a Seller Indemniteethis Agreement; and (ii) following the Closing, as applicableother than Losses arising from fraud, (A) the indemnification provisions of this Article IX and, with respect to Taxes for which an indemnity is provided under Article VII, Article VII shall be (1) the sole and exclusive remedies of the parties hereto for any matter that is covered by insurance, breach of the representations or warranties contained in this Agreement and (2) the sole and exclusive monetary remedies of the parties hereto for any breach of any covenant or agreement contained in this Agreement and (B) notwithstanding anything to the extent contrary contained herein, no breach of any representation, warranty, covenant or agreement contained herein shall give rise to any right on the part of any party hereto to rescind this Agreement or any of the transactions contemplated by this Agreement.
(f) If any portion of Losses to be reimbursed by the Indemnifying Party may be covered, in whole or in part, by third party insurance coverage, the Indemnified Party shall promptly give notice thereof to the Indemnifying Party (a “Notice of Insurance”). If the Indemnifying Party so requests within sixty (60) days after receipt of a Notice of Insurance, the Indemnified Party shall use its commercially reasonable efforts (which shall not include the obligation to institute or defend any action) to collect the maximum amount of insurance proceeds thereunder, in which event all such proceeds actually received (net of deductibles, co-payments or other costs incurred the Indemnified Party (including increased premiums on such related Insurance Policies) in seeking such collection) shall be considered “Eligible Insurance Proceeds.”
(g) Any amount payable by an Indemnifying Party pursuant to this Article IX shall be reduced by any Eligible Insurance Proceeds. In any case where an Indemnified Party recovers from a third Person any Eligible Insurance Proceeds or any other amount in respect of any Loss for which an Indemnifying Party has actually reimbursed it pursuant to this Article IX, such Indemnified Party shall promptly pay over to the Indemnifying Party the amount of such insurance are paidEligible Insurance Proceeds, but not in excess of the sum of any amount previously paid by the Indemnifying Party to or on behalf of the Indemnified Party in respect of such claim.
(h) Any indemnity payment made by an Indemnifying Party under this Agreement shall be adjusted to account for any Taxes imposed upon the receipt of such payment and shall be reduced by the amount of any Tax Benefit realized by the Indemnified Party or any Affiliate thereof arising out of the Loss for which the indemnification payment is being made. For purposes of determining the amount of any Tax Benefit, the recipient of the Tax Benefit shall be deemed to pay Tax at the highest United States federal income tax corporate marginal rate in effect in the year such indemnifiable loss is incurred and shall be deemed to realize or utilize any Tax Benefit in the first taxable year that such Tax Benefit may be realized or utilized under applicable Law after taking into account all other Tax attributes of such indemnified party and the projected utilization of such Tax attributes as computed by the recipient of such Tax Benefit. If a Tax Benefit resulting from an indemnifiable loss is available in multiple Tax years, the amount of such Tax Benefit for purposes of this Section 9.4(h) shall be the net present value of all of such available Tax Benefits, calculated by using a discount rate equal to the long-term applicable federal rate for the month in which such indemnifiable loss is incurred.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) The parties hereto shall be deemed to be breached only to the extent that treat any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of indemnification payment made under this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, Agreement as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any an adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofFinal Purchase Price.
Appears in 2 contracts
Sources: Purchase Agreement (Tower Group, Inc.), Purchase Agreement (OneBeacon Insurance Group, Ltd.)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under (i) Notwithstanding anything to the contrary contained in this Agreement shall be limited by the followingAgreement:
(a1) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.shall the Company be required to pay the Company Termination Fee on more than one occasion;
(b2) Two years after (x) in no event shall Parent be required to pay the Closing Date Funding Failure Termination Fee on more than one occasion, and (or, y) in no event shall Parent be required to pay the case of a claim for breach of Section 3.15, three years after Funding Failure Termination Fee if the Closing Date, Regulatory Failure Termination Fee has already been paid; and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c3) Two years after (x) in no event shall Parent be required to pay the Closing DateRegulatory Failure Termination Fee on more than one occasion, Buyer and Buyer (y) in no event shall Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect be required to which pay the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as Regulatory Failure Termination Fee if the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are Funding Failure Termination Fee has already been paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything Notwithstanding anything to the contrary herein notwithstandingcontained in this Agreement, but subject to Section 9.9, Parent’s right to receive payment from the Company of the Company Termination Fee pursuant to Section 8.3(a) shall constitute the sole and exclusive remedy of Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees (collectively, the representations “Company Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and warranties contained upon payment of such amount, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated thereby (whether at law, in clauses equity, in contract, in tort or otherwise) (f) through (h) of Section 3.15 (but only except that, to the extent not subject to clause (i) any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by the Company or such Intentional Breach by the Company shall cause the Merger Closing not to occur as provided under Section 8.3(e)) 8.2, Parent shall be deemed entitled to be breached only the payment of the Company Termination Fee (to the extent that owed pursuant to Section 8.3(a)) and to any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only Damages, to the extent proven, resulting from or arising out of such Buyer Losses exceed Cdn$30,000 in Intentional Breach (as reduced by any Company Termination Fee previously paid by the aggregateCompany).
(iii) No claim Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.9, the Company’s right to receive payment from Parent of the Funding Failure Termination Fee or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, Regulatory Failure Termination Fee pursuant to Section 8.3(a) shall constitute the provisions sole and exclusive remedy of the Company and its stockholders against Parent and its Subsidiaries (including Merger Sub) and any of their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates, assignees or Financing Sources (collectively, the “Parent Related Parties”) for all Damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise (whether at law, in equity, in contract, in tort or otherwise), and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising out of this Article 8Agreement or the transactions contemplated thereby (whether at law, unless the amount of Buyer Losses in equity, in contract, in tort or Seller Lossesotherwise) (except that, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent any termination of this Agreement resulted from, directly or indirectly, an Intentional Breach of this Agreement by Parent or Merger Sub or such Buyer Losses Intentional Breach by Parent or Seller LossesMerger Sub shall cause the Merger Closing not to occur as provided under Section 8.2, as the case may be, exceed Cdn$350,000 in Company shall be entitled to both the aggregate.
payment of the Funding Failure Termination Fee or Regulatory Failure Termination Fee (iv) The aggregate amount of Buyer Losses recoverable to the extent owed pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e8.3(a)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not to any trades of Buyer Parent Common Stock occur on any such day) prior Damages, to the date hereofextent proven, resulting from or arising out of such Intentional Breach (as reduced by any Funding Failure Termination Fee or Regulatory Failure Termination Fee paid by Parent).
Appears in 2 contracts
Sources: Merger Agreement (Scientific Games Corp), Merger Agreement (WMS Industries Inc /De/)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If the Closing The Indemnifying Party shall not have occurred, recovery of be liable to the Buyer Indemnitees Indemnified Party for indemnification under Section 8.01(a) or the Seller IndemniteesSection 8.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 8.01(a) or Section 8.02(a), as the case may be, exceeds $100,000 (the “Basket”), in which event the Indemnifying Party shall be liable to the Indemnified Party for Losses relating back to the first dollar.
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable as an Indemnifying Party pursuant to Section 8.1 8.01(a) or Section 8.28.02(a), as the case may be, shall be limited not exceed $750,000 (the “Cap”). Notwithstanding the foregoing, neither the Basket nor the Cap shall apply to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental Losses as a result of the intentional misconduct or consequential damages whatsoever.
(b) Two years after fraud of the Closing Date (or, in the case any Party or a breach of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing DateFundamental Representation (as defined below), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the Closing Datebreach or alleged breach of this Agreement, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwisediminution of value or any damages based on any type of multiple, except for Seller Losses with respect to which as a result of the Seller Indemnitees have given Buyer Indemnifying Party’s intentional misconduct or Buyer Parent written notice prior to such datefraud.
(d) No Seller shall not be liable under this Article VIII for any Losses based upon or arising out of any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement if Buyer Losses had knowledge of such inaccuracy or Seller Lossesbreach prior to the Closing.
(e) Payments by an Indemnifying Party pursuant to Section 8.01 or Section 8.02, as the case may be, in respect of any Loss shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, limited to the extent amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Indemnified Party (or the Company) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance are paidpolicies or indemnity, contribution or other similar agreements for any Losses.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of Section 3.15 (but any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent there was a violation of applicable Environmental Laws at necessary to remedy the time the event referred breach that gives rise to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregateLoss.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 2 contracts
Sources: Securities Purchase Agreement (TILT Holdings Inc.), Securities Purchase Agreement
Certain Limitations. The liability provisions of SellerSection 3.6(a), Buyer or Buyer ParentSection 3.6(b), as applicableSection 3.6(c), for claims under this Agreement and Section 3.6(d) shall be limited by subject to the following:
(a) If Each Lender that desires compensation or indemnification under Section 3.6(a), Section 3.6(b), Section 3.6(c), or Section 3.6(d) shall notify the Borrowers through the Agent of any event occurring after the Closing shall not have occurredDate entitling such Lender to compensation or indemnification under any of such Sections as promptly as practicable, recovery but in any event within ninety (90) days after the occurrence of the Buyer Indemnitees event giving rise thereto; provided that (i) if any such Lender fails to give such notice within ninety (90) days after the occurrence of such an event, such Lender shall only be entitled to compensation or the Seller Indemniteesindemnification in respect of such event accruing under Section 3.6(a), as the case may beSection 3.6(b), pursuant to Section 8.1 3.6(c), or Section 8.2, as 3.6(d) with respect to the case may be, shall be limited period from and after the date ninety (90) days prior to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverthe date that such Lender does give notice.
(b) Two years after Any notice given by a Lender pursuant to clause (a) preceding shall certify (i) that one of the Closing Date events described in Section 3.6(a), Section 3.6(b), Section 3.6(c), or Section 3.6(d) has occurred, describing in reasonable detail the nature of such event, (orii) as to the increased cost, reduced amount receivable, or loss or expense resulting from such event, and (iii) as to the additional amount demanded by such Lender, attaching a reasonably detailed explanation of the calculation thereof. Such a certificate as to any compensation or indemnification payable pursuant to Section 3.6(a), Section 3.6(b), Section 3.6(c), or Section 3.6(d), submitted by such Lender through the Agent to the Borrowers, shall be conclusive and binding on the parties hereto in the case absence of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such datemanifest error.
(c) Two years If any Lender requests compensation or indemnification from the Borrowers under Section 3.6(a), Section 3.6(b), Section 3.6(c), or Section 3.6(d), the Borrowers may, at their option, within fifteen (15) days after receipt by the Closing DateBorrowers of written demand from the affected Lender for payment of such compensation or indemnification, Buyer notify the Agent and Buyer Parent such affected Lender of their intention to replace the affected Lender. So long as no Event of Default shall have no further occurred and be continuing, the Borrowers may obtain, at the Borrowers' expense, a replacement Lender (which must be an Eligible Assignee reasonably acceptable to the Agent) for the affected Lender. If the Borrowers obtain a replacement Lender within ninety (90) days following notice of their intention to do so, the affected Lender must sell and assign its loans and obligations and any Commitments to such replacement Lender pursuant to Section 10.3, for an amount equal to the principal balance of all Revolving Loans held by the affected Lender and all accrued interest and Fees with respect thereto through the date of such sale, provided that the Borrowers shall have paid to such affected Lender the compensation or indemnification that it is entitled to receive under Section 3.6(a), Section 3.6(b), Section 3.6(c), or Section 3.6(d), through the date of such sale and assignment. Notwithstanding the foregoing, the Borrowers shall not have the right to obtain a replacement Lender if the affected Lender rescinds its demand for such compensation or indemnification within fifteen (15) days following its receipt of the Borrowers' notice of intention to replace such affected Lender. Additionally, if the Borrowers give a notice to the Agent and an affected Lender of the Borrowers' intention to replace such affected Lender and the Borrowers do not so replace such affected Lender within ninety (90) days thereafter, the Borrowers' rights under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred3.9(c) shall be deemed to be breached only to terminate and the extent that any Borrowers shall promptly pay all compensation or indemnification demanded by such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, affected Lender pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d3.6(a), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii3.6(b), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e3.6(c)) , and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofSection 3.6(d).
Appears in 2 contracts
Sources: Credit Agreement (Friedmans Inc), Credit Agreement (Friedmans Inc)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, indemnification provided for claims under this Agreement in Section 9.02 and Section 9.03 shall be limited by subject to the followingfollowing limitations:
(a) If the Closing The Indemnifying Party shall not have occurred, recovery of be liable to the Buyer Indemnitees Indemnified Party for indemnification under Section 9.02(a)(ii) or the Seller IndemniteesSection 9.03(b), as the case may be, pursuant to until the aggregate amount of all Losses in respect of indemnification under Section 8.1 9.02(a)(ii) or Section 8.29.03(b) exceeds one-percent (1%) of the Purchase Price (the “Basket Amount”), as in which event the case may be, Indemnifying Party shall only be limited required to actual out-of-pocket expenses and shall pay or be liable for Losses in no event include any special, indirect, incidental or consequential damages whatsoeverexcess of the Basket Amount.
(b) Two years after No Indemnified Party shall be entitled to recover from the Closing Date (orIndemnifying Party any Losses pursuant to either Section 9.02(a)(ii) or Section 9.03(b), in each case, for an aggregate amount in excess of twenty-five (25%) of the case of a claim for breach of Section 3.15, three years after Purchase Price (the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date“Cap”), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after The aggregate amount of all Losses for which either (i) Seller, pursuant to Section 9.02(a), or (ii) Buyer, pursuant to Section 9.03, shall be liable shall, in each case, not exceed the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.Purchase Price;
(d) No Buyer Notwithstanding the foregoing, the limitations set forth in Sections 9.04(a)–(c) shall not apply to Losses or Seller Lossesbased upon, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicablearising out of, with respect to or by reason of Fraud; and
(e) Losses for which any matter Indemnified Party would otherwise be entitled to indemnification under this Article IX shall be reduced by the amount of insurance proceeds actually received by such Indemnified Party in respect of any Losses incurred by such Indemnified Party (net of any fees, costs and expenses of collection or increased premiums, if applicable). In the event that is covered any such insurance proceeds are actually received by insurancean Indemnified Party subsequent to receipt by such Indemnified Party of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnity payments or other third-party recoveries relate, an appropriate refund shall be made promptly by the relevant Indemnified Parties to the Indemnifying Party in an amount not to exceed the lesser of (i) the amount by which (A) the amount received by the Indemnified Party, net of any fees, costs and expenses or increased premiums incurred by such Indemnified Party in collecting such amount, plus the payment received from the Indemnifying Party, exceeds (B) the total Losses suffered or incurred by the Indemnified Party with respect to the applicable claim for indemnification; (ii) the amount received by the Indemnified Party, net of any fees, costs and expenses or increased premiums incurred by such Indemnified Party in collecting such amount; and (iii) the amount paid by the Indemnifying Party pursuant to this Article IX. Notwithstanding the foregoing, nothing contained herein shall obligate an Indemnified Party to seek recovery from any then-existing insurance policies in respect of any Losses hereunder.
(f) No Indemnified Party shall be entitled to indemnification for any punitive, incidental, consequential, special, or indirect damages, or exemplary Losses except, in each case, to the extent proceeds of such insurance Losses are paidfinally awarded in connection with a Third-Party Claim against the Indemnified Party.
(ig) Anything Each Indemnified Party shall use its commercially reasonable efforts to mitigate any Losses for which it is entitled to indemnification pursuant to this Article IX including incurring costs only to the contrary herein notwithstanding, minimum extent necessary to remedy the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through breach that gives rise to such Loss.
(h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(iiARTICLE IX (including for purposes of determining the existence of any inaccuracy in, or breach of, any representation or warranty and for calculating the amount of any Loss with respect thereto), "Purchase Price Indemnification Amount" any inaccuracy in or breach of any representation or warranty shall mean the sum of (x) Cdn$13,062,741 (plus be determined without regard to any materiality, Material Adverse Effect or minus any adjustment other similar qualification contained in or otherwise applicable to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether such representation or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofwarranty.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Body & Mind Inc.), Membership Interest Purchase Agreement (Body & Mind Inc.)
Certain Limitations. The liability (a) Except with respect to Indemnifiable Losses resulting from Excluded Taxes or from any inaccuracy in or breach of a representation or warranty set forth in Section 3.17, no party shall be obligated to indemnify and hold harmless its respective Indemnitees under Section 10.02(a)(i) (in the case of Seller, Buyer and other than with respect to an inaccuracy in or Buyer Parentbreach of any Seller Specified Representation) or Section 10.02(b)(i) (in the case of Purchaser, as applicableand other than with respect to an inaccuracy in or breach of any Purchaser Specified Representation) (i) with respect to any claim or series of claims arising out of substantially similar facts and circumstances, unless such claim or series of claims involves Indemnifiable Losses in excess of $100,000 (the “Threshold Amount”) (nor shall any claim that does not exceed the Threshold Amount be applied to or considered for claims purposes of calculating the amount of Indemnifiable Losses for which the Indemnitor is responsible under this Agreement shall be limited by clause (ii) below) and (ii) unless and until the following:
(a) If the Closing shall not have occurred, recovery aggregate amount of all Indemnifiable Losses of the Buyer Indemnitees under Section 10.02(a)(i) or the Seller Indemniteessuch Section 10.02(b)(i), as the case may be, pursuant exceeds $14,500,000 for all Indemnifiable Losses (the “Deductible”), at which point such Indemnitor shall be liable to Section 8.1 its respective Indemnitees for the value of the Indemnitee’s claims under Section 10.02(a)(i) (other than with respect to a breach of any Seller Specified Representation) or Section 8.210.02(b)(i) (other than with respect to a breach of any Purchaser Specified Representation), as the case may be, that is in excess of the Deductible, subject to the limitations set forth in this Article X; provided, however, that any Indemnifiable Losses of the Purchaser Indemnified Persons resulting from or arising out of any inaccuracy in or breach of any representation or warranty set forth in Section 3.03 shall not be subject to the Deductible, and the Threshold Amount for such Indemnifiable Losses shall be limited $50,000; provided further that, for the avoidance of doubt, any such Indemnifiable Losses shall be subject to actual out-of-pocket expenses the Threshold Amount and shall the maximum aggregate liability set forth in no event include the following sentence prior to the proviso set forth therein. The maximum aggregate liability of Seller, on the one hand, and Purchaser on the other hand, to their respective Indemnitees for any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (orand all Indemnifiable Losses under Section 10.02(a)(i), in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(da breach of any Seller Specified Representation), or Sections 10.02(b)(i), in the case of Purchaser (eother than with respect to a breach of any Purchaser Specified Representation), shall be $174,000,000; provided, that the maximum aggregate liability of Seller to all Purchaser Indemnified Persons for any or all Indemnifiable Losses under this Agreement shall not exceed the Purchase Price. The limitations in this Section 10.03(a) shall not apply to claims made under Section 10.02(a)(iii), Section 10.02(b)(iii) or Section 10.02(b)(iv).
(b) Each Indemnitee shall use commercially reasonable efforts to mitigate all Indemnifiable Losses for which indemnification may be sought hereunder; provided that the costs and expenses of such mitigation shall constitute Indemnifiable Losses hereunder.
(f)c) by all Buyer Indemnitees Notwithstanding anything to the contrary herein, any Indemnifiable Losses resulting from or arising out of any breach of any representation or warranty of Seller made in this Agreement in respect of Taxes, including under Section 3.17, shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment Taxes attributable to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofPre-Closing Periods.
Appears in 2 contracts
Sources: Master Transaction Agreement, Master Transaction Agreement (Aetna Inc /Pa/)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under Notwithstanding anything contained in this Agreement shall be limited by Article VIII to the followingcontrary:
(a) If the Closing Indemnitor shall not have occurred, recovery of the Buyer Indemnitees any liability under Section 8.2(a) or the Seller Indemnitees, Section 8.3(a) above (as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in unless the aggregate of all Losses and Litigation Expenses relating thereto for which Indemnitor would, but for this proviso, be liable exceeds $1,200,000 (the “Basket”) on a cumulative basis and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in excess; and the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, liability of an Indemnitor pursuant to the provisions of this Article 8, unless the amount of Buyer Losses Section 8.2(a) or Seller Losses, Section 8.3(a) above (as the case may be, equals at least Cdn$350,000 ) shall in the aggregate and then only no event exceed an amount equal to the extent such Buyer Losses or Seller Losses, amount finally set forth on Schedule A to the Limited Liability Company Agreement as the case may be, exceed Cdn$350,000 in “Value of the aggregate.
(iv) The aggregate amount Initial Capital Contribution” of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount▇▇▇▇▇▇. For purposes of calculating the Basket, Losses and Litigation Expenses shall be determined without regard to any qualification of any representation or warranty in any respect by knowledge, materiality or material adverse effect.
(b) The amount of indemnifiable Losses and Litigation Expenses incurred by Indemnitee under this Section 8.3(e)(iiArticle VIII, shall be (a) reduced by any insurance proceeds actually received by the Indemnitee with respect to the Loss or Litigation Expense for which indemnification may be sought, net of retrospective premium adjustments and similar charges, and (b) reduced by any amounts actually recovered from any third parties, by way of indemnification or otherwise, with respect to the Loss or Litigation Expense for which indemnification may be sought, in each case net of expenses incurred by the Indemnitor in collecting such proceeds or amounts. In the event an insurance or other claim by an Indemnitee against a third party is pending at the time indemnification is sought from an Indemnitor, no reduction shall be made to the amount payable by the Indemnitor but, as and when any insurance or third-party proceeds are received by the Indemnitee, the indemnifiable Losses or Litigation Expenses shall be adjusted to reflect the receipt of such proceeds and the Indemnitee shall promptly refund to the Indemnitor any excess of the indemnification payment theretofore made over the adjusted amount payable.
(c) The liability of an Indemnitor under this Article VIII shall be reduced by the net amount of any tax benefits actually realized by the Indemnitee or its shareholders to the extent the claim for which indemnification is sought gives rise to a deductible loss or expense. In the event tax benefits have not been actually realized (through a refund of or deduction or credit against taxes payable), "Purchase Price Indemnification Amount" or the net tax benefit cannot finally be determined, at the time indemnification is sought from an Indemnitor, no reduction shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment be made to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied amount payable by the average Indemnitor but, as and when the tax benefits are actually realized and the net amount thereof finally determined, the indemnifiable Litigation Expenses and Losses shall be adjusted to reflect the net tax benefits realized and the Indemnitee shall promptly refund to the Indemnitor any excess of the closing prices reported on indemnification payment theretofore made over the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofadjusted amount payable.
Appears in 2 contracts
Sources: Contribution Agreement (Constellation Brands, Inc.), Joint Venture Agreement (Constellation Brands, Inc.)
Certain Limitations. The liability of Seller, Buyer any of Seller Parties or Buyer ParentBuyer, as applicable, for indemnification claims under this Agreement shall be limited by the following:
(a) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant : The obligations to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses indemnify and shall hold harmless a Party in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case respect of a claim for breach of representation, warranty or covenant shall terminate on the applicable survival date as set forth in Section 3.1510.1, three years after unless, with respect to a representation, warranty or covenant that terminates following the Closing Date, and, in the case of an Indemnitee has made a proper claim for breach of indemnification pursuant to this Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice 10 prior to such termination date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under . If an Indemnitee has made a proper claim for indemnification pursuant to this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice Section 10 prior to such termination date.
(d) , then such claim will not be extinguished by the passage of the deadlines set forth in Section 10.1. No Buyer Losses or Seller Losses, as the case may be, shall Indemnitee will be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect entitled to any matter that is covered by insurance, indemnification pursuant to the extent proceeds of such insurance are paid.
(iSection 10.2(i) Anything to the contrary herein notwithstanding, the representations unless and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in until the aggregate amount of all losses subject to such indemnification would exceed, on a cumulative basis, an amount equal to Ten Thousand Dollars ($10,000) (“Basket”), and then only to the extent such Buyer losses exceed the Basket. In no event shall the aggregate liability of Seller Parties (i) pursuant to Section 10.2(i) exceed an aggregate amount equal to the Purchase Price. For purposes of determining any breach or inaccuracy of any representation or warranty and the amount of any Losses exceed Cdn$50,000 related thereto, no effect shall be given to any “Material Adverse Effect” or other materiality qualification in the aggregate.
(ii) Anything relevant representation or warranty. The representations, warranties and covenants of Seller Parties, and the rights and remedies that may be exercised by Buyer Indemnitees, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or knowledge of, any of the Buyer Indemnitees or any of their representatives. Notwithstanding anything to the contrary herein notwithstandingin this Agreement, nothing in this Section 10 shall limit the liability of any Party for fraud or intentional misrepresentation related to the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregateAgreement.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (RiceBran Technologies)
Certain Limitations. (a) The liability following limitations shall apply to the rights of Seller, Buyer or Buyer Parentindemnification set forth in this Article 7, as applicable, for claims under this Agreement shall be limited by : (i) the following:
(a) If the Closing Buyer Parties shall not have occurredbe entitled to recover under Article 7, recovery including Section 7.2 from any Interestholder more than the aggregate of (x) the Value (as defined below) of the Buyer Indemnitees aggregate Stock Consideration; and (y) any cash payments received (or the Seller Indemnitees, as the case may be, deemed received hereunder) by such Interestholder pursuant to Section 8.1 1.4.1, including any Additional Payments received (or deemed received hereunder) through the date of recovery (the "Total Cash Payments") (with the amount of the Total Cash Payments received or deemed received by each Interestholder to be deemed for purposes of this Section 8.2, 7.6 to be the amount determined by multiplying the percentage next to such Interestholder's name in Schedule 1.4.1(b) by the Total Cash Payments); (ii) the liability of the Indemnifying Party shall be net of any insurance benefits received by the Indemnified Party and any tax benefits received by the Indemnified Party in respect of the loss giving rise to the claim for indemnification; (iii) the amount of Damages claimed as the case may be, a subject of indemnification shall be limited to the actual out-of-pocket expenses dollar amount of such Damages and shall in no event not include any special, indirect, incidental multiple of earnings or consequential damages whatsoever.
Damages suffered by the Indemnified Party (except for attorneys fees and costs); (iv) if the same set of facts or circumstances give rise to more than one breach, the Damages shall be limited as if there were only one breach (e.g. there will not be multiple recoveries for Damages based on one set of facts); and (v) the liability of each Transferor for any Damages shall be limited to (x) the percentage set forth by such Transferor's name on Schedule 2.2 multiplied by (y) the amount of such Damages, except no such limitation shall apply with respect to Damages that arise out of or are based upon: (a) a material breach by such Transferor or any representation or warranty made by it or him pursuant to this Agreement; (b) Two years after the Closing Date (ormaterial non-performance, in the case of a claim for breach of Section 3.15partial or total, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, or any covenant made by such Transferor pursuant to this Agreement or otherwise, except for Buyer Losses any other agreement or instrument delivered in connection with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amounttransactions contemplated hereby. For purposes of this Section 8.3(e)(ii7.6, the Value will be $0.50 per share of Common Stock.
(b) Notwithstanding anything contained herein (with the exception of recovery from the Pero Parties, which is addressed in Section 7.6 (c) below), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment and subject to the limitations set forth in Section 7.6(a), the Buyer shall have the right, upon notice to the applicable Indemnifying Party, to receive recovery for Damages hereunder from the following asset categories in the order stated below until each asset is completely exhausted with the Buyer entitled to continue to each subsequent asset category until such Damages are paid in full:
(i) Cash, if any, received, or deemed received, by such Indemnifying Party as Additional Payments through the applicable date of indemnification;
(ii) Stock Consideration received, or deemed received, by such Indemnifying Party with each share of Common Stock valued at $0.50 per share;
(iii) Cash, if any, received or deemed received, by such Indemnifying Party from the Final Payment Note as contemplated through the applicable date of indemnification;
(iv) Cash, if any, received, or deemed received, by Section 1.4(e)such Indemnifying Party from the Second Payment Note through the applicable date of indemnification; and
(v) and Cash received from the First Installment.
(yc) Notwithstanding anything contained in the product of 1,000,000 multiplied foregoing to the contrary, with respect to the Pero Parties, Buyer shall receive recovery for Damages from the Stock Consideration received by the average Pero Parties with each share of Common Stock valued at $0.50 per share;
(d) Notwithstanding anything contained in the foregoing to the contrary, no recipient of Stock Consideration under this Agreement may sell, transfer or convey any portion of the closing prices reported Stock Consideration received without providing to Buyer mutually acceptable assurances in respect of satisfaction of indemnification obligations;
(e) Each and every controversy or claim arising out of or relating to indemnification for Damages pursuant to Article 7 of this Agreement, which the Indemnifying Party and the Indemnified Party (the "Parties") have not resolved, shall be resolved by arbitration in accordance with the rules of the American Arbitration Association ("AAA") as modified by this Agreement. Each party shall select one arbitrator and the two such selected arbitrators shall select a third arbitrator (who shall not be appointed by the Parties) selected from the AAA. Judgment upon the award rendered in such arbitration shall be final and binding upon the Parties and may be entered in any court having jurisdiction thereof. Notice of the demand for arbitration shall be filed in writing with the other party and with the office of the AAA, located in Manhattan, New York, which such demand shall set forth in the same degree of particularity as required for complaints under the Federal Rules of Civil Procedure the claims to be submitted to arbitration. Additionally, the demand for arbitration shall include appropriate copies of all documents on which the Nasdaq National Market for Buyer Parent Common Stock for claims are based and a list of all persons who the twenty trading days (whether party seeking arbitration will call as witnesses with respect to such claims. The arbitration shall take place in Manhattan, New York. This agreement to arbitrate may be specifically enforced by a court of competent jurisdiction under the applicable law of the State of New York pertaining to arbitrations. The arbitrator shall have the authority and jurisdiction to enter any pre-arbitration awards that would aid and assist the conduct of the arbitration or not any trades of Buyer Parent Common Stock occur on any such day) prior preserve the Parties' rights with respect to the date hereofarbitration as the arbitrator shall deem appropriate in his discretion. The award of the arbitrator shall be in writing and it shall specify in detail the issues submitted to arbitration and the award of the arbitrator with respect to each of the issues so submitted. The provisions of the Federal Rules of Civil Procedure relating to the right of discovery in civil actions shall be applicable to such arbitration proceedings except as modified by the terms of this Agreement. Within thirty (30) days after the commencement of any arbitration proceeding under this Agreement, each party shall file with the arbitrator its contemplated discovery plan outlining the desired documents to be produced, the depositions to be taken and any other discovery action sought in the arbitration proceeding. After a hearing, the arbitrator in an interim award shall fix the scope and content of each Party's discovery plan as the arbitrator deems appropriate. The arbitrator shall have the authority to modify, amend or change such interim award fixing the discovery plans of the Parties upon application by a Party, if good cause appears for doing so. The "Prevailing Party" as determined by the arbitrator shall be entitled to recover from the losing party reasonable expenses, attorneys' fees and costs incurred in connection therewith and in the enforcement or collection of any judgment or award rendered therein. The "Prevailing Party" means the Party determined by the arbitrator to have most nearly prevailed, even if such Party does not prevail in all matters, or is not the Party in whose favor an award is rendered. Included within the cost recoverable pursuant to the terms of this Section shall be included service of process costs, filing fees, arbitration fees, arbitrators' fees, court and reporter costs, investigative costs, and expert witness fees. The award pursuant to such arbitration will be final, binding and conclusive.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Optigenex Inc.), Asset Purchase Agreement (Optigenex Inc.)
Certain Limitations. The liability of Seller(i) Notwithstanding anything to the contrary contained in this Agreement, Buyer or Buyer Parent, as applicable, (x) for claims under this Agreement shall be limited by the following:
(a) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, any claim for indemnity made pursuant to Section 8.1 8.2(b) (an “Environmental Standalone Claim”), or a claim based on a failure of any representation or warranty made by Sellers in Section 8.23.11 (collectively an “Environmental Representations Claim” an Environmental Standalone Claim and an Environmental Representations Claim shall hereinafter be collectively referred to as “Environmental Indemnity Claims”), Sellers shall not be liable for such claims unless and until the aggregate amount of all indemnifiable Losses relating to such claims equals or exceeds Four-Hundred Fifty Thousand Dollars ($450,000), in which case Sellers shall be liable only for the amount of the Losses in excess of such amount; (y) from and after the Closing, the maximum aggregated amount of indemnifiable Losses which may be recovered under Section 8.2(b) shall be Thirteen Million Five Hundred Thousand Dollars ($13,500,000); and (z) Sellers shall not be liable for any Environmental Standalone Claim or Environmental Representation Claim unless such claim is made hereunder prior to September 25, 2028.
(ii) With respect to any and all Environmental Indemnity Claims, Purchaser and Sellers, as the case may be, shall be limited act only in a “Commercially Reasonable Manner” which shall mean the most cost-effective and commercially reasonable method for investigation, remediation, removal, corrective action, containment, monitoring and/or other response action permitted by applicable Environmental Laws, determined from the perspective of a reasonable business person acting (without regard to actual outthe availability of indemnification hereunder) to achieve compliance with Environmental Laws in effect as of the Closing (it being understood that Commercially Reasonable Manner shall include the use of risk-of-pocket expenses and shall in no event include any specialbased remedies, indirectinstitutional or engineering controls, incidental or consequential damages whatsoeverdeed restrictions, based on the use of the property at Closing).
(biii) Two years Sellers shall have no obligations for any Environmental Indemnity Claim to the extent Losses thereunder result from or are the consequence of any action (including disclosure, report or other communication from the Purchaser and its Affiliates (or their agents) to any Governmental Authority or other third party or any Phase II or other intrusive investigations or sampling, testing or monitoring of the soil, surface water or groundwater performed by Purchaser or its Affiliates (or their agents)) that is not (A) required by an Environmental Law; or (B) necessary to address a condition first discovered as a result of construction activities at, on or beneath a Leased Real property or Real Property.
(iv) Sellers shall have no obligation for any Environmental Indemnity Claim to the extent Losses result, in whole or in part, from any change in use of any Leased Real Property, any Real Property or the property subject to the Sublease Agreement from its current use to any non-industrial use after the Closing Date Date.
(or, in the case of a claim for breach of Section 3.15, three years v) From and after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such dateBusiness, any Leased Real Property or any Real Property, Purchaser shall, and will cause each of its Affiliates and Subsidiaries to, comply with all applicable Environmental Laws in all material respects.
(cvi) Two years after The Purchaser Indemnitees shall be permitted to assign all of their rights to bring an Environmental Indemnity Claim; provided that no more than one such assignment may be made by all the Closing DatePurchaser Indemnitees, Buyer and Buyer Parent shall have no further obligations under this Article 8taken as a whole, this Agreement or otherwiseand; provided, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to further, that any such date.
(d) No Buyer Losses or Seller Lossesassignment, as the case may beif made, shall be asserted by a Buyer Indemnitee or a Seller Indemniteeeffective if, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstandingand only if, the representations and warranties contained assignee agrees in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed writing to be breached only bound to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior limitations applicable to the date hereofEnvironmental Indemnity Claims set forth in this ARTICLE VIII.
Appears in 2 contracts
Sources: Purchase Agreement (M/a-Com Technology Solutions Holdings, Inc.), Purchase Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Certain Limitations. The liability of Seller(a) Notwithstanding anything contained herein to the contrary, Buyer or Buyer Parent, as applicable, Seller shall not be obligated to indemnify Purchaser Indemnified Parties for claims aggregate Purchaser Losses (i) under this Agreement pursuant to Section 8.1(a)(i) in excess of $5,500,000 (the “Cap”) or (ii) under this Agreement (other than pursuant to Sections 5.8 or 8.1(a)(iii)) in excess of an amount equal to the Purchase Price. Notwithstanding anything contained herein to the contrary, Purchaser shall not be obligated to indemnify Seller Indemnified Parties for aggregate Seller Losses (i) under this Agreement pursuant to Section 8.1(b)(i) in excess of the Cap; provided, however, that the limitations set forth in clause (i) shall not apply to any breaches of any Fundamental Representation or (ii) under this Agreement (other than pursuant to Sections 5.8 or 8.1(b)(iii)) in excess of an amount equal to the Purchase Price.
(b) Notwithstanding anything contained herein to the contrary, Seller shall not be obligated to indemnify Purchaser Indemnified Parties under this Agreement pursuant to Section 8.1(a)(i), unless and until the aggregate Purchaser Losses subject to such indemnification collectively exceed $550,000 (the “Deductible”), whereupon such indemnification shall be limited made by Seller only with respect to the following:amount of such Purchaser Losses in excess of the Deductible; provided, however, that the Deductible shall not apply to any breaches of any Fundamental Representation. Notwithstanding anything contained herein to the contrary, Purchaser shall not be obligated to indemnify Seller Indemnified Parties under this Agreement pursuant to Section 8.1(b)(i), unless and until the aggregate Seller Losses subject to such indemnification collectively exceed the Deductible, whereupon such indemnification shall be made by Purchaser only with respect to the amount of such Seller Losses in excess of the Deductible; provided, however, that the Deductible shall not apply to any breaches of any Fundamental Representations.
(ac) If The representations and warranties of Seller and Purchaser contained in Article III and Article IV, respectively, of this Agreement shall survive the Closing and terminate on the date that is 12 months following the Closing Date; provided that the Fundamental Representations shall survive until the expiration of the applicable statute of limitations.
(d) The obligations to indemnify and hold harmless a Party pursuant to Sections 8.1(a)(i) or 8.1(b)(i) shall terminate when the applicable representation or warranty terminates pursuant to Section 8.2(c); provided, however, that such obligations to indemnify and hold harmless shall not have occurred, recovery of the Buyer Indemnitees or terminate with respect to any claims as to which the Seller IndemniteesIndemnified Party or Purchaser Indemnified Party, as the case may be, pursuant to Section 8.1 or Section 8.2be indemnified (each, as an “Indemnified Party”) shall have, before the case may beexpiration of the applicable survival period, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of previously made a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of by delivering a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to (stating in reasonable detail the basis of such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insuranceclaim, to the extent proceeds of such insurance are paidknown by the Indemnified Party) to the indemnifying Party hereunder (the “Indemnifying Party”).
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only Each Person entitled to indemnification hereunder shall, to the extent there was a violation as would be required under applicable Law, take all reasonable steps to mitigate all Losses after becoming aware of applicable Environmental Laws at the time the any event referred that could reasonably be expected to give rise to any Losses which are indemnifiable or recoverable hereunder or in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregateconnection herewith.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Extreme Networks Inc)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If Except as provided in Section 8.03(b), no claim for indemnification may be made under Section 8.02(b):
(i) until the Closing cumulative total of all Damages claimed by any Parent Entity under Section 8.02(b) exceeds $50,000 (the “Deductible”), in which case such Parent Entity shall not have occurred, recovery be entitled to recover only Damages in excess of the Buyer Indemnitees or Deductible; or
(ii) after the Seller Indemnitees, as cumulative total of all Damages collected by the case may be, pursuant Parent Entities under Section 8.02(b) equals an amount equal to Section 8.1 or Section 8.2, as 15% of the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverCompany Merger Consideration (the “Cap”).
(b) Two years after Notwithstanding the Closing Date foregoing, the terms, conditions and limitations of Section 8.03(a) shall not apply to any claim: (ori) based on willful breach, in the case of intentional misrepresentation, or fraud, or (ii) for indemnification as it relates to a claim for breach of Section 3.15any Seller Fundamental Representations. Parent, three years after on behalf of itself and the Closing DateParent Entities, andhereby agrees not to seek from the Indemnifying Holders, and none of the Parent Entities shall be entitled to recover from the Indemnifying Holders, any Damages or other amounts, at any time in excess of the case amount of such Cap. Except for claims based on a claim party’s willful breach, intentional misrepresentation or fraud, the aggregate liability of the Indemnifying Holders for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses any Damages with respect to which the Buyer Indemnitees matters set forth in this Article VIII will not exceed the value of the Company Merger Consideration. Other than as set forth above, In no event shall any Indemnifying Holders have given Seller written notice prior any obligation to personally indemnify or hold the Parent Entities harmless from or against any Damages (nor any obligation to return any Merger Consideration already received by such dateIndemnifying Holder for any reason other than as set forth in Section 9.14(c)).
(c) Two years All indemnification payments payable hereunder shall be reduced by the amount of insurance proceeds and any indemnity, contribution, or other similar payment (after deducting related costs and expenses, including any deductible amount and any resultant increase in insurance premiums) actually received by a Parent Entity as a result of the Closing Date, Buyer and Buyer Damages for which such Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such dateEntity is seeking indemnification.
(d) No Buyer Losses or Seller Losses, as In the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to event of any matter that is covered giving rise to an indemnity obligation of the Indemnifying Holders pursuant to Section 8.02, the applicable Parent Entity will take, or cooperate with the Indemnifying Holders, if so requested, in order to take, all reasonable measures to mitigate the consequences of the matter (including taking steps to prevent any contingent Liability from becoming an actual Liability) as required by insurance, to the extent proceeds of such insurance are paidapplicable Law.
(ie) Anything to To the contrary herein notwithstandingextent required by applicable Law, the representations Parent Entities shall, and warranties contained in clauses (a) through (e) shall take, and shall cause others under their respective control to take, all reasonable efforts to, mitigate Damages upon becoming aware of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only any event or circumstance that could reasonably be expected to the extent there was a violation of applicable Environmental Laws at the time the event referred give rise to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregateDamages.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Panbela Therapeutics, Inc.), Merger Agreement (Panbela Therapeutics, Inc.)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement indemnification provided in Section 7.02 and Section 7.03 shall be limited by subject to the followingfollowing limitations:
(a) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, Payments by an Indemnifying Party pursuant to Section 8.1 7.02 or Section 8.2, as the case may be, 7.03 in respect of any Loss shall be limited reduced by an amount equal to actual out-of-pocket expenses the net amount of any insurance proceeds or any indemnity, contribution or other similar payment received by the Indemnified Party in respect of any such Loss. The Indemnified Party shall (i) use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses and shall in no event include (ii) to the extent the Indemnified Party is unable to recover amounts under clause (i) sufficient to cover any specialLosses (such amounts, indirectthe “Uncovered Amounts”), incidental upon the written request of the Indemnifying Party, assign to the Indemnifying Party the right to recover the Uncovered Amounts under such insurance policies or consequential damages whatsoeverindemnity, contribution, or other similar agreements and use commercially reasonable efforts to cooperate with the Indemnifying Party’s claims thereunder.
(b) Two years after the Closing Date (or, in the case of a claim In no event shall any Indemnifying Party be liable to any Indemnified Party for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwiseany punitive damages, except for Buyer Losses with respect if and to which the Buyer Indemnitees have given Seller written notice prior extent any such damages are recovered against an Indemnified Party pursuant to such datea Third-Party Claim.
(c) Two years after Each Indemnified Party shall take, and cause its Affiliates to take, to the Closing Dateextent required by Law, Buyer and Buyer Parent shall have no further obligations under this Article 8all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, this Agreement or otherwisedoes, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such dategive rise thereto.
(d) No Buyer The parties agree that for purposes of (i) determining whether there has been a breach of or inaccuracy in any representation or warranty subject to indemnification pursuant to this Article VII and (ii) calculating the amount of Losses or Seller Losseswith respect thereto, as the case may be, such representations and warranties alleged to have been breached shall be asserted by a Buyer Indemnitee construed as if any qualification or a Seller Indemnitee, as applicable, limitation with respect to any matter that is covered materiality, whether by insurance, reference to the extent proceeds terms “material,” “in all material respects,” “in any material respect” or “Material Adverse Effect” or words of similar import, were omitted from the text of such insurance are paidrepresentations and warranties.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only In no event shall any Indemnifying Party be liable to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Indemnified Party for any Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Aggregate Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean plus the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to ▇▇▇▇ ▇▇▇▇-▇▇▇ Payment and the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof2017 Earn-Out Payment.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Sanomedics, Inc.), Stock Purchase Agreement (POSITIVEID Corp)
Certain Limitations. (i) Notwithstanding anything to the contrary in this Section 1.15, (A) from and after the occurrence of any Triggering Event, (1) none of the Regulatory Milestones set forth in subsections (A) through (F) of Section 1.15(a)(i) that has not yet been paid as of such occurrence shall be payable and (2) if a Triggering Event shall occur after a Regulatory Milestone Payment has been paid, the amount of such Regulatory Milestone Payment shall be credited against fifty percent (50%) of any future Milestone Payment that otherwise becomes payable and the amount of such future Milestone Payment shall be reduced by the amount so credited and (B) without limitation of the foregoing clause (A), if a Designated Event occurs, the Designated Event Adjustment Amount shall be credited against any future Milestone Payment (or portion thereof) that otherwise becomes payable hereunder and the amount of such future Milestone Payment (or portion thereof) shall be reduced by the amount so credited. In the event that both of the foregoing clauses (A) and (B) apply to any Milestone Payment, clause (A) shall be applied before clause (B).
(ii) Each of the Milestone Payments shall only be payable once with respect to the Product, upon the first occurrence of the corresponding Milestone Event, and no additional payment will be due in the event of any repeated occurrence of such Milestone Event with respect to the Product or to any product developed by the Buyer as a follow-on product to the Product. The Buyer’s maximum aggregate liability for any and all breaches by the Buyer of Seller, Buyer or Buyer Parent, as applicable, for claims its obligations under this Agreement shall be limited by the following:
(a) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, 1.15 shall be limited to actual out-of-pocket expenses and shall in no event include the unpaid portion, if any, of any special, indirect, incidental or consequential damages whatsoeverMilestone Consideration.
(biii) Two years after the Closing Date (or, in the case of Nothing herein or elsewhere shall constitute a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which guarantee by the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after of the Closing Dateachievement of any or all of the Milestones or the payment of any or all of the Milestone Consideration. Neither the Buyer nor any of its Affiliates or any of its or their respective representatives has made any representation or warranty whatsoever, express or implied, regarding the Milestone Consideration, the Milestones or the achievement thereof, and no Person has relied on any projections, estimates, forecasts, business plans or other information provided by the Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to of the extent proceeds of such insurance are paidforegoing or otherwise.
(iv) Each of the Company Equityholders, by his, her or its execution of a Written Consent, a Surrender Agreement, a Warrant Surrender Agreement, a Letter of Transmittal and/or receipt of Aggregate Merger Consideration hereunder, acknowledges and agrees that, subject to the final sentence of this Section 1.15(b)(iv), (A), Buyer shall be entitled to conduct the business of Buyer and its Affiliates (including, after the Closing, the Company and including with respect to the Product) in a manner that is in the best interests of Buyer and its stockholders and Buyer shall have the absolute right and sole and absolute discretion to operate and otherwise make decisions with respect to the conduct of the business of Buyer and its Affiliates (including, after the Closing, the Company and including with respect to the Product) and to take or refrain from taking any action with respect thereto; (B) the Buyer or an Affiliate of the Buyer currently or may in the future offer products or services that compete, either directly or indirectly, with the Product and may make decisions with respect to such products and services that may adversely affect the achievement of the Milestones; and (C) neither the Buyer nor any of its Affiliates shall have any liability whatsoever to any Company Equityholder or any other Person for any claim, loss or damage of any nature that arises out of or relates in any way to any decisions or actions affecting whether or not or the extent to which the Milestone Consideration becomes payable in accordance with this Section 1.15. Notwithstanding the foregoing, Buyer agrees that, within the United States and the Major European Countries, (i) for a period of four (4) years following the Closing, it will act in good faith and use Commercially Reasonable Efforts to obtain the Regulatory Approvals, and (ii) following receipt of the Regulatory Approvals, it will act in good faith and use Commercially Reasonable Efforts to commercialize (or cause to be commercialized) the Product with the aim of achieving the Regulatory Milestones and the Sales Milestones; provided that the Buyer’s obligations under this clause (ii) shall terminate upon the earlier of the sixth (6th) anniversary of the Closing Date and the payment in full of all Sales Milestone Payments.
(v) The right of any Company Equityholder to receive any amounts with respect to Milestone Consideration (A) shall not be evidenced by a certificate or other instrument, (B) shall not be assignable or otherwise transferable by such Company Equityholder, except by will, upon death or by operation of Law, and (C) does not represent any right other than the right to receive the consideration set forth in this Section 1.15. Any attempted transfer of the right to any amounts with respect to Milestone Consideration by any holder thereof (other than as specifically permitted by the immediately preceding sentence) shall be null and void.
(vi) Until the payment of all Milestone Payments, any direct or indirect sale, transfer or other disposition of all or substantially all of the assets of the Buyer and its Subsidiaries related to the Product, or the exclusive license or other disposition of substantially all of the worldwide rights (or all or substantially all of the United States rights) to the Product by the Buyer (a “Product Line Sale”), shall be made expressly subject to the provisions of this Section 1.15, which obligations shall be assumed by the purchaser, transferee, acquirer, or licensee in such Product Line Sale (the “Product Line Transferee”), and in the event of any such assumption, “Net Sales” shall thereafter be the net sales of the Product by such Product Line Transferee. “Product Line Sale” shall exclude any transaction or series of related transactions that results in the direct or indirect transfer of all or a majority of the capital stock of the Buyer. Anything to the contrary herein notwithstanding, without the representations and warranties contained in clauses consent of the Company Equityholder Representative (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed not to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstandingunreasonably withheld, conditioned or delayed), the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent Buyer shall not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that enter into any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 Product Line Sale (other than in connection with respect to Section 8.1(d), (ethe sale or transfer of all or majority of the consolidated assets of the Buyer) and (f)) by all Buyer Indemnitees shall be limited if the Product Line Transferee then commercially sells in the aggregate to United States an anti-coagulant reversal agent that competes with the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofProduct.
Appears in 2 contracts
Sources: Agreement and Plan of Merger, Merger Agreement (Amag Pharmaceuticals Inc.)
Certain Limitations. The liability provisions of SellerSections 3.6, Buyer or Buyer Parent3.9, as applicable, for claims under this Agreement 3.10 and 3.11 shall be limited by subject to the following:
(a) If Each Lender that desires compensation or indemnification under Sections 3.6, 3.9 or 3.11 shall notify the Borrower through the Administrative Agent of any event occurring after the Closing shall not have occurredDate entitling such Lender to compensation or indemnification under any of such Sections as promptly as practicable, recovery but in any event within 90 days after the occurrence of the Buyer Indemnitees event giving rise thereto; provided that (i) if any -------- such Lender fails to give such notice within 90 days after the occurrence of such an event, such Lender shall only be entitled to compensation or indemnification in respect of such event accruing under Sections 3.6, 3.9 or 3.11 with respect to the Seller Indemnitees, as period from and after the case may be, pursuant date 90 days prior to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverdate that such Lender does give notice.
(b) Two years after Any notice given by a Lender pursuant to subsection (a) above shall certify (i) that one of the Closing Date events described in Sections 3.6, 3.9 or 3.11 has occurred, describing in reasonable detail the nature of such event, (orii) as to the increased cost, reduced amount receivable or loss or expense resulting from such event and (iii) as to the additional amount demanded by such Lender, attaching a reasonably detailed explanation of the calculation thereof. Such a certificate as to any compensation or indemnification payable pursuant to Sections 3.6, 3.9 or 3.11, submitted by such Lender through the Administrative Agent to the Borrower, shall be conclusive and binding on the parties hereto in the case absence of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such datemanifest error.
(c) Two years If any Lender requests compensation or indemnification from the Borrower under Sections 3.6, 3.9 or 3.11, the Borrower may, at its option, within fifteen (15) days after receipt by the Closing DateBorrower of written demand from the affected Lender for payment of such compensation or indemnification, Buyer notify the Administrative Agent and Buyer Parent such affected Lender of its intention to replace the affected Lender. So long as no Event of Default shall have no further occurred and be continuing, the Borrower may obtain, at the Borrower's expense, a replacement Lender for the affected Lender. If the Borrower obtains a replacement Lender within ninety (90) days following notice of its intention to do so, the affected Lender must sell and assign its loans and obligations and any Commitments to such replacement Lender pursuant to Section 11.3(b) (without giving effect to any requirement therein that the Administrative Agent consent thereto), for an amount equal to the principal balance of all Revolving Loans held by the affected Lender and all accrued interest and Fees with respect thereto through the date of such sale, provided that the Borrower shall have paid to such affected -------- Lender the compensation or indemnification that it is entitled to receive under Sections 3.6, 3.9 or 3.11, through the date of such sale and assignment. Notwithstanding the foregoing, the Borrower shall not have the right to obtain a replacement Lender if the affected Lender rescinds its demand for such compensation or indemnification within fifteen (15) days following its receipt of the Borrower's notice of intention to replace such affected Lender. Additionally, if the Borrower gives a notice to the Administrative Agent and an affected Lender of its intention to replace such affected Lender and does not so replace such affected Lender within ninety (90) days thereafter, the Borrower's rights under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred3.15(c) shall be deemed to be breached only to terminate and the extent that any Borrower shall promptly pay all compensation or indemnification demanded by such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, affected Lender pursuant to the provisions of this Article 8Sections 3.6, unless the amount of Buyer Losses 3.9 or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate3.11.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 2 contracts
Sources: Credit Agreement (Friedmans Inc), Credit Agreement (Friedmans Inc)
Certain Limitations. (a) The liability of Seller, Buyer aggregate amount for which either Seller or Buyer Parentshall be liable pursuant to Section 5.02 or Section 5.03, as applicable, and any other dispute regarding this Agreement or the transactions contemplated hereby, shall not exceed the amount of Purchase Price actually received by Seller.
(b) No Party will be entitled to indemnification under Section 5.02 or Section 5.03, as applicable, for claims under this Agreement shall be limited by the following:
(a) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations indemnifiable Losses under this Article 8VI until the indemnifiable Losses have an aggregated cumulative amount which equals or exceeds $100,000, this Agreement or otherwise, except for Buyer Losses with respect to after which the Buyer Indemnitees have given Seller written notice prior to time such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, indemnifying Party shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to liable in full for the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer accumulated indemnifiable Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8VI.
(c) In no event shall any Party be liable to any other Party for any punitive, unless special, exemplary, or speculative damages, related to the amount breach, or alleged breach, of Buyer Losses this Agreement or in connection with any transaction contemplated hereby, except (i) if paid or payable to a third party, or (ii) in connection with any fraud on the part of Seller Lossesin connection with this Agreement. Notwithstanding the foregoing, as each Party shall have the case may beright to recover all other indirect damages including, equals at least Cdn$350,000 without limitation, lost profits, loss of future revenue or income, diminution in value, loss of business reputation, or incidental damages except the aggregate Seller and then [*****] liability for the lost profit, income or revenue shall not exceed the Purchase Price.
(d) Each Party entitled to indemnification hereunder (each, an “Indemnified Party”) shall take, and cause its affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Buyer Loss but not exceeding Ten Thousand U.S. Dollars (US$10,000); provided, however, that (i) no Indemnified Party shall: (1) be required to take any action to mitigate any Losses incurred or Seller Lossessuffered to the extent based upon, as arising out of, with respect to or by reason of fraud prior to the case may be, exceed Cdn$350,000 in Closing; (2) be required to bring a legal proceeding against any person; or (3) have any obligation to take any actions that unreasonably interfere with or impact the aggregatebusiness of such Indemnified Party; and (ii) the failure of an Indemnified Party to use such efforts to mitigate shall not constitute a defense to the Indemnifying Party’s obligations to indemnify the Indemnified Party pursuant to this Agreement.
(ive) The aggregate amount Provided, however that none of Buyer Losses recoverable pursuant to the provisions of limitations set forth in this Article 8 (other than Section 5.05 shall apply with respect to Section 8.1(d)any Losses arising from, (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii)connection with or related to, "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus a breach that constitutes fraud or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofintentional misrepresentation.
Appears in 2 contracts
Sources: Asset Purchase Agreement (AmpliTech Group, Inc.), Asset Purchase Agreement (AmpliTech Group, Inc.)
Certain Limitations. The 15.3.1 Notwithstanding anything to the contrary in this Article 15 or elsewhere in this Agreement, neither party will have any obligation with respect to Liabilities as a result of breaches of representations or warranties hereunder unless (i) the aggregate amount of such Liabilities as a result of breaches of representations or warranties hereunder exceeds or is reasonably expected to exceed $5,000,000, in which case only the excess shall be subject to indemnification under this Article 15 and (ii) written notice of such Liability, in reasonable detail, is delivered to the other party within eighteen months of the Closing.
15.3.2 In determining the threshold amount identified above, and once the threshold is exceeded, no party shall have any obligation for any individual claim amounting to less than $100,000.
15.3.3 Seller's aggregate liability of Seller, Buyer or Buyer Parent, as applicable, for indemnification with respect to all claims under Section 15.1.2 shall not exceed $50,000,000.
15.3.4 Except for any action seeking specific performance and/or injunctive relief for the breach of any covenant contained in this Agreement Agreement, the indemnification provided an Indemnitee pursuant to this Article 15 shall be limited such Indemnitee's sole remedy for any breach by the following:
Indemnitor of any representation, warranty or covenant contained in this Agreement, or in any certificate or document (ato the extent such certificates or documents relate to matters covered by the representations, warranties or covenants contained herein) If required to be delivered in connection with this Agreement, or any claim relating to the Closing shall not have occurredsubject matter of such representations, recovery warranties or covenants, or otherwise in connection with the consummation of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoevertransactions provided for hereby.
15.3.5 IN NO EVENT WILL ANY PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR PUNITIVE OR EXEMPLARY DAMAGES OR LOST PROFITS, EXCEPT TO THE EXTENT ASSERTED BY ANY THIRD PARTY.
15.3.6 Neither party (bthe "DISCLOSING PARTY") Two years after shall have any liability to the other party (the "RECEIVING Party") for any breach of representation or warranty set forth in this Agreement, including all agreements and documents incorporated herein by reference, if the Receiving Party knew on the Closing Date that such representation or warranty was incorrect, incomplete or otherwise breached (or, a "PUTATIVE BREACH") and had not disclosed such Putative Breach to the Disclosing Party in the case of a claim for breach of Section 3.15, three years after writing prior to the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to . No such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) Putative Breach shall be deemed to be breached only to the extent that a breach of any such breaches result in Buyer Losses in excess of Cdn$50,000 in representation or warranty by the aggregate and then only to Disclosing Party. For the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) purposes of this Section 8.3(e)) 15.3.6, a party's knowledge shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim Seller's Knowledge or claims shall be asserted by a Buyer Indemnitee or a Seller IndemniteePurchaser's Special Knowledge, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Valero Energy Corp/Tx), Sale and Purchase Agreement (Tesoro Petroleum Corp /New/)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If Notwithstanding the Closing shall not have occurredother provisions of this Article VII, recovery in respect of the Buyer Indemnitees any indemnification by Seller or the Seller Indemnitees, as the case may bePurchaser, pursuant to Section 8.1 7.1 or Section 8.27.2, as respectively, (i) there will be no obligation to indemnify for any individual item where the case may beLosses relating thereto is less than [***] of the Purchase Price (the “De Minimis Amount”) (provided, that such Losses shall be limited aggregated for purposes of this clause (i) if they arise out of the same matter, fact, circumstance or event, or a series of substantially related matters, facts, circumstances or events) and, if such Losses do not exceed the De Minimis Amount, then such Losses shall not be applied to actual out-of-pocket expenses or considered for purposes of calculating the aggregate amount of Losses under the following clause (ii); (ii) where the Losses arising from such individual claim is equal to or greater than the De Minimis Amount, until the aggregate amount of all such Losses incurred by the Indemnified Party exceeds [***] of the Purchase Price (the “Deductible”), at which time all such Losses in excess of the Deductible will be subject to indemnification hereunder; and shall (iii) Seller’s or Purchaser’s aggregate Liability for indemnification pursuant to this Article VII, unless arising in no event include any specialconnection with Fraud of Seller or the Divesting Entity or Third Party Claims, indirect, incidental or consequential damages whatsoeverwill not exceed [***] of the Purchase Price received by Seller.
(b) Two years after If, prior to the Closing Date (orClosing, Purchaser has had knowledge of any breach by Seller of any representation, warranty, covenant or agreement contained in this Agreement and Purchaser proceeds with the case of a claim for Closing, Purchaser shall be deemed to have waived such breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under pursuant to this Article 8VII, this Agreement to sue for damages or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior assert any other right or remedy arising from any matters relating to such datebreach, notwithstanding anything to the contrary contained herein or any certificate delivered pursuant hereto.
(c) Two years after Notwithstanding anything to the Closing Datecontrary contained herein (unless actually awarded and paid on account of a Third Party Claim ), Buyer and Buyer Parent no Party shall have no further obligations under this Article 8be liable for any (i) special, this Agreement punitive, exemplary, incidental, consequential or indirect damages, (ii) lost profits or lost business, loss of enterprise value, diminution in value of any business, damage to reputation or loss of goodwill or (iii) damages calculated based on a multiple of profits, revenue or any other financial metric, in each case, whether based on contract, tort, strict liability, other Law or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not arising from any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofother Party’s sole, joint or concurrent negligence, strict liability or other fault.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Upstream Bio, Inc.), Asset Purchase Agreement (Upstream Bio, Inc.)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If The indemnification obligations under Sections 8.1(a) and 8.2(a) above shall terminate on the Closing shall not have occurred, recovery second anniversary of the Buyer Indemnitees or Closing, except that they shall continue thereafter with respect to any claims for indemnification made in writing under said Sections prior to such second anniversary. The remaining indemnification obligations under Sections 8.1 and 8.2 above shall terminate upon the Seller Indemniteesrunning of the applicable statutes of limitations, as except that they shall continue thereafter with respect to any claims for indemnification made in writing prior to the case may be, pursuant to Section 8.1 or Section 8.2, as running of the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverapplicable statutes of limitations.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, If any party to this Agreement becomes aware of or otherwise, except for Buyer Losses receives notice of any third party claim or the commencement of any third party action or proceeding with respect to which another party (the Buyer Indemnitees have given Seller written "Indemnitor") is obligated ---------- to provide indemnification under this Article VIII, the party entitled to indemnification (the "Indemnitee") shall promptly give the Indemnitor notice ---------- thereof. The failure to give such notice promptly shall not be a condition precedent to any liability of the Indemnitor under the provisions for indemnification contained in this Agreement, unless (and only to the extent that) failure to give such notice promptly materially prejudices the rights of the Indemnitor with respect to such claims, actions, or proceedings. The Indemnitor may compromise or defend, at the Indemnitor's own expense, and by the Indemnitor's own counsel reasonably acceptable to the Indemnitee, any such matter involving the asserted liability of the Indemnitee; provided, however, -------- ------- that no compromise or settlement thereof may be effected by the Indemnitor without the Indemnitee's consent (which shall in any event not be unreasonably withheld or delayed); and further provided that an Indemnitor may not undertake ------- -------- the defense of any such third party claim unless (i) the claim is solely for monetary damages, and (ii) the Indemnitor confirms in writing to the Indemnitee (and to such third party), prior to undertaking such datedefense or prior to making such compromise or settlement, that the matter concerning indemnification is indemnifiable by the Indemnitor. If the Indemnitor elects not to compromise or defend such matter or if the Indemnitor may not undertake the defense of such third party claim, then the Indemnitee, at the Indemnitor's expense and by the Indemnitee's own counsel, may defend such matter, but regardless of whether or not the Indemnitor elects to assume the defense of any such matter the Indemnitee may not compromise the defense thereof without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld or delayed. In any event, the Indemnitee, the Indemnitor and the Indemnitor's counsel (and, if applicable, the Indemnitee's counsel) shall cooperate in the compromise of, or the defense against, any such asserted liability. If the Indemnitor chooses to defend any claim, the Indemnitee shall make available to the Indemnitor any books, records, or other documents within its control that are reasonably necessary or appropriate for such defense. The foregoing indemnity procedures shall not be read as a limitation on either party's right to seek indemnification under this Article VIII for matters other than third party initiated claims or demands.
(c) Two years after No Buyer Indemnitee pursuant to Section 8.1 above shall be entitled to any recovery for any Buyer Losses suffered by such Buyer Indemnitee as a result of a breach of a representation and warranty hereunder by Sellers, unless and until the Closing Dateaggregate amount of all Buyer Losses suffered by all Buyer Indemnitees as a result of all breaches of representations and warranties hereunder exceeds a cumulative aggregate total of $50,000, in which event the Buyer and Buyer Parent shall have no further obligations Losses may be claimed from first dollar. The aggregate total liability of Sellers under this Article 8VIII, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to insofar as such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by liability is based upon a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds breach of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses Section 4.12 (a) through Inventories), shall not exceed fifty thousand dollars (e) $50,000), and Buyer shall have no claim for indemnification with respect to any breach of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of said Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only 4.12 to the extent that any the matter upon which such breaches result claim is based was reflected in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only an adjustment to the extent Inventory Value pursuant to Section 3.1(c) above. Absent a showing of fraud by a party, and assuming the Closing has occurred, the indemnification obligation of a party under this Article VIII shall be the sole remedy of any other party against such Buyer Losses exceed Cdn$30,000 party for monetary damages for breach of any representation or warranty or covenant contained in this Agreement. Nothing herein shall limit a party's right to seek injunctive or other equitable relief in connection with the aggregateenforcement of this Agreement.
(iiid) No claim or claims Notwithstanding anything in this Agreement to the contrary, neither Sellers nor Buyer shall be asserted by entitled to seek, claim, or collect punitive damages. Accordingly, Sellers and Buyer hereby expressly waive any right to seek, claim, or collect any punitive damages in connection with, or related to, a Buyer Indemnitee breach or a Seller Indemnitee, as applicable, pursuant to the provisions violation of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate any other agreement entered into between Sellers and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification AmountBuyer. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.*
Appears in 1 contract
Sources: Asset Purchase Agreement (Speedway Motorsports Inc)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:50-
(a) If Notwithstanding anything to the Closing shall contrary contained in this ARTICLE VIII, the Seller and the Selling Partners will not have occurredany liability pursuant to Section 8.02(a)(i) or Section 8.02(b)(i) (other than with respect to fraud or the Excluded Representations, recovery for which the following limitation will not apply) until the aggregate amount of all Losses sustained by the Buyer Indemnitees or exceeds $240,000.00 (the “Basket”), in which event (i) the Seller Indemnitees, as and the Selling Partners will be jointly and severally liable (in the case may be, pursuant to of liability arising under Section 8.1 8.02(a)(i)) or Section 8.2, as (ii) the Selling Partners will be severally liable (in the case may beof liability arising under Section 8.02(b)(i)), shall be limited for all such Losses without regard to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeversuch amount but only to the extent such Losses exceed the Basket.
(b) Two years after Notwithstanding anything to the Closing Date contrary contained in this ARTICLE VIII, the Seller and the Selling Partners will not have any liability pursuant to Sections 8.02(a)(i) or 8.02(b)(i) (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses other than with respect to fraud or the Excluded Representations, for which the Buyer Indemnitees have given Seller written notice prior to such date.
(cfollowing limitation will not apply) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 $4,800,000.00 in the aggregate.
(iic) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii)ARTICLE VIII, "Purchase Price Indemnification Amount" any inaccuracy in or breach of any representation or warranty will be determined without regard to any materiality, Material Adverse Effect, or other similar qualification contained in or otherwise applicable to such representation or warranty.
(d) Payments by an Indemnifying Party of any Loss shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment be limited to the Note amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received in respect of any such claim.
(e) Payments by an Indemnifying Party of any Loss shall be reduced by an amount equal to any Tax benefit realized as contemplated by Section 1.4(e)) and (y) the product a result of 1,000,000 multiplied such Loss by the average Indemnified Party.
(f) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive damages relating to the breach or alleged breach of this Agreement.
(g) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that gives rise to indemnification liability from the Indemnifying Party, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss, which costs shall be included within the calculation of indemnifiable Losses.
(h) In addition to the foregoing limitations, and notwithstanding anything in this Agreement to the contrary, in no event shall the total liability of any Selling Partner under this Agreement exceed the amount of the closing prices reported proceeds of this sale to which such Selling Partner is entitled, as set forth on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofSchedule 8.04(h).
Appears in 1 contract
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If Notwithstanding anything to the contrary contained herein, the other Transaction Agreements, the Seller Disclosure Schedule or any of the Schedules or Exhibits hereto or thereto, Purchaser acknowledges and agrees that neither Seller nor any of its Affiliates (including the AEB Companies), nor any Representative of any of them, makes or has made, and Purchaser has not relied on, any inducement or promise to Purchaser except as specifically made in this Agreement or any representation or warranty to Purchaser, oral or written, express or implied, other than as expressly set forth in Article III. Without limiting the generality of the foregoing, other than as expressly set forth in Article III, no Person has made any representation or warranty to Purchaser with respect to the Business, the AEB Companies, the Transferred Securities, the Assigned Contracts, the Assumed Liabilities or any other matter, including with respect to (i) merchantability, suitability or fitness for any particular purpose, (ii) the operation of the Business or the AEB Companies by Purchaser after the Closing, (iii) the probable success or profitability of the Business or the AEB Companies after the Closing or (iv) any information, documents or material made available to Purchaser, its Affiliates or their respective Representatives in any “data rooms,” information memoranda, management presentations, functional “break-out” discussions or in any other form or forum in connection with the transactions contemplated by this Agreement, including any estimation, valuation, appraisal, projection or forecast with respect to the Business or the AEB Companies. With respect to any such estimation, valuation, appraisal, projection or forecast (including the confidential information memoranda prepared by or on behalf of Seller in connection with the transactions contemplated by this Agreement or the Actuarial Report), Purchaser acknowledges that: (i) there are uncertainties inherent in attempting to make such estimations, valuations, appraisals, projections and forecasts; (ii) it is familiar with such uncertainties; (iii) it is not acting and has not acted in reliance on any such estimation valuation, appraisal, projection or forecast delivered by or on behalf of Seller to Purchaser (other than as expressly set forth in Article III); (iv) such estimations, valuations, appraisals, projections and forecasts are not and shall not be deemed to be representations or warranties of Seller or any of its Affiliates (other than as expressly set forth in Article III) and (v) it shall have occurredno claim against any Person with respect to any such valuation, recovery of the Buyer Indemnitees appraisal, projection or the Seller Indemnitees, forecast (other than as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverexpressly contemplated by this Agreement).
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have makes no further obligations express or implied representation or warranty hereby or otherwise under this Article 8Agreement as to the future experience, this Agreement success or otherwiseprofitability of the Business, except for Buyer Losses with respect whether or not conducted in a manner similar to the manner in which the Buyer Indemnitees have given Seller written notice Business was conducted prior to the Closing, that the reserves held by or on behalf of the AEB Companies or the assets supporting such datereserves have been or will be adequate or sufficient for the purposes for which they were established, or that the reinsurance recoverables taken into account in determining the amount of such reserves will be collectible.
(c) Two years after Purchaser further acknowledges and agrees that it (i) has made its own inquiry and investigation into and, based thereon, has formed an independent judgment concerning the Closing DateBusiness, Buyer the AEB Companies, the Transferred Securities, the Assigned Contracts and Buyer Parent shall the Assumed Liabilities, (ii) has been provided adequate access to such information as it has deemed necessary to enable it to form such independent judgment, (iii) has had such time as it deems necessary and appropriate fully and completely to review and analyze such information, documents and other materials and (iv) has been provided an opportunity to ask questions of Seller with respect to such information, documents and other materials and has received answers to such questions that it considers satisfactory. Purchaser further acknowledges and agrees that neither Seller nor any of its Affiliates has made any representations or warranties, express or implied, as to the accuracy or completeness of, and that Purchaser and its Affiliates have no further obligations under this Article 8made their investment decision with respect to the acquisition of the Transferred Securities without reliance upon such information, documents and other materials other than the representations and warranties expressly set forth in this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such dateother Transaction Agreements.
(d) No Buyer Losses Purchaser acknowledges and agrees that: (i) Independent Producers who marketed, sold or Seller Losses, as placed AEB Policies in connection with the case Business may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, have certain rights with respect to such AEB Policies and related records; (ii) neither Seller nor any matter that is covered by insuranceof its Affiliates has the power to transfer, assign or sell such rights or records, including any such rights comprising or purporting to be the right to renew any such AEB Policy upon its expiration or termination; and (iii) any representations or warranties contained in the Transaction Agreements with respect to such rights and records are made subject to the extent proceeds of such insurance are paid.
acknowledgements set forth in clauses (i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregateabove.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Certain Limitations. The liability Notwithstanding anything in this Agreement to the contrary,
(a) no party shall indemnify or otherwise be liable to any other party with respect to any claim for any breach of Sellera representation or warranty, Buyer or Buyer Parentfor the breach of any covenant contained in Section 5 of this Agreement, as unless notice of the claim is given within twelve months after the Closing Date;
(b) LCI shall not be required to indemnify or otherwise be liable to PCC or the Designated Affiliate, if applicable, for claims any breach of a representation or warranty, or for the breach of any covenant contained in Section 5 of this Agreement, unless the Losses of PCC and the Designated Affiliate, if applicable, from all such breaches exceed in the aggregate One Hundred Thousand Dollars, in which event LCI shall be required to indemnify PCC and the Designated Affiliate, if applicable, for all such Losses (subject to the other limitations in this Agreement);
(c) PCC shall not be required to indemnify or otherwise be liable to LCI or Travel for any breach of a representation or warranty unless the Losses of LCI and Travel from all such breaches exceed in the aggregate One Hundred Thousand Dollars, in which event PCC shall be required to indemnify LCI and Travel for all such Losses (subject to the other limitations in this Agreement);
(d) LCI shall not be required to indemnify or otherwise be liable to PCC or the Designated Affiliate, if applicable, for any breach of a representation or warranty, or for the breach of any covenant contained in Section 5 of this Agreement, to the extent that the Losses of PCC and the Designated Affiliate, if applicable, from all such breaches exceed in the aggregate Twenty-Five Million Dollars;
(e) PCC shall not be required to indemnify or otherwise be liable to LCI or Travel for any breach of a representation or warranty to the extent that the Losses of LCI and Travel from all such breaches exceed in the aggregate Twenty-Five Million Dollars;
(f) the amount of Losses for which a Claimant may be entitled to indemnification under this Agreement (but not the amount of Losses suffered by a Claimant for purposes of the foregoing provisions of this Section 10.5) shall be determined on an after-tax basis, after giving effect to any tax benefit arising from the incurring of any Loss and any tax detriment arising from the indemnification thereof;
(g) indemnification of Losses under this Agreement shall be limited by net of any insurance proceeds actually paid to the following:
(a) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses Claimant with respect to which the Buyer Indemnitees have given Seller written notice prior event giving rise to such date.
(c) Two years after the Closing DateLoss, Buyer and Buyer Parent but no Claimant shall have no further obligations any obligation under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior make any claim under any insurance policy that may be applicable to such dateevent.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Sources: Asset Acquisition Agreement (Paxson Communications Corp)
Certain Limitations. The liability (a) Other than Sellers' obligation to indemnify for Buyer Losses under Section 11.1(a) of Sellerthis Agreement arising out of a breach of representation or warranty contained in Section 4.2 (capitalization) or Section 4.12 (brokers), Sellers' obligation to indemnify for Buyer or Buyer Parent, as applicable, for claims Losses under Section 11.1(a) of this Agreement shall not accrue until the aggregate of all such Buyer Losses exceeds [*] Dollars ($[*]) (the "Loss Threshold") and then Sellers shall be liable for all such Buyer Losses in excess of such initial $[*] and shall be limited by to [*] Dollars ($[*]) in the following:aggregate. There shall be no Loss Threshold or limit on liability with respect to Sellers' obligations to indemnify under Sections 11.1(b) through (d).
(ab) If In no event shall any punitive, exemplary, special, indirect, incidental or consequential damages whatsoever be recoverable by any indemnitee under Article 11 hereof; except that, if punitive, exemplary, special, indirect, incidental or consequential damages have been asserted by a third party against a Seller Indemnitee or Buyer Indemnitee, the Closing indemnifying party shall not have occurred, recovery be liable therefor under the provisions of the this Article 11.
(c) Any payment required under this Article 11 paid to any Buyer Indemnitees Indemnitee or the any Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2Indemnitee, as the case may be, shall be limited to actual out-of-pocket expenses treated by the Buyer and the Sellers as an adjustment of the Purchase Price; provided, however, that no Buyer Losses indemnified hereunder shall in no event include any specialbe considered payment by Sellers for Net Assets or Facility Costs, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller and Buyer shall have no further obligations obligation to pay any amounts to Sellers under this Article 8, this Agreement or otherwise, except for Buyer Losses 2 with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregateLosses.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, indemnification provided for claims under this Agreement in Section 8.02 and Section 8.03 shall be limited by subject to the followingfollowing limitations:
(a) If the Closing Sellers shall not have occurred, recovery of be liable to the Buyer Indemnitees for indemnification under Section 8.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) exceeds ONE HUNDRED THOUSAND DOLLARS ($100,000) (the “Basket”), in which event Sellers shall be required to pay or be liable for all such Losses in excess of the Seller Indemnitees, as the case may be, Basket. The aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 8.1 or Section 8.2, as 8.02(a) shall not exceed SEVEN HUNDRED EIGHTY-THREE THOUSAND THREE HUNDRED SIXTY DOLLARS ($783,360) (the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.“Cap”).
(b) Two years after Buyer shall not be liable to the Closing Date (orSeller Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses in excess of the case Basket. The aggregate amount of a claim all Losses for breach of which Buyer shall be liable pursuant to Section 3.15, three years after 8.03(a) shall not exceed the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.Cap.
(c) Two years after Notwithstanding the Closing Dateforegoing, Buyer the limitations set forth in Section 8.04(a) and Buyer Parent Section 8.04(b) shall have no further obligations under this Article 8not apply to Losses based upon, this Agreement or otherwisearising out of, except for Seller Losses with respect to which or by reason of any inaccuracy in or breach of any Sellers’ Fundamental Representation or any Buyer’s Fundamental Representation, the Seller Indemnitees have given Buyer aggregate liability for which, in either Sellers’ or Buyer Parent written notice prior to such dateBuyer’s case, as applicable, shall be capped at the Purchase Price.
(d) No Buyer The amount of Losses or Seller Losses, that an Indemnified Party (as the case that term is described in Section 8.05) may be, recover pursuant to this ARTICLE 8 shall be asserted reduced, on a dollar for dollar basis, by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with any Tax benefits actually realized in respect to any matter that is covered by insurance, to of the extent proceeds Losses forming the basis of such insurance are paidclaim for recovery.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii)ARTICLE 8, "Purchase Price Indemnification Amount" any inaccuracy in or breach of any representation or warranty and the amount of any Loss shall mean the sum of (x) Cdn$13,062,741 (plus be determined without regard to any materiality, Material Adverse Effect or minus any adjustment other similar qualification contained in or otherwise applicable to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether such representation or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofwarranty.
Appears in 1 contract
Certain Limitations. The liability of SellerNotwithstanding anything to the contrary contained herein, Buyer or Buyer Parent, as applicable, the indemnification provided for claims under this Agreement in Section 8.2 and Section 8.3 shall be limited by subject to the followingfollowing limitations:
(a) If the Closing The Sellers shall not have occurred, recovery of be liable to the Buyer Indemnitees or for indemnification under Section 8.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.2(a) exceeds $337,500 (the “Deductible”), in which event the Seller Indemnitees, as Indemnitors shall only be required to pay or be liable for Losses in excess of the case may be, Deductible. The aggregate amount of all Losses for which the Seller Indemnitors shall be liable pursuant to Section 8.1 or Section 8.2, as 8.2(a) shall not exceed $337,500 (the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever“Cap”).
(b) Two years after Notwithstanding the Closing Date foregoing, the limitations set forth in Section 8.4(a) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation or any Seller Fraud. The aggregate amount of all Losses for which the Seller Indemnitors shall be liable pursuant to this Article VIII (orexcluding any claims based on any Seller Fraud) shall not exceed the Purchase Price.
(c) None of the parties will have any liability to another party under this Article VIII for any Loss to the extent (i) that the aggrieved party has actually recovered such Loss under any insurance policy (including, in the case of a claim for breach any recovery by any Buyer Indemnitees, the Rep & Warranty Policy) (solely to the extent of Section 3.15such “double recovery”), three years after the Closing Date, but net of costs collection and, in the case of recoveries from insurers, net of the deductible and any premiums increased for such policies as a result of such claim. In addition, in the event that any Losses are reasonably likely to be recovered by Buyer under the Rep & Warranty Policy in connection with any breach of any representations and warranties of Seller in Article III of this Agreement in an amount that exceeds the Rep & Warranty Policy Retention Amount, then Buyer shall not be entitled to bring any indemnification claim hereunder with respect to such claim for Loss in excess of the Rep & Warranty Policy Retention Amount until such time that Buyer has submitted a claim for such breach in accordance with the terms of Section 3.11the Rep & Warranty Policy. In addition, six years after none of the Closing Date), Seller shall parties will have no further obligations any liability to another party under this Article 8VIII for any Loss to the extent that such amount was expressly included in the Final Working Capital or otherwise expressly included in the calculation of the Adjusted Closing Payment, this Agreement as finally determined pursuant to Section 2.2 if the effect thereof was to reduce dollar-for-dollar the amount of the Final Working Capital and/or the Adjusted Closing Payment, as applicable, as compared to what it would have been absent such adjustment (with the intent of the provision to merely avoid “double counting”); provided, however, that for the avoidance of doubt, the foregoing shall not limit any claim for Losses arising out of or otherwise, except for Buyer Losses with respect to which resulting from the Buyer Indemnitees have given Seller written notice prior claim giving rise to such date.
(c) Two years after Losses by a dollar-for-dollar reduction in the Final Working Capital and/or the Adjusted Closing DatePayment, Buyer and Buyer Parent shall have no further obligations under as applicable, in accordance with the terms of this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such dateVIII.
(d) No Buyer Losses The amount of any liability of the Sellers under Section 5.11 or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, this Article VIII with respect to any matter that Loss of the Foreign Companies (the “Foreign Company Losses”) shall be reduced by the amount of any actual net reduction in cash payments for income Taxes realized by the parent entity of Buyer or its controlled Affiliates (the “Buyer Group”) as a result of the Foreign Company Losses giving rise to such indemnification payment. If the indemnification payment is covered by insurance, paid prior to the extent proceeds Buyer Group realizing any actual reduction in cash payments for income Taxes in connection with the Foreign Company Losses giving rise to such payment, and the Buyer Group subsequently realizes such actual reduction in cash payments for income Taxes within or with respect to the taxable year in which the Foreign Company Losses arise, then the Buyer shall pay the amount of such insurance are paid.
actual reduction in cash payments for Taxes to the Sellers in cash within ten (10) days of the Buyer Group’s realization of such actual reduction in cash payments for income Taxes (but not in excess of the indemnification payment received from the Sellers with respect to such Foreign Company Losses). For purposes of the preceding two sentences, (i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) Buyer Group shall be deemed to be breached only have realized an actual reduction in cash payments for income Taxes with respect to a taxable year if, and to the extent that that, the Buyer Group’s cumulative liability for income Taxes from the Closing Date through the end of such taxable year, calculated by excluding any Tax items attributable to the Foreign Company Losses and the receipt of any related indemnification payment for all taxable years, exceeds the Buyer Group’s actual cumulative liability for Taxes through the end of such breaches result in Buyer taxable year, calculated by taking into account any Tax items attributable to the Foreign Company Losses in excess and the receipt of Cdn$50,000 in the aggregate and then only any related indemnification payment for all taxable years (to the extent permitted by relevant Tax law and treating such Buyer Losses exceed Cdn$50,000 in Tax items as the aggregatelast items claimed for any taxable year).
(iie) Anything Notwithstanding anything to the contrary herein notwithstandingin this Agreement, the representations and warranties contained Seller Indemnitors shall not be liable for any Losses relating to Taxes, Tax positions or Tax attributes in clauses taxable periods (for portions thereof) through (h) of Section 3.15 (but only to beginning after the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregateClosing Date.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, indemnification provided for claims under this Agreement in Section 9.02 and Section 9.03 shall be limited by subject to the followingfollowing limitations:
(a) If the Closing Seller shall not have occurred, recovery of be liable to the Buyer Indemnitees for indemnification under Section 9.02(a)(i) until the aggregate amount of all Losses in respect of indemnification under exceeds $25,000 (the “Basket”), in which event Seller shall only pay or be liable for all such Losses over and above the Basket. The aggregate amount of all Losses for which Seller Indemnitees, as the case may be, shall be liable pursuant to Section 8.1 or Section 8.2, as 9.02(a)(i) shall not exceed $5,040,000 (the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever“Cap”).
(b) Two years after Buyer shall not be liable to the Closing Date (orSeller Indemnitees for indemnification under Section 9.03(a)(i) until the aggregate amount of all Losses in respect of indemnification under Section 9.03(a)(i) exceeds the Basket, in which event Buyer shall only pay or be liable for all such Losses over and above the case Basket. The aggregate amount of a claim all Losses for breach of which Buyer shall be liable pursuant to Section 3.15, three years after 9.03(a)(i) shall not exceed the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such dateCap.
(c) Two years In no event will any Party be entitled to recover or make a claim for any amounts in respect of, and in no event will “Losses” be deemed to include consequential, exemplary or punitive damages, lost profits or revenues, business interruption, diminution in value and no “multiple of earnings” or “multiple of cash flow” or similar valuation methodology will be used in calculating the amount of any Losses, except if damages are assessed against a Party using such methodology in connection with a Third Party Claim. In the event Buyer proceeds with the Closing despite ▇▇▇▇▇ ▇. ▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ obtaining actual knowledge after the Closing Datedate of this Agreement of a circumstance or condition pursuant to Section 6.01(a) of any breach by Seller of any representation, warranty, agreement or covenant contained in this Agreement, and Seller did not have Knowledge of such circumstance or condition prior to the date of this Agreement, then no Buyer and Buyer Parent shall Indemnitee will have no further obligations any claim or recourse against Seller with respect to such breach under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such dateIX.
(d) No Buyer Notwithstanding the foregoing, the limitations set forth in Section 9.04(a), Section 9.04(b) and Section 9.04(c) shall not apply to Losses or Seller Lossesbased upon, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicablearising out of, with respect to or by reason of any matter inaccuracy in or breach of any Fundamental Representations; provided that is covered by insurance, each Party’s obligations to indemnify the extent proceeds of such insurance are paid.
other under this Agreement shall in no event exceed the Purchase Price (i) Anything prior to the contrary herein notwithstanding, the representations and warranties contained any adjustments set forth in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(eAgreement)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount liability results from or arises out of fraud by either Buyer Losses or Seller Lossesor their respective Affiliates or Representatives as finally determined by a court of competent jurisdiction, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees any Excluded Liabilities which shall not be limited in the aggregate subject to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to limitation or reduce the date hereofindemnification available for any other Losses under this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (FreightCar America, Inc.)
Certain Limitations. The liability (i) For each Holder who is an "insider" of SellerAXT ▇▇ who may be deemed to be an Affiliate of AXT, Buyer or Buyer Parent▇▇T ▇▇▇ll keep effective each Demand Registration Statement filed pursuant to SECTION 2(a) and each Piggyback Registration Statement which includes Registrable Securities of a Requesting Holder pursuant to SECTION 2(b) during such periods as directors, as applicableofficers and Affiliates of AXT ▇▇▇ permitted to purchase and sell AXT ▇▇▇mon Stock pursuant to the insi▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇icies of AXT (▇▇bject to the right of AXT ▇▇ suspend use of a prospectus pursuant to SECTION 3(b)) and, for claims under notwithstanding the provisions of
SECTION 3(a) (i) and any other provision of this Agreement to the contrary, shall not be required to keep any such registration statement effective at any other time. By making a registration request or selling any Registrable Securities pursuant to any such registration statement, each such Holder who is an insider or Affiliate of AXT ▇▇▇ees that the right of such Holder to resell Registrable Securities pursuant to any such registration statement hereunder shall be limited suspended, unless otherwise agreed by AXT, ▇▇enever AXT "▇▇siders" (as defined in the following:
AXT ▇▇▇i▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇icy furnished to such Holders and any amendments thereto hereafter furnished to such Holders) are restricted from trading capital stock of AXT (a) If ▇ "RESTRICTED PERIOD"). Unless otherwise specified by AXT ▇▇ written notice to such Holders who are insiders or Affiliates of AXT, ▇▇e term "RESTRICTED PERIOD" shall include the Closing shall not have occurred, recovery period commencing at the opening of trading on the first day of the Buyer Indemnitees or third month of each fiscal quarter of AXT ▇▇▇ expiring at the Seller Indemnitees, as close of trading on the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date second full trading day following release of AXT ▇▇▇ancial results for such fiscal quarter (or, in the case of the fourth quarter of each year, for the fiscal year). If a claim Restricted Period shall commence or shall expire or terminate on any other date, AXT ▇▇▇ll provide advance written notice of such commencement and prompt written notice of such expiration or termination.
(ii) Notwithstanding any other provision of this Agreement, AXT ▇▇▇ll be entitled to postpone the declaration of effectiveness of any Demand Registration Statement filed pursuant to SECTION 2(a) and any Piggyback Registration Statement filed pursuant to SECTION 2(b) for breach a reasonable period of Section 3.15time, three years but not in excess of ninety (90) calendar days after the Closing Datedate the SEC has informed AXT ▇▇▇t the registration statement will not be reviewed or that the SEC has no further comments with regard to the registration statement, andif the chief executive officer of AXT, ▇▇ting in good faith, determines that there exists material nonpublic information about AXT ▇▇▇ch the Board of Directors of AXT ▇▇▇s not wish to disclose in a registration statement which information would otherwise be required by the Securities Act to be disclosed in any Demand Registration Statement filed pursuant to SECTION 2(a) or any Piggyback Registration Statement which includes Registrable Securities of a Holder pursuant to SECTION 2(b).
(iii) With respect to any Demand Registration Statement filed pursuant to SECTION 2(a) and any Piggyback Registration Statement which includes securities of a Requesting Holding pursuant to SECTION 2(b) or any post-effective amendment, when the same has become effective; AXT ▇▇▇ll notify each Holder (i) of any request by the SEC or any other federal or state governmental authority during the period of effectiveness of the registration statement for amendments or supplements to the registration statement or related prospectus or for additional information relating to the registration statement, (ii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings for that purpose, (iii) of the receipt by AXT ▇▇ any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, or (iv) of the happening of any event which makes any statement made in the registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which requires the making of any changes in the registration statement or prospectus so that, in the case of the registration statement, it will not contain an untrue statement of a claim material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the prospectus, it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In such event, AXT ▇▇▇ suspend use of the prospectus on written notice to each Holder, in which case each Holder shall not dispose of Registrable Securities covered by the registration statement or prospectus until copies of a supplemented or amended prospectus are distributed to the Holders or until the Holders are advised in writing by AXT ▇▇▇t the use of the applicable prospectus may be resumed. AXT ▇▇▇ll use its commercially reasonable efforts to ensure that the use of the prospectus may be resumed as soon as practicable. AXT ▇▇▇ll use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the registration statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the securities for breach sale in any jurisdiction, at the earliest practicable moment. AXT ▇▇▇ll, upon the occurrence of Section 3.11, six years after the Closing Dateany event contemplated by clause (iv), Seller shall have no further obligations under this Article 8, this Agreement prepare a supplement or otherwise, except for Buyer Losses with respect post-effective amendment to which the Buyer Indemnitees have given Seller written notice prior registration statement or a supplement to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement related prospectus or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer any document incorporated therein by reference or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Lossesfile any other required document so that, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, thereafter delivered to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average purchasers of the closing prices reported on Registrable Securities being sold thereunder, such prospectus will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the Nasdaq National Market for Buyer Parent Common Stock for statements therein, in light of the twenty trading days (whether or circumstances under which they were made, not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofmisleading.
Appears in 1 contract
Sources: Registration Rights Agreement (American Xtal Technology)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under (i) Notwithstanding anything to the contrary contained in this Agreement shall be limited by the following:
Agreement: (aA) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any specialshall Seller be required to pay the Seller Termination Fee on more than one occasion; (B) in no event shall Seller be entitled to receive the Escrow Amount on more than one occasion; and (C) payment of the Additional Note Amount and the 15% Note Amount shall be conditioned upon and subject to receipt by Seller of the 15% Note and the Additional Draw Note, indirecteach with full title and guarantee free from all Liens (thereon and thereunder, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Dateother than Permitted Liens thereon), for transfer by Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except to HNR for Buyer Losses with respect to which cancellation in partial satisfaction of the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregateHNR Intercompany Note.
(ii) Anything Notwithstanding anything to the contrary herein notwithstandingcontained in this Agreement, but subject to Section 10.9 (which shall not be limited by this Section 8.3(c)(ii)) Buyer’s right to receive (A) payment from Seller of the Seller Termination Fee pursuant to Section 8.3(a), (B) payment of the 15% Note Amount and the Additional Draw Note Amount pursuant to Section 8.3(a)(i) and Section 8.3(a)(ii) and (C) waiver of any and all rights of HNR and Seller under the Letter of Credit or any Replacement Letter of Credit pursuant to Section 8.3(c)(i), shall, respectively, constitute the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of Buyer and its Affiliates or any other Person against Seller and its Subsidiaries and any of their respective former, current or future, direct or indirect equityholders, general or limited partners, stockholders, members, managers, controlling persons, directors, officers, employees, agents, Affiliates or Representatives, or any of their respective successors or assigns or other representative of any of the foregoing, (collectively, the representations “Seller Related Parties”) in connection with the termination of this Agreement or any Losses or liabilities in connection with this Agreement or the Related Agreements, and warranties contained in clauses upon payment and waiver, as applicable, of such amounts, none of the Seller Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Related Agreements or the Sale of Subject Shares (f) through (h) of Section 3.15 (but only except that, to the extent not subject any failure to clause (i) consummate the Sale of Subject Shares resulted, directly or indirectly, from an Intentional Breach of this Agreement by Seller or HNR or such Intentional Breach by Seller or HNR shall cause the Closing not to occur, Buyer shall be entitled to the payment of the Seller Termination Fee (and, if applicable, the 15% Note Amount and the Additional Draw Note Amount pursuant to Section 8.3(e8.3(a)(i)) shall be deemed and to be breached only any Losses, to the extent that any proven, in respect of such breaches result in Buyer Losses in excess Intentional Breach, as reduced by the amount of Cdn$30,000 in the aggregate and then only Seller Termination Fee paid to the extent such Buyer Losses exceed Cdn$30,000 in the aggregateBuyer).
(iii) No claim Notwithstanding anything to the contrary contained in this Agreement, Seller’s right to receive the Escrow Amount via a draw on the Letter of Credit or claims any Replacement Letter of Credit pursuant to Section 8.3(a) and Section 8.3(b) shall be asserted by a constitute the sole and exclusive remedy of HNR, Seller and their Affiliates or any other Person against Buyer Indemnitee and its Subsidiaries and any of their respective former, current or a Seller Indemniteefuture, direct or indirect equityholders, general or limited partners, stockholders, members, managers, controlling persons, directors, officers, employees, agents, Affiliates or Representatives, or any of their respective successors or assigns or other representative of any of the foregoing, (collectively, the “Buyer Related Parties”) in connection with the termination of this Agreement or any Losses or liabilities in connection with this Agreement or the Related Agreements, and upon payment and waiver, as applicable, of such amounts, none of the Buyer Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Related Agreements or the Sale of Subject Shares (it being understood that nothing in this Section 8.3(c)(iii) shall restrict or limit in any way HNR’s or Seller’s right to specifically enforce the Surviving Provisions pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 Section 10.9 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregateevent that this Agreement is terminated).
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other Other than with respect to Section 8.1(dthe Retained Claims, all Legal Proceedings (whether in contract or in tort, in law or in equity, or granted by statute) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate in any manner to (A) this Agreement, the Related Agreements or the Sale of Subject Shares, (B) the negotiation, execution or performance of this Agreement, the Related Agreements (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement or the Related Agreements), (eC) any breach of this Agreement or the Related Agreements and (D) any failure of the Sale of Subject Shares to be consummated, may be made only by or against (and are those solely of) the Persons that are expressly identified as parties hereto and thereto. No other Buyer Related Party shall have any liabilities (whether in contract or in tort, in law or in equity, or granted by statute, or otherwise) for any Legal Proceedings arising under, out of, in connection with or related in any manner to the items in the immediately preceding clauses (A) through (D) except for Legal Proceedings that HNR or Seller may assert: (I) against any Person that is party to, and solely pursuant to the terms of, the Securities Purchase Agreement or any Related Agreement; and (II) against Buyer, solely in accordance with, and pursuant to the terms of, this Agreement (the Legal Proceedings in clauses (I) and (fII) of this Section 8.3(iv), the “Retained Claims”). Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that, including in the case of any breach, whether willful and material, intentional, material, knowing or otherwise, (x) by all in no event will Buyer Indemnitees shall be limited or any other Buyer Related Party have liability for monetary damages whatsoever arising under, out of, in connection with or related in any manner to the items in the preceding clauses (A) through (D) (including monetary damages in lieu of specific performance) in the aggregate to in excess of the Purchase Price Indemnification amount of the Escrow Amount. For purposes , and, accordingly, the Escrow Amount shall be the maximum aggregate liability of this Section 8.3(e)(iiBuyer hereunder and thereunder (and any other Buyer Related Party), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) ; and (y) the product of 1,000,000 multiplied by the average in no event shall HNR, Seller, their Affiliates, their respective stockholders or Representatives or any other Person seek, directly or indirectly, to recover against any of the closing prices reported on Buyer Related Parties, or compel any payment by any of the Nasdaq National Market for Buyer Parent Common Stock for Related Parties of, any damages or other payments whatsoever that are, in aggregate, in excess of the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofEscrow Amount.
Appears in 1 contract
Sources: Share Purchase Agreement (Harvest Natural Resources, Inc.)
Certain Limitations. The (a) Neither ▇▇▇▇▇▇ and the Vendors under Section 11.1(a) nor West Pacific under Section 11.2(a) shall be liable for any individual indemnifiable Loss (or any Losses that together are based on substantially the same facts or circumstances) unless and until the amount thereof exceeds $10,000, in which case they shall be liable for the entire amount of such Loss.
(b) Except in the case of fraud, intentional misrepresentation or willful misconduct vis a vis the other Party, the maximum aggregate liability of Seller, Buyer ▇▇▇▇▇▇ and the Vendors or Buyer Parent, as applicable, for claims under West Pacific pursuant to this Agreement shall be limited by not in any circumstance exceed the following:amount equivalent to 100% of the Share Consideration.
(ac) If To the Closing shall not have occurredfullest extent permitted by law, recovery none of the Buyer Indemnitees ▇▇▇▇▇▇ or the Seller IndemniteesVendors or West Pacific will be liable to the other for any claims, demands or suits for any consequential, special, indirect, exemplary or punitive damages, whether arising in contract or tort (including negligence, whether sole, joint or concurrent or strict liability).
(d) The indemnity amount of any Losses shall be reduced by: (i) any insurance indemnities effectively paid to or recovered by Purchaser’s Indemnified Persons or to Vendors’ Indemnified Persons, as the case may be, pursuant relating to Section 8.1 the respective Losses (less all costs incurred by the respective Person to obtain payment of such insurance); and/or (ii) indemnities, contributions or Section 8.2other similar payments recoverable by Purchaser’s Indemnified Persons or to Vendors’ Indemnified Persons, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds virtue of such insurance are paid.
Losses (the amounts set forth in numbers (i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything being, "Third-Party Recoveries"). The relevant Indemnified Party shall use commercially reasonable efforts to collect any Third-Party Recoveries. In any case where an Indemnified Party receives a Third-Party Recovery following indemnity payment hereunder to such Indemnified Party, then the Indemnified Party shall promptly pay over to the contrary herein notwithstanding, the representations and warranties contained in clauses Indemnifying Party (fx) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Lossessuch Third-Party Recovery or, as the case may beif less, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied amount previously paid by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not Indemnifying Party less any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofapplicable taxes.
Appears in 1 contract
Sources: Business Combination Agreement
Certain Limitations. The liability Holder shall not sell, transfer, pledge, or ------------------- otherwise dispose of, or reduce Holder's interest in or risk relating to, any shares of Seller, Buyer Ascend Common Stock issued to Holder pursuant to the Merger or Buyer Parentupon exercise of any Assumed Options until after such time as Ascend has published (within the meaning of SEC Accounting Series Release No. 135, as applicableamended) financial results covering at least 30 days of combined operations of Ascend and StonyBrook. From and after the publication of such results, for claims under Holder may sell or otherwise dispose of the shares of Ascend Common Stock registered pursuant to this Agreement shall be limited by Agreement, subject to the followingfollowing restrictions:
(ai) If the Closing Holder shall not have occurredoffer, recovery sell, exchange, pledge, transfer or otherwise dispose of or engage in any Sale Equivalent Transaction with respect to, any of the Buyer Indemnitees shares of Ascend Common Stock issued or issuable upon exercise of Holder's Assumed Options unless at such time such transaction shall be permitted pursuant to the Seller Indemniteesprovisions of SEC Rule 145 under the Securities Act (including any applicable limitations on the amount of Ascend Common Stock to be sold as set forth in Rule 145(d)(1) and the provisions of Rule 144 referred to therein), or Holder shall have furnished to Ascend an opinion of counsel, satisfactory to Ascend, to the effect that no registration under the Securities Act would be required in connection with the proposed offer, sale, exchange, pledge, transfer or other disposition or Sale Equivalent Transaction, or a Registration Statement under the Securities Act covering the proposed offer, sale, exchange, pledge, transfer or other disposition or Sale Equivalent Transaction shall be effective under the Securities Act;
(ii) Holder shall not offer or sell any of the shares of Ascend Common Stock issued or issuable upon exercise of Holder's Assumed Options except during such periods as directors, officers and Affiliates of Ascend are permitted to purchase and sell Ascend Common Stock pursuant to the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies of Ascend (the "Window Periods"); and --------------
(iii) during the effective period of the Registration Statement, Holder shall (A) offer for sale under the Registration Statement only those shares of Ascend Common Stock which were issued to Holder upon exercise of the Assumed Options and are registered under the Registration Statement; (B) sell such shares in accordance with and subject to the terms, conditions and covenants set forth in this Agreement and in the Registration Statement; (C) to the extent required by applicable law, cause to be furnished to any purchaser of such shares, and to the broker-dealer, if any, through whom such shares may be offered, a copy of the final prospectus contained in the Registration Statement, as supplemented or amended through the date of the sale (the "Prospectus"); (D) not engage in ---------- any stabilization activity in connection with any Ascend securities other than as permitted under the Exchange Act; and (E) not bid for or purchase any securities of Ascend or any rights to acquire Ascend securities, or attempt to induce any person to purchase any Ascend securities (except for Holder's shares of Ascend Common Stock to be sold to such person by means of the Prospectus) or any rights to acquire Ascend securities other than as permitted under the Exchange Act. The restrictions set forth in subparagraph (ii) of this Section 4(b) shall cease without further action of the parties upon and in the event of the death of Holder, and Ascend shall amend the Registration Statement to the extent (if any) necessary to permit Holder's estate, personal representative(s), devisees and heirs, as the case may be, to resell Holder's remaining shares of Ascend Common Stock pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverthis Registration Statement.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Sources: Registration and Option Stock Trading Agreement (Ascend Communications Inc)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If Notwithstanding anything to the contrary contained this Agreement, the Phase 1 Ancillary Agreements, the Phase 2 Ancillary Agreements or the Ceding Company Disclosure Schedule or any of the Schedules or Exhibits hereto or thereto, each party acknowledges and agrees that neither the Ceding Companies nor any of their Affiliates, on the one hand, nor Buyer or any of its Affiliates, on the other hand, nor any Representative of any of them, makes or has made, and Buyer and the Ceding Companies have not relied on, any inducement or promise except as specifically made in this Agreement or in the Ancillary Agreements or any representation or warranty, oral or written, express or implied, other than as expressly set forth herein. Without limiting the generality of the foregoing, other than as expressly set forth in this Agreement or in the Phase 1 Ancillary Agreements or Phase 2 Ancillary Agreements, no Person has made any representation or warranty to any other Person with respect to the Reinsured Policies or any other matter, including with respect to (i) merchantability, suitability or fitness for any particular purpose, (ii) with respect to any business operations of the Ceding Companies or their Affiliates other than the Reinsured Policies, (iii) the reinsurance of the Reinsured Policies by Buyer after the Phase 2 Closing, (iv) the probable success or profitability of the Reinsured Policies after the Phase 2 Closing or (v) any information, documents or material made available to Buyer, its Affiliates or their respective Representatives in any “data rooms,” information memoranda, management presentations, functional “break-out” discussions or in any other form or forum in connection with the transactions contemplated by this Agreement, including any estimation, valuation, appraisal, projection or forecast with respect to the Reinsured Policies. With respect to any such estimation, valuation, appraisal, projection or forecast, Buyer acknowledges that: (i) there are uncertainties inherent in attempting to make such estimations, valuations, appraisals, projections and forecasts; (ii) it is familiar with such uncertainties; (iii) it is not acting and has not acted in reliance on any such estimation valuation, appraisal, projection or forecast delivered by or on behalf of any Ceding Company to Buyer; (iv) such estimations, valuations, appraisals, projections and forecasts are not and shall not be deemed to be representations or warranties of any Ceding Company or any of its Affiliates and (v) it shall have occurredno claim against any Person with respect to any such valuation, recovery of the Buyer Indemnitees appraisal, projection or the Seller Indemnitees, as forecast other than in the case may be, pursuant to Section 8.1 of Fraud or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses willful and shall in no event include any special, indirect, incidental or consequential damages whatsoevermaterial breach.
(b) Two years after Notwithstanding anything in this Agreement to the Closing Date (orcontrary, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have Ceding Companies make no further obligations express or implied representation or warranty hereby or otherwise under this Article 8Agreement as to the future experience, this Agreement success or otherwiseprofitability of the Reinsured Policies, except for Buyer Losses with respect whether or not conducted in a manner similar to the manner in which the Buyer Indemnitees have given Seller written notice Reinsured Policies business was conducted prior to the Phase 1 Closing or the Phase 2 Closing, as applicable, that the reserves for the Reinsured Policies or the assets supporting such datereserves have been or will be adequate or sufficient for the purposes for which they were established or that any reinsurance recoverable taken into account in determining the amount of such reserves will actually be collectible.
(c) Two years after Buyer further acknowledges and agrees that it (i) has made its own inquiry and investigation into and, based thereon, has formed an independent judgment concerning the Closing DateReinsured Policies, (ii) has been provided adequate access to such information as it has requested, (iii) has had such time as it deems necessary and appropriate fully and completely to review and analyze such information, documents and other materials and (iv) has been provided an opportunity to ask questions of each Ceding Company and its Affiliates with respect to such information, documents and other materials. Buyer further acknowledges and Buyer Parent shall agrees that neither the Ceding Companies nor any of their Affiliates have no further obligations under this Article 8made any representations or warranties, express or implied, as to the accuracy or completeness of information, documents and other materials other than the representations and warranties expressly set forth in this Agreement or otherwisein any of the Phase 1 Ancillary Agreements or Phase 2 Ancillary Agreements. The Ceding Companies expressly disclaim, except for Seller Losses with respect and Buyer expressly disclaims any reliance on, and shall cause its Affiliates, and any of its or its Affiliates respective Representatives to which expressly disclaim any reliance on, any and all representations and warranties, whether express or implied, other than those contained in this Agreement, the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such datePhase 1 Ancillary Agreements and the Phase 2 Ancillary Agreements.
(d) No Each Ceding Company acknowledges, understands and agrees that no representations or warranties are made by Buyer Losses or Seller Losses, any of its Affiliates or Representatives except as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, and to the extent proceeds expressly covered by a representation or warranty contained in Article IV or in the Ancillary Agreements. Buyer expressly disclaims, and each Ceding Company expressly disclaims any reliance on, and shall cause its Affiliates, and any of such insurance are paid.
(i) Anything its or its Affiliates respective Representatives to the contrary herein notwithstandingexpressly disclaim any reliance on, the any and all representations and warranties warranties, whether express or implied, other than those contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 Article IV or in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregatePhase 1 Ancillary Agreements or Phase 2 Ancillary Agreements.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If Notwithstanding anything in this Agreement to the Closing contrary, neither party shall not have occurredindemnify or otherwise be liable to the other party with respect to any claim for any breach of a representation or warranty, recovery or for the breach of any covenant contained in this Agreement, unless notice of the Buyer Indemnitees or claim is given within the Seller Indemnitees, as the case may be, pursuant to relevant survival period specified in Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever10.1.
(b) Two years after the Closing Date (or, Notwithstanding anything in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds contrary, but except as otherwise provided in this subsection (b) and Schedule 10.5, Sellers shall not be liable to Buyer in respect of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only any indemnification hereunder except to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in (i) the aggregate amount of losses of Buyer exceeds One Million Dollars ($1,000,000) (the "Threshold Amount") (and then only to the extent such losses exceed the excess of Five Hundred Thousand Dollars ($500,000)) over an amount (not in excess of $100,000) which Sellers are not required to expend in environmental remediation as a result of the Environmental Threshold Amount (such excess being the "Excess Amount") and (ii) the aggregate amount of losses of Buyer Losses exceed Cdn$50,000 is less than the excess of Fifty Million Dollars) ($50,000,000) over any amounts expended by Buyer pursuant to Section 6.15, or with respect to which Buyer receives a proration in its favor under Section 6.15 (such excess being the aggregate"Indemnity Cap"); provided, the foregoing shall not be applicable to any amounts owed in connection with the Purchase Price or the proration adjustment thereof. In determining whether Sellers shall be obligated to indemnify Buyer under this Section 10, once the Threshold Amount has been satisfied, each representation and warranty and each covenant contained in this Agreement for which indemnity may be sought hereunder shall be read solely for purposes of determining whether a breach of such representation, warranty or covenant has occurred without regard to materiality (including Material Adverse Effect) qualifications that may be contained therein.
(iic) Anything Notwithstanding any other provision of this Agreement to the contrary herein notwithstandingcontrary, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only no event shall a party be entitled to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any indemnification for such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim party's consequential or claims shall be asserted by a Buyer Indemnitee or a Seller Indemniteepunitive damages, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average regardless of the closing prices reported on theory of recovery. Each party hereto agrees to use reasonable efforts to mitigate any losses which form the Nasdaq National Market basis for Buyer Parent Common Stock any claim for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofindemnification hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, indemnification provided for claims under this Agreement in Section 13.01 shall be limited by subject to the followingfollowing limitations:
(a) If the Closing shall not have occurredExcept as expressly set forth in this Section 13.03(a), recovery Seller’s liability for any Breach of the Buyer Indemnitees any representation or warranty in this Agreement (other than Fundamental Representations) or in any document executed by Seller (or the Seller Indemnitees, as the case may be, on behalf of Seller) pursuant to Section 8.1 this Agreement, or Section 8.2in any other instruments delivered at Closing shall, as subject to the case may belimitations of survival set forth herein, shall be limited to actual out-of-pocket expenses claims in excess of One Hundred Fifty Thousand Dollars ($150,000.00) (the “Basket Amount”) in the aggregate, with respect to all claims, and after the Basket Amount has been reached, Purchaser shall in no event include be entitled to make a claim for indemnification for all claims with respect to the Breach of any special, indirect, incidental representations or consequential damages whatsoeverwarranties back to dollar zero.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses Except with respect to the Fundamental Representations, the aggregate amount of all Losses for which the Buyer Indemnitees have given Seller written notice prior shall be liable pursuant to such dateSection 13.01 shall not exceed 10% of the Purchase Price. The aggregate amount of all Losses for which the Seller shall be liable purchase to Section 13.01 in connection with the Fundamental Representations shall not exceed the Purchase Price.
(c) Two years Payments by the Seller pursuant to Section 13.01 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be received by the Closing DatePurchaser (or the Company) in respect of any such claim. The Purchaser shall use its commercially reasonable efforts to recover under insurance policies or indemnity, Buyer and Buyer Parent shall have no further obligations contribution or other similar agreements for any Losses prior to seeking indemnification under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such dateAgreement.
(d) No Buyer Losses or Payments by the Seller Losses, as the case may be, pursuant to Section 13.01 in respect of any Loss shall be asserted reduced by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect an amount equal to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed any Tax benefit realized or reasonably expected to be breached only to realized as a result of such Loss by the extent that Purchaser and (ii) any reserves or accruals on the books of the Company as of the Closing in respect of such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate matter if and then only to the extent such Buyer Losses exceed Cdn$50,000 reserves or accruals were reflected in the aggregateClosing Statement or the Financial Statements.
(iie) Anything In no event shall the Seller be liable to the contrary herein notwithstandingPurchaser for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the representations and warranties contained in clauses breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple.
(f) through (h) The Purchaser shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of Section 3.15 (but any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent not subject necessary to clause (i) of this Section 8.3(e)) shall be deemed remedy the breach that gives rise to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregateLoss.
(iiig) No claim or claims The Seller shall not be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of liable under this Article 8, unless the amount XIII for any Losses based upon or arising out of Buyer Losses any inaccuracy in or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount breach of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether representations or not any trades warranties of Buyer Parent Common Stock occur on any Seller contained in this Agreement if Purchaser had knowledge of such day) inaccuracy or breach prior to the date hereofClosing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Dream Finders Homes, Inc.)
Certain Limitations. The liability party making a claim under this Section 5.6 is referred to as the "Indemnified Party", and the party against whom such claims are asserted under this Section 5.6 is referred to as the "Indemnifying Party". The indemnification provided for in Section 5.6(b) and (c) shall be subject to the following limitations, except with respect to Claims arising from or in connection with (i) a breach or inaccuracy in a Fundamental Representations, (iii) Open Audit Matters, or new audit matters that arise in the future, including without limitation, any NAL, (iii) a breach of any covenant or agreement relating to taxes of the Company or Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:(iv) Disabling Conduct (such Claims being “Unlimited Claims”):
(ai) If the Closing The Indemnifying Party shall not have occurred, recovery of be liable to the Buyer Indemnitees Indemnified Party for indemnification under Section 5.6(b) or the Seller Indemnitees(c), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 5.6(a) or (b) exceeds Twenty Thousand Dollars (the "Deductible"), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of the Deductible.
(ii) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 8.1 5.6(b) or Section 8.2, (c) as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after not exceed the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregatePurchase Price.
(iii) No claim or claims Payments by an Indemnifying Party in respect of any Loss shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant limited to the provisions of this Article 8, unless the amount of Buyer any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Indemnified Party (or the Company) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only prior to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregateseeking indemnification under this Agreement.
(iv) The aggregate amount of Buyer Losses recoverable Except with respect to an award pursuant to the provisions Third-Party Claim, an Indemnifying Party shall not be liable to any Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Article 8 Agreement, or diminution of value or any damages based on any type of multiple.
(other than with respect v) Each Indemnified Party shall take, and cause its Affiliates to Section 8.1(d)take, (e) and (f)) all commercially reasonable steps required by all Buyer Indemnitees shall applicable law to mitigate any Loss upon becoming aware of any event or circumstance that would be limited in the aggregate reasonably expected to, or does, give rise thereto, including incurring costs only to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean minimum extent necessary to remedy the sum of (x) Cdn$13,062,741 (plus or minus any adjustment breach that gives rise to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofLoss.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (KonaTel, Inc.)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, indemnification provided for claims under this Agreement in Section 8.02 and Section 8.03 shall be limited by subject to the followingfollowing limitations:
(a) If Onewire and the Closing Onewire Indemnitors shall not have occurred, recovery be liable to the Recruiter Indemnitees for indemnification under Section 8.02 until the aggregate amount of all Losses in respect of the Buyer Recruiter Indemnitees are entitled to indemnification under Section 8.02 exceeds $50,000 (based on the Share Consideration Price Per Share) (the “Basket”), in which event Onewire and the Onewire Indemnitors shall be required to forfeit the Holdover Shares for all Losses as if there was no Basket.
(b) Notwithstanding anything herein to contrary, except in the case of Fraud, the liability of Onewire and the Onewire Indemnitors shall be limited to the Holdback Shares issued under this Agreement or transferred to the Seller IndemniteesOnewire Indemnitors.
(c) Each Indemnified Party shall act promptly to avoid or mitigate any Losses which it or any other Indemnified Party may suffer in consequence of any fact, matter or circumstance giving rise to a claim for indemnification under this Agreement or likely to give rise to a claim for indemnification under this Agreement and no Indemnified Party shall be entitled to recover under this Agreement to the extent of any Losses that could have been avoided but for the Indemnified Party’s failure to avoid or mitigate such Losses.
(d) Notwithstanding anything herein to the contrary, the representations, warranties and covenants of the Indemnifying Parties, and the Indemnified Party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnified Party or by reason of the fact that the Indemnified Party knew or should have known that any such representation or warranty is, was or might be inaccurate or by reason of the Indemnified Party’s waiver of any condition set forth in Article VII, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Recruiter.com Group, Inc.)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If Notwithstanding anything in this Agreement to the Closing contrary, no Indemnified Party shall not have occurredbe entitled to receive any amount in respect of any indemnification claims under Section 8.02(a), recovery of the Buyer Indemnitees or the Seller IndemniteesSection 8.03(a), as the case may be, unless and until the aggregate of all Losses incurred or suffered by such Indemnified Party exceeds Fifty Thousand and No/100 Dollars ($50,000.00) (the “Basket”), in which event the Indemnified Party shall be entitled to recover for all Losses from the first dollar of such Loss. The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 8.1 8.02(a) or Section 8.28.03(a), as the case may be, shall not exceed Four Million and No/100 Dollars ($4,000,000) (the “Cap”), provided, however, that notwithstanding the foregoing, neither the Basket nor the Cap shall be limited applied to any claim or recovery of such Losses related to any violation of, non-fulfillment of, non-compliance with, or any breach of, any representation or warranty contained in the Fundamental Representations, or any claim arising from intentional and actual out-of-pocket expenses fraud or criminal activity on the part of a party hereto in connection with the transactions contemplated by this Agreement. For purposes of determining the amount of Losses pursuant to this Article VIII, the representations and warranties of any party shall in no event include not be deemed qualified by any special, indirect, incidental references to materiality or consequential damages whatsoeverto Material Adverse Effect.
(b) Two years Payments by an Indemnifying Party pursuant to this Article in respect of any Losses shall be limited to the amount of any Liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received by the Closing Date (orIndemnified Party in respect of any such claim, less any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and any related increases in the case of a claim insurance premiums or other chargebacks. The Indemnified Party shall use all commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations any Losses prior to seeking indemnification under this Article 8Agreement. For purposes of the foregoing sentence, this Agreement “commercially reasonable efforts” shall not include the filing of any lawsuit, arbitration, or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such dateother similar action.
(c) Two years after In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the Closing Datebreach or alleged breach of this Agreement, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or diminution of value or any damages based on any type of multiple (whether used for calculating the Purchase Price or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date).
(d) No Buyer Prior to seeking recovery against Seller or any Principal Stockholder for any Losses under Section 8.02, Buyers shall make such claim against the R&W Insurance Policy; if such claim is not paid in full by the R&W Insurance Policy for any reason (including because of any retention, exclusion or Seller Lossespolicy limit applicable to such R&W Insurance Policy), as then Buyers may seek recovery for such remaining Losses against the case may beEscrow Amount, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, subject to the extent proceeds of limitations set forth in this Article VIII, then if such insurance are paid.
(i) Anything claim is still not paid in full by the R&W Insurance Policy and/or the Escrow Amount, Buyer shall have the right to make such claim against the Principal Stockholders and the Seller, subject to the contrary herein notwithstanding, the representations and warranties contained limitations set forth in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregateVIII.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Certain Limitations. The liability of Seller, Buyer any of Seller Parties or Buyer ParentBuyer, as applicable, for indemnification claims under this Agreement shall be limited by the following:
(a) The obligations to indemnify and hold harmless a Party in respect of a breach of representation, warranty or covenant shall terminate on the applicable survival date as set forth in Section 10.1, unless, with respect to such representation, warranty or covenant, an Indemnitee has made a proper claim for indemnification pursuant to this Section 10 prior to such survival date. If an Indemnitee has made a proper claim for indemnification pursuant to this Section 10 prior to such survival date, then such claim will not be extinguished by the Closing shall not have occurred, recovery passage of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to deadlines set forth in Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever10.1.
(b) Two years after In no event shall the Closing Date aggregate liability of Seller Parties pursuant to Section 10.2(i) exceed an aggregate amount equal to Five Hundred Thousand Dollars (or$500,000). In no event shall Buyer assert a Claim under Section 10.2(i) (other than in respect of a Fundamental Representation) unless and until all Claims made under Section 10.2(i) exceed an aggregate of Thirty-Five Thousand Dollars ($35,000) at which point Seller Parties will be obligated to indemnify Buyer Indemnitees from and against the amount of the Losses exceeding Thirty-Five Thousand Dollars ($35,000). For purposes of determining the amount of any Losses related to any breach of any representation or warranty, no effect shall be given to any “Material Adverse Effect” or other materiality qualification in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement relevant representation or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such datewarranty.
(c) Two years after The representations, warranties and covenants of Seller Parties, and the Closing Date, rights and remedies that may be exercised by Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may beIndemnitees, shall not be asserted limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or knowledge of, any of Buyer Indemnitee Indemnitees or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything their representatives. Notwithstanding anything to the contrary herein notwithstandingin this Agreement, nothing in this Section 10 shall limit the liability of any Party for fraud or intentional misrepresentation related to the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregatethis Agreement.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Certain Limitations. The liability Notwithstanding anything in paragraphs (a) and (b) above:
(i) in the case of SellerEurodollar Rate Advances and Alternate Currency Swing Line Advances each Borrowing shall be in an aggregate amount of not less than $1,000,000 or greater multiples of $100,000;
(ii) in the case of Adjusted Base Rate Advances each Borrowing shall be in an aggregate amount of not less than $500,000 or greater multiples of $100,000;
(iii) except for Borrowings for the acquisition of Permitted New Investments by the Borrower or its Subsidiary, Buyer the Borrower may not request Borrowings on more than three (3) days in any calendar month;
(iv) at no time shall there be more than five (5) Interest Periods applicable to outstanding Eurodollar Rate AdvanceS or Buyer Parenttwo (2) Interest Periods applicable to outstanding Alternate Currency Swing Line Advances;
(v) the Borrower may not select Fixed Rate Advances for any Borrowing to be made, Converted or continued if a Default has occurred and is continuing;
(vi) if any Lender shall, at any time prior to the making of any requested Borrowing comprised of Fixed Rate Advances, notify the Administrative Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other governmental authority asserts that it is unlawful, for such Lender or its Applicable Lending Office to perform its obligations under this Agreement to make Fixed Rate Advances or to fund or maintain Fixed Rate Advances, then such Lender's Revolving Share or Term Share, as applicable, for claims under this Agreement of such Borrowing shall be limited by made as an Adjusted Base Rate Advance, PROVIDED that such Adjusted Base Rate Advance shall be considered part of the following:same Borrowing and interest on such Adjusted Base Rate Advance shall be due and payable at the same time that interest on the Fixed Rate Advances comprising the remainder of such Borrowing shall be due and payable; and such Lender agrees to use commercially reasonable efforts (consistent with its internal policies and legal and regulatory restrictions) to designate a different Applicable Lending Office if the making of such designation would avoid the effect of this paragraph and would not, in the reasonable judgment of such Lender, be otherwise materially disadvantageous to such Lender;
(avii) If if the Closing shall not have occurredAdministrative Agent is unable to determine the Applicable Fixed Rate for Fixed Rate Advances comprising any requested Borrowing, recovery the right of the Buyer Indemnitees Borrower to select Fixed Rate Advances for such Borrowing or for any subsequent Borrowing shall be suspended until the Seller IndemniteesAdministrative Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be an Adjusted Base Rate Advance;
(viii) if the Required Lenders shall, at least one Business Day before the date of any requested Borrowing, notify the Administrative Agent that the Applicable Fixed Rate for Fixed Rate Advances comprising such Borrowing will not adequately reflect the cost to such Lenders of making or funding their respective Fixed Rate Advances, as the case may be, pursuant for such Borrowing, the right of the Borrower to Section 8.1 select Fixed Rate Advances for such Borrowing or Section 8.2, as the case may be, for any subsequent Borrowing shall be limited suspended until the Administrative Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be an Adjusted Base Rate Advance; and
(ix) if the Borrower shall fail to actual out-of-pocket expenses select the duration or continuation of any Interest Period for any Fixed Rate Advances in accordance with the provisions contained in the definition of "Interest Period" in Section 1.01 and shall in no event include any special, indirect, incidental paragraph (a) or consequential damages whatsoever.
(b) Two years after above, the Closing Date (Administrative Agent will forthwith so notify the Borrower and the Lenders and such Advances will be made available to the Borrower on the date of such Borrowing as Adjusted Base Rate Advances or, in the case of a claim for breach of Section 3.15if an existing Advance, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such dateConverted into Adjusted Base Rate Advances.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Interstate Hotels & Resorts Inc)
Certain Limitations. The liability of Seller(i) Notwithstanding anything to the contrary in this Termination Agreement, Buyer an Indemnifying Party is not obligated to indemnify, defend or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include hold harmless an Indemnified Party against any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, Third Party claims arising out of or resulting from an Indemnified Party’s: (i) willful misconduct or grossly negligent acts or omissions; or (ii) failure to the extent proceeds materially comply with any of such insurance are paidits obligations set forth in this Termination Agreement.
(iii) Anything to The aggregate liability of BDSI under Section 13(b)(i)(c) in respect of inaccuracies in, or breaches of, representations and warranties made by BDSI, and (ii) the contrary herein notwithstandingaggregate liability of Endo under Section 13(b)(ii)(b) in respect of inaccuracies in, or breaches of, representations and warranties made by Endo, other than such representations and warranties of Endo made in Sections 10(b)(i) and 10(b)(vi), in each case, shall not exceed $*** (the “Cap”). The aggregate liability of Endo under Section 13(b)(ii)(b) in respect of inaccuracies in, or breaches of, the representations and warranties contained of Endo made in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred10(b)(i) shall be deemed to be breached only to not exceed the extent that any such Purchase Price. The aggregate liability of Endo under Section 13(b)(ii)(b) in respect of inaccuracies in, or breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstandingof, the representations and warranties contained of Endo made in clauses (fSection 10(b)(vi)(B) through (hshall not exceed an amount equal to the Asset Purchase Price less the Equipment Book Value. The aggregate liability of Endo under Section 13(b)(ii)(b) with respect to any breaches of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)10(b)(vi)(A) shall be deemed not exceed any amounts actually recovered from Third Parties in connection therewith; provided, however, that Endo shall assign the right to be breached only seek damages for such liability from the applicable Third Party to BDSI or, if such right is not assigned, use commercially reasonable efforts to seek and obtain such damages for such liability from the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregateapplicable Third Party.
(iii) No claim or claims Party shall be asserted liable under this Section 13 for any Losses resulting from or relating to any inaccuracy in or breach of any representation or warranty in this Termination Agreement or the Agreement if the Party seeking indemnification for such Losses had knowledge of such inaccuracy or breach before the Closing, except with respect to any inaccuracy in or breach of the representations and warranties made by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 Endo in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregateSection 10(b)(i).
(iv) The aggregate amount of Buyer Losses recoverable pursuant Notwithstanding anything to the provisions contrary, none of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited the limitations set forth in the aggregate preceding subsections (ii) or (iii) shall apply to the Purchase Price Indemnification Amount. For purposes any liabilities resulting from a Party’s or any of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus its Affiliates’ fraud or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofintentional misrepresentation.
Appears in 1 contract
Sources: Termination Agreement (Biodelivery Sciences International Inc)
Certain Limitations. The liability of Seller, Buyer indemnification provided for in Section 6.2 or Buyer Parent, as applicable, for claims under this Agreement Section 6.3 shall be limited by subject to the followingfollowing limitations:
(a) If Notwithstanding anything to the contrary contained in this Agreement, neither Seller Indemnitors nor Purchaser shall have any indemnification obligation with respect to any claim covered by the indemnities under Section 6.2 or Section 6.3, respectively, unless the indemnifying party has been notified in writing of such claim prior to eighteen (18) months after the Closing shall not have occurredDate, recovery other than claims against Seller Indemnitors under (i) Section 6.2(a) regarding a breach or inaccuracy of Section 3.6 (Custodial Accounts), (ii) Section 6.2(c) regarding fraud on the part of any of the Buyer Indemnitees Seller Indemnitors, or (iii) Section 6.2(j) regarding Taxes, each of which shall survive for the Seller Indemnitees, as period of the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverapplicable statute of limitations plus ninety (90) days.
(b) Two years Seller Indemnitors shall not be liable to the Purchaser Indemnitees under this Agreement unless and until the aggregate amount of Losses in respect of indemnification under Section 6.2 exceeds Twenty-Five Thousand and 00/100 Dollars ($25,000.00) (the “Seller Basket Amount”) after which Seller Indemnitors shall be liable only for such Losses in excess of the Closing Date Basket Amount; provided, however, the Seller Basket Amount shall not apply to any Loss which results from, arises out of or relates to (or, in the case of i) a claim for breach of or inaccuracy in any of the Seller Fundamental Representations or Section 3.153.4 (Financial Statements), three years after (ii) fraud by any of the Closing DateSeller Indemnitors, and, in the case of (iii) a claim for breach of any covenant or agreement by Seller under Section 3.117.3, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date(iv) any Excluded Liabilities.
(c) Two years after Notwithstanding anything to the Closing Datecontrary contained in this Agreement, Buyer and Buyer Parent shall have no further the maximum amount of the aggregate liability of Seller Indemnitors for any indemnification obligations under this Article 8Section 6 shall be limited to Five Hundred Thousand Dollars ($500,000) (the “Seller Indemnity Cap”); provided, this Agreement or otherwisehowever, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer Indemnity Cap shall not apply to any Loss which results from, arises out of or Buyer Parent written notice prior relates to such date(i) a breach of or inaccuracy in any of the Seller Fundamental Representations or Section 3.4 (Financial Statements), (ii) fraud by any of the Seller Indemnitors, (iii) a breach of any covenant or agreement by Seller under Section 7.3, or (iv) any Excluded Liabilities.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii)6, "Purchase Price Indemnification Amount" any inaccuracy in or breach of any representation or warranty shall mean the sum be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(e) Any Losses subject to indemnification pursuant to this Article VI will be net of (x) Cdn$13,062,741 (plus insurance proceeds actually received, realized or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied recovered by the average indemnified party in respect of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades subject matter of Buyer Parent Common Stock occur on any such day) prior to the date hereofLosses.
Appears in 1 contract
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by Notwithstanding anything in Section 2 hereof to the followingcontrary:
(a) If the Closing Guarantor shall not have occurred, recovery of be required by this Guaranty to perform any Guarantied Obligation or undertaking if the Buyer Indemnitees performance thereof is illegal or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.impossible under Law;
(b) Two years after the Closing Date (or, Guarantor shall not be required to perform any Guarantied Obligation while the performance of such Guarantied Obligation is being disputed in good faith by the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect Person required to which the Buyer Indemnitees have given Seller written notice prior to perform such date.Guarantied Obligation;
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses Guarantor’s liability hereunder with respect to which any Guarantied Obligation shall not exceed the Seller Indemnitees have given Buyer or Buyer Parent written notice prior liability of the Class B Member with respect to such date.Guarantied Obligation, with reference specifically, but without limitation, to Section 6.2 of the ECCA and Section 11.02 of the LLC Agreement;
(d) No Buyer Losses or Seller Losses, as the case may be, Guarantor shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, have no liability hereunder with respect to any matter action or inaction of the Managing Member or Tax Matters Member or any breach or noncompliance by the Managing Member or Tax Matters Member with any of the Guarantied Obligations, if the Class B Member (or any successor Managing Member or Member that is covered by insurancean Affiliate of the Guarantor) was not, to at the extent proceeds time of such insurance are paid.action, inaction, breach or noncompliance the Managing Member or Tax Matters Member, as applicable;
(e) the Guarantor’s aggregate liability hereunder shall not exceed $72,849,888 less all amounts which have been paid by or on behalf of the Class B Member or the Class B Member (as defined in the LLC Agreement) pursuant to Article 6 of the ECCA or Section 5.04 or Article 11 of the LLC Agreement (the “Aggregate Liability Amount”); provided, that the aggregate liability of the Guarantor shall not exceed the amount calculated pursuant to Section 6(f); and
(f) the Guarantor’s aggregate liability from time to time hereunder, under Article 6 of the ECCA and under Article 11 of the LLC Agreement shall not exceed (i) Anything if the Flip Point has not occurred, an amount the payment of which, if treated as a positive Cash Flow for purposes of Section 5.06(b)(iii) of the LLC Agreement as of the Distribution Date immediately following payment of such amount, would cause the Flip Point to occur on or prior to the contrary herein notwithstandingdate on which the Flip Point is projected to occur in the Base Case Model and (ii) if the Flip Point has occurred, the representations and warranties contained in clauses (a) through (e) zero. For purposes of determining Guarantor’s maximum liability pursuant to this Section 3.15 and clauses (f) through (h) of Section 3.15 (but only 6(f), all payments pursuant to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) this Guaranty shall be deemed to be breached only have been treated as positive Cash Flow for purposes of Section 5.06(b)(iii) of the LLC Agreement. Notwithstanding the foregoing, if (x) any Third Party Action under the ECCA or the LLC Agreement filed against or demanded of the Beneficiary prior to the extent that Flip Point shall not have been finally resolved or (y) any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only Tax contest or dispute applicable to a taxable period prior to the extent such Buyer Losses exceed Cdn$50,000 Flip Point or during which the Flip Point occurs relates to any Company Tax Return applicable to a year prior to the Flip Point or during which the Flip Point occurs and, in either case, shall cause the aggregate.
Flip Point to fail to be achieved (other than as a result of a change in a Fixed Tax Assumption), the Guarantied Obligations under Article 6 of the ECCA and under Article 11 of the LLC Agreement shall not be subject to the limitations described in clause (ii) Anything to until the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregateFlip Point occurs.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Certain Limitations. The liability (a) No claim may be made for breach of Seller, Buyer any representation or Buyer Parent, as applicable, for claims under warranty included in this Agreement shall be limited by the followingand in any other agreement, certificate or instrument delivered pursuant to this Agreement:
(ai) If after the Closing shall not have occurred, recovery expiration of any applicable time period set out in Section 7.1; provided that if any Claim has been asserted in writing by notice from the non-breaching party to the breaching party before the expiration date of the Buyer Indemnitees applicable survival period, but is unresolved at the conclusion of such period, then the rights of indemnification in this Article 7 and the liability for such Claim will continue beyond the expiration of such period until such Claim is resolved; or
(ii) to the extent:
(A) such party has been actually reimbursed for such amount under any other provision of this Agreement; or
(B) such party would be entitled to double recovery even though such claim may be subject to more than one indemnity or have resulted from the breach of more than one of the representations, warranties, agreements and covenants made by such Party; or
(C) such party actually recovers under any insurance policy with respect to any Losses forming the subject matter of the claim, to the extent of the Net Recoveries; or
(D) such liability arises or the Seller Indemniteesamount thereof is increased as a result of a change after the Effective Date in the accounting policies or practices of an Indemnified Party or a change in applicable Laws.
(b) Notwithstanding the foregoing:
(i) Section 7.4(a) will not limit an Indemnifying Party’s obligations and liability for any claim in respect of fraud or fraudulent misrepresentation by such Indemnifying Party; and
(ii) regarding matters under Sections 7.2 or 7.3, as the case may be: (A) no investigations, pursuant inspections or due diligence undertaken by or on behalf of the Indemnified Party; or (B) the fact that the Indemnified Party or any of its Representatives knew or should have known that any representation or warranty is, was or might be inaccurate, will, or will be deemed to, affect, mitigate, modify, waive, diminish the scope of or otherwise affect the Losses available to Section 8.1 the Indemnified Party regarding such matters under Sections 7.2 or Section 8.27.3, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Sources: Arrangement Agreement (Marizyme Inc)
Certain Limitations. The liability It is the explicit intent and understanding of Sellereach of the Parties that no Party nor any of its Affiliates or Representatives is making any representation or warranty whatsoever, Buyer oral or Buyer Parentwritten, as applicableexpress or implied, for claims under this Agreement shall be limited other than those set forth in Articles 3 and 4, and no Party is relying on any statement, representation or warranty, oral or written, express or implied, made by the following:
other Party or such other Party’s Affiliates or Representatives (a) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, including with respect to any matter that is covered by insuranceestimates, projections, forecasts, budgets or other forward-looking information delivered or made available to the extent proceeds of such insurance are paid.
(iBuyer or its Representatives) Anything to the contrary herein notwithstanding, except for the representations and warranties contained set forth in clauses such Articles. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE PARTIES EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION (a) through (e) of Section 3.15 IMPLIED OR OTHERWISE), AT EQUITY, COMMON LAW, BY STATUTE OR OTHERWISE, AS TO CONDITION, MERCHANTABILITY OR SUITABILITY AS TO ANY OF THE ASSETS OF THE GROUP COMPANIES AND, EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT BUYER TAKES THE ASSETS, PLANTS, INVENTORIES, AGREEMENTS, PROCEEDINGS OR EQUIPMENTS OF THE GROUP COMPANIES “AS IS” AND “WHERE IS”. The Parties agree that this is an arm’s-length transaction in which the Parties’ undertakings and clauses (f) through (h) of Section 3.15 (but only obligations are limited to the extent performance of their obligations under this Agreement. Buyer acknowledges that it is a sophisticated investor, that it has undertaken a full investigation of the Group Companies and that it has only a contractual relationship with Seller, based solely on the terms of this Agreement, and that there was a violation is no special relationship of applicable Environmental Laws at trust or reliance between Buyer and Seller. The documents that have been made available to Buyer or its Representatives in the time the event referred Data Room or by e-mail, or delivered to Buyer’s legal counsel on one or more CD-ROMs or other flash drives by 7:00 p.m. (New York time) on August 16, 2018, shall be deemed disclosed and delivered pursuant to this Agreement. Nothing in such clauses (f) through (h) occurred) this Section 11.4 shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess constitute a waiver of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregatefraud.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If Each Party’s aggregate liability for indemnification for the Closing breach of any representation or warranty made in this Agreement or in any Related Document shall not have occurred, recovery exceed an amount equal to fifty (50%) percent of the Buyer Indemnitees or Purchase Price paid by the Seller IndemniteesPurchaser including the amount of Earn Out Payments which the Sellers have earned and otherwise would be entitled to be paid (the “Liability Cap”), as with the case may be, pursuant to exception of Section 8.1 or Section 8.2, as 5.7 (Taxes) where the case may be, shall be Sellers’ liability is limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverthe total Purchase Price.
(b) Two years after the Closing Date The Sellers shall not be liable for Losses under Section 9.3 (orb) unless and until such Losses exceed $200,000 USD, in the case of a claim for breach of aggregate, without taking into account materiality other than under Section 3.15, three years after 5.11 (the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date“Sellers Basket Amount”), it being understood that once the amount of the Loss (or Losses) equals or exceeds the Seller Basket Amount, the Purchaser shall have no further obligations under this Article 8be entitled to be indemnified on a dollar for dollar basis for the full amount of the Loss including the Sellers Basket Amount. For the avoidance of doubt, the Sellers Basket Amount shall not apply to any claims for indemnification other than those pursuant to Section 9.3(b), including the breach or non-fulfillment of any covenant in this Agreement or otherwiseany other breach of this Agreement that is not a breach of the representations and warranties in Article V, except and any claims for Buyer Losses with respect indemnification pursuant to which Section 9.5. No individual claim for indemnification under Section 9.3 (b) shall be valid and assertable unless it is for an amount in excess of $20,000 USD; provided, however, that to the Buyer Indemnitees have given Seller written notice prior extent that individual claims are related to one another, they may be aggregated for the purposes of meeting such date$20,000 threshold.
(c) Two years after The Purchaser shall not be liable for Losses under Section 9.4(b) unless and until such Losses exceed $200,000 in the Closing Dateaggregate (the “Purchaser Basket Amount”), Buyer and Buyer Parent it being understood that once the amount of the Loss (or Losses) equals or exceeds the Purchaser Basket Amount, the Sellers Indemnified Parties shall have no further obligations under this Article 8be entitled to be indemnified on a dollar for dollar basis for the full amount of the Loss, including the Purchaser Basket Amount. For the avoidance of doubt, the Purchaser Basket Amount shall not apply to any claims for indemnification other than those pursuant to Section 9.4(b), including the breach or non-fulfillment of any covenant in this Agreement or otherwise, except for Seller Losses with respect to which any other breach of this Agreement that is not a breach of the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such daterepresentations and warranties in Article VI.
(d) No Buyer Losses or Seller LossesIt is agreed that for the purpose of making a claim for indemnification, the expiration of any one survival period, as the case may beset forth in Section 9.1, of certain representations and warranties, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect not affect the ability to make any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the claim for indemnification hereunder under any other representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) still surviving; provided, however, that no Party shall be deemed entitled to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No make a claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other for indemnification more than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average once on account of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofsame facts and circumstances.
Appears in 1 contract
Certain Limitations. The liability of Seller, (i) In no event shall any Buyer or Buyer Parent, as applicable, Indemnitee be entitled to indemnification for claims under this Agreement shall be limited by the following:
(a) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, any Losses arising from a claim for indemnification pursuant to Section 8.1 10.2a)(i) (A) for any claim or Section 8.2, as series of related claims arising from the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case same set of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses facts with respect to which the Buyer Indemnitees have given Seller written notice prior to such dateaggregate amount of Losses does not exceed $100,000 and (B) unless and until the aggregate amount of all Losses under all claims under Section 10.2a)(i) exceeds one million dollars ($1,000,000) (the “Deductible”), at which ▇▇▇▇ ▇▇▇▇▇▇ shall only be liable for any Losses in excess of the Deductible.
(cii) Two years after In no event shall the Closing Date, Buyer aggregate Liability for indemnification by Seller pursuant to Section 10.2a)(i) exceed in the aggregate sixteen million dollars ($16,000,000) and Buyer Parent in no event shall have no further obligations under this Article 8, the aggregate Liability for indemnification by Seller pursuant to this Agreement exceed the Purchase Price.
(iii) In no event shall any Seller Indemnitee be entitled to indemnification for any Losses arising from a claim for indemnification pursuant to Section 10.2(b)(i) (A) for any claim or otherwise, except for Seller Losses series of related claims arising from the same set of facts with respect to which the Seller Indemnitees have given aggregate amount of Losses does not exceed $100,000 and (B) unless and until the aggregate amount of all Losses under all claims under Section 10.2(b)(i) exceeds the Deductible, at which time Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall only be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to liable for any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregateDeductible.
(iv) The In no event shall the aggregate amount of Liability for indemnification by Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e10.2(b)(i) and (f)) by all Buyer Indemnitees shall be limited exceed in the aggregate sixteen million dollars ($16,000,000) and in no event shall the aggregate Liability for indemnification by Buyer pursuant to this Agreement exceed the Purchase Price.
(v) Notwithstanding the foregoing, the limitations set forth in Section 10.2c)i) to (iv) shall not apply to the Purchase Price Indemnification Amount. For purposes extent that the Indemnified Party’s Losses result from or arise out of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied Fraud by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofIndemnifying Party.
Appears in 1 contract
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If No Ceding Company shall be obligated to indemnify and hold harmless its Indemnitees for any claims or Indemnifiable Losses arising under Section 8.02(a)(i), (i) with respect to any claim (or series of related claims arising from the Closing same underlying facts, events or circumstances), unless such claim (or series of related claims) involves Indemnifiable Losses in excess of [***] (the “Threshold Amount”) (nor shall any claim that does not have occurredexceed the Threshold Amount be applied to or considered for purposes of calculating the amount of Indemnifiable Losses for which such Ceding Company is responsible under clause (ii) below), recovery (ii) unless and until the aggregate amount of all Indemnifiable Losses of the Buyer Indemnitees for such claims or Indemnifiable Losses arising under Section 8.02(a)(i) in the Seller Indemniteesaggregate with respect to all Ceding Companies exceeds [***] (the “Deductible”), as at which point such Ceding Company shall be liable to its Indemnitees for the case may bevalue of the Indemnitee’s claims for such claims or Indemnifiable Losses arising under Section 8.02(a)(i) that is in excess of the Deductible, subject to the limitations set forth in this Article VIII and (iii) the maximum aggregate liability of the Ceding Companies, in the aggregate, to Reinsurer Indemnified Persons for any and all Indemnifiable Losses pursuant to this Agreement for claims pursuant to Section 8.1 or Section 8.2, as the case may be, 8.02(a)(i) shall be limited [***] (the “Cap”). The aggregate amount of all Indemnifiable Losses for which the Ceding Companies in the aggregate shall be liable pursuant to actual Section 8.02(a)(i), (a)(ii), and (a)(iii) shall not exceed [***] (the “Aggregate Cap”).
(b) Reinsurer shall not be obligated to indemnify and hold harmless its Indemnitees for any claims or Indemnifiable Losses arising under Section 8.02(b)(i), (i) with respect to any claim (or series of related claims arising from the same underlying facts, events or circumstances), unless such claim (or series of related claims) involves Indemnifiable Losses in excess of the Threshold Amount (nor shall any claim that does not exceed the Threshold Amount be applied to or considered for purposes of calculating the amount of Indemnifiable Losses for which Reinsurer is responsible under clause (ii) below), (ii) unless and until the aggregate amount of all Indemnifiable Losses of the Indemnitees for such claims or Indemnifiable Losses arising under Section 8.02(b)(i) exceeds the Deductible (the “Reinsurer Deductible”), at which point Reinsurer shall be liable to its Indemnitees for the value of the Indemnitee’s claims for such claims or Indemnifiable Losses arising under Section 8.02(b)(i) that is in excess of the Reinsurer Deductible, subject to the limitations set forth in this Article VIII and (iii) the maximum aggregate liability of Reinsurer to Ceding Company Indemnified Persons for any and all Indemnifiable Losses pursuant to this Agreement for claims pursuant to Section 8.02(b)(i) shall be an amount equal to the Cap. The aggregate amount of all Losses for which Reinsurer shall be liable pursuant to Sections 8.03(b)(i), 8.03(b)(ii) and 8.03(b)(iii) shall not exceed the sum of the Aggregate Cap.
(c) Each Indemnitee shall use commercially reasonable efforts to mitigate all Indemnifiable Losses for which indemnification may be sought hereunder, including by using commercially reasonable efforts to collect the maximum amount recoverable with respect thereto under any insurance or reinsurance coverage or other applicable source of recovery, net of the amount of the costs and expenses incurred by the Indemnitee in procuring such recovery. In the event an Indemnitee fails to use such commercially reasonable efforts, then the Indemnitor shall not be required to indemnify the Indemnitee for that portion of Indemnifiable Losses that could reasonably have been expected to have been avoided if the Indemnitee had used such commercially reasonable efforts.
(d) The amount of any Indemnifiable Losses suffered by an Indemnitee shall be reduced (i) by any amount received by such Indemnitee or its Affiliates with respect thereto under any insurance policy, warranty or indemnity (calculated net of any reasonable and documented out-of-pocket expenses incurred by such Person or its Affiliates in collecting such amount and shall net of the amount of any actual increase in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after such Person's and its Affiliates annual insurance premium directly arising out of the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Datesuch Indemnifiable Loss), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except otherwise from any non-Affiliate alleged to be responsible for Buyer any Indemnifiable Losses (calculated net of any reasonable and documented out-of-pocket expenses incurred by such Person in collecting such amounts) and (ii) the amount of any Tax benefit realizable by such Indemnitee or its Affiliates with respect to which the Buyer Indemnitees have given Seller written notice prior such Indemnifiable Loss. The Indemnitee shall use commercially reasonable efforts to such date.
(c) Two years after the Closing Datecollect any amounts available under insurance policies, Buyer and Buyer Parent shall have no further obligations under this Article 8warranties or indemnities, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicablerecoverable from non-Affiliates, with respect to Indemnifiable Losses incurred by such Indemnitee. If the Indemnitee or its Affiliate receives any amounts under insurance policies, warranties or indemnitees, or from any non-Affiliate alleged to be responsible for any Indemnifiable Losses, in each case in connection with a matter that is covered giving rise to an indemnification payment, then such Indemnitee shall promptly reimburse the Indemnitor for any payment made or expense incurred by insurancesuch Indemnitor in connection with providing such indemnification up to the amount received by the Indemnitee or its Affiliates, in each case net of any deductible, retention, costs or other expenses incurred by the Indemnitee in connection therewith and net of the amount of any increase in such Person's and its Affiliates' annual insurance premium arising out of such Indemnifiable Loss.
(e) Notwithstanding anything to the contrary contained in this Agreement, no Reinsurer Indemnified Person shall be entitled to indemnification with respect to any particular Indemnifiable Loss to the extent proceeds of such insurance are paidthe related liability or obligation is reflected or provided for in the Final Closing Statement.
(if) Anything Any liability for indemnification under this Agreement shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement. For the avoidance of doubt, no party shall be entitled to collect indemnification with respect to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregatesame underlying subject matter more than once.
(iig) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate[***].
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Sources: Master Transaction Agreement (Equitable Holdings, Inc.)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If Notwithstanding the Closing other provisions of this Article VIII, Pfizer shall not have occurredany indemnification obligations for Losses under Section 8.1(a)(iii), recovery (i) for any individual item (or series of related items resulting from the Buyer Indemnitees same event, fact or occurrence) where the Seller IndemniteesLoss relating thereto is less than $75,000 and (ii) in respect of each individual item where the Loss relating thereto is equal to or greater than $75,000, as unless the case may beaggregate amount of all such Losses exceeds $45 million, pursuant to Section 8.1 or Section 8.2, as the case may be, in which event Pfizer shall be limited required to actual out-of-pocket expenses and shall in no event include any specialpay the amount of such Losses which exceeds $45 million, indirect, incidental or consequential damages whatsoever.but only up to a maximum amount of $1 billion. Back to Contents
(b) Two years after Notwithstanding the Closing Date (or, in the case provisions of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8VIII, this Agreement or otherwise, except Pfizer shall not have any indemnification obligations for Buyer Losses under Section 8.1(a)(i) with respect to which Excluded Environmental Liabilities, (i) for any individual item (or series of related items resulting from the Buyer Indemnitees have given Seller written notice prior same event, fact or occurrence) where the Loss relating thereto is less than $50,000 with respect to items falling within subparagraphs (ii), (iii), (iv) and (vi) of the definition of Excluded Environmental Liabilities, (ii) in respect of each individual item (or series of related items resulting from the same event, fact or occurrence) where the Loss relating thereto is equal to or greater than the minimum amount set forth in clause (i), then Pfizer shall be required to pay the amount of such dateLosses from the 1st dollar of Loss, but only after Purchaser has expended, with respect to Excluded Environmental Liabilities that arise under clauses (ii), (iii), (iv) and (vi) of the definition of Excluded Environmental Liabilities, the aggregate amount of $3 million for such Losses (such deductible not being applicable to claims made in respect of Excluded Environmental Liabilities that arise under clauses (i) and (v) of the definition of Excluded Environmental Liabilities) and (iii) with respect to claims made in respect of Excluded Environmental Liabilities that arise under clauses (ii), (iii), (iv) and (vi) of the definition of Excluded Environmental Liabilities, only up to a maximum aggregate amount in respect of all such items of $15 million.
(c) Two years after Notwithstanding the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the other provisions of this Article 8VIII, unless Pfizer shall not have any indemnification obligations for Losses under Section 8.1(a)(i) with respect to Purchaser Known Environmental Liabilities as listed on Schedule 1.1(G) in excess of the amount of Buyer Losses or Seller Lossesfollowing: (i) Item b.1, as the case may be$300,000; (ii) Item b.2, equals at least Cdn$350,000 in the aggregate $30,000; (iii) Item b.3, $150,000; and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d)Item b.4, (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof$100,000.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Cadbury Schweppes Public LTD Co)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims Party making a claim under this Agreement Section 10.3 is referred to as the “Indemnified Party”, and the Party against whom such claims are asserted under this Section 10.3 is referred to as the “Indemnifying Party.” The indemnification provided for in Section 10.1 and Section 10.2 shall be limited by subject to the followingfollowing limitations:
(a) If the Closing Sellers shall not have occurred, recovery of be liable to the Buyer Indemnitees or Indemnified Parties for indemnification under Section 10.1(a) with respect to breaches of representations and warranties until the Seller Indemnitees, as the case may be, aggregate amount of all Losses that would be payable pursuant to Section 8.1 or Section 8.2such claim exceeds one million two hundred seventy-five thousand dollars ($1,275,000) (the “Deductible”), as the case may be, in which event Sellers shall be limited required to actual outpay or be liable for Losses in excess thereof; provided, however, that the aggregate amount of all Losses for which Sellers shall be liable under Section 10.1(a) for breaches of representations and warranties shall not exceed an amount equal to one million two hundred seventy-of-pocket expenses five thousand dollars ($1,275,000) (the “Indemnity Cap”) and, absent Fraud, Buyer shall only have recourse to Sellers for any such breaches up to the Indemnity Cap. Notwithstanding anything to the contrary in this Agreement, the Deductible and Indemnity Cap shall in no event include not affect or otherwise limit any special, indirect, incidental claim made or consequential damages whatsoeveravailable under the R&W Insurance Policy.
(b) Two years after For the Closing Date avoidance of doubt, any Losses suffered by the Buyer Indemnified Parties from any and all Excluded Claims shall not be subject to the Deductible or the Indemnity Cap; provided, notwithstanding anything to the contrary set forth in this Agreement, the aggregate amount that shall be payable by Sellers for Excluded Claims shall in no event exceed ten percent (or, in 10%) of the case of a claim for breach of Section 3.15, three years after Purchase Price less any amounts paid from the Closing Date, Escrow Amount; and, provided further, that in the case of a claim no event shall any Voting Trust certificate holder be liable or responsible for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations indemnification claims under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which in an amount in excess of the Buyer Indemnitees have given Seller written notice prior to portion of the Purchase Price received by such dateVoting Trust certificate holder.
(c) Two years Payments by an Indemnifying Party pursuant to Section 10.1 or Section 10.2 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds (if applicable) and any indemnity, contribution or other similar payment received by the Closing DateIndemnified Party in respect of any such claim (netted against costs or expenses incurred by the Indemnified Party in connection with such recovery), provided that this Section 10.3(c) shall not apply to the R&W Insurance Policy except to the extent that the amount of insurance proceeds received by the Buyer and Buyer Parent (netted against costs or expenses incurred by the Indemnified Party in connection with such recovery) are in excess of the retention amount. The Indemnified Party shall have use its commercially reasonable efforts to recover under any such insurance policies, for any Losses; provided, however no further obligations under this Article 8, this Agreement Indemnified Party shall be required to commence or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer engage in litigation or Buyer Parent written notice prior to such dateinitiate any other Action against any insurance carrier.
(d) No Buyer Losses Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or Seller Lossescircumstance that would be reasonably expected to, as or does, give rise thereto, including incurring costs only to the case may beminimum extent necessary to mitigate the breach that gives rise to such Loss.
(e) The amount of any indemnity provided under this ARTICLE 10, other than indemnity with respect to claims which are not subjected to the Deductible or the Indemnity Cap, shall be asserted reduced (but not below zero) by the amount of any actual net reduction in cash payments for Taxes realized by the Indemnified Parties as a Buyer Indemnitee or a Seller Indemniteeresult of the Losses giving rise to such indemnity claim.
(f) Notwithstanding anything to the contrary in this Agreement, as applicable, with respect to the Sellers shall not have any matter that is covered by insurance, liability for any otherwise indemnifiable Loss to the extent proceeds that the matter giving rise to such Loss had been reserved for in the Company Financial Statements or the Closing Statement or the Buyer Indemnified Parties have been otherwise compensated through an adjustment to the Estimated Purchase Price pursuant to Section 1.4.
(g) For the purposes of determining the amount of any Losses suffered by any Buyer Indemnified Parties, the representations, warranties and covenants of Sellers and the Company set forth in this Agreement shall be considered without regard to any materiality or Material Adverse Effect qualification therein.
(h) Notwithstanding anything to the contrary contained in this Agreement, none of the parties hereto shall have any liability under any provision of this Agreement for any punitive or exemplary damages, any multiple, consequential, special or indirect damages, and any damages for loss of future profits, revenue or income, damages based on any multiple of revenue or income, loss from diminution in value, or loss of business reputation or opportunity or statutory damages relating to the breach, except to the extent such insurance damages are paidactually awarded to a third Person.
(i) Anything In addition to the contrary herein notwithstandingother limitations contained in this Agreement, the representations Sellers obligation for Pre-Closing Taxes shall not include any Taxes (and warranties contained in clauses (arelated Losses) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only arising from or relating to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregateReorganization.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (Tegna Inc)
Certain Limitations. The liability rights of Seller, the Buyer or Buyer Parent, as applicable, for claims Indemnitees and Seller Indemnitees to indemnification under this Agreement Article X shall be limited by the followingas follows:
(a) If No Claim Notice for indemnification may be provided with respect to any Claim for breach of a representation or warranty in this Agreement beyond the Closing shall not have occurred, survival period specified in Section 10.1;
(b) The recovery of Losses by any Buyer Indemnitee pursuant to Section 10.3(b), Section 10.3(c), Section 10.3(d) or Section 10.3(e), together with all Losses recovered by other Buyer Indemnitees under such provisions, shall be limited to an aggregate of $5,000,000;
(c) The recovery of Losses by any Seller Indemnitee pursuant to Section 10.2, together with all Losses recovered by other Seller Indemnitees under such provision, shall be limited to an aggregate of $5,000,000;
(d) No Buyer Indemnitee or Seller Indemnitee shall be entitled to recover Losses pursuant to Section 10.3(b), Section 10.3(c), Section 10.3(d), Section 10.3(e) or Section 10.2, respectively, unless:
(i) with respect to each individual Claim, the Buyer Indemnitees Indemnitees, collectively, or the Seller Indemnitees, collectively, shall have suffered or incurred Losses with respect to the individual Claim or series of related Claims that arise out of substantially the same facts and circumstances for which recovery is sought in excess of $25,000, in which case the full amount of such Losses shall be recoverable, subject to the limitations imposed by the other provisions of this Section 10.4; provided, however, that this clause (i) shall not apply for purposes of determining whether the Deductible shall have been satisfied; and
(ii) the Buyer Indemnitees, collectively, or the Seller Indemnitees, collectively, shall have suffered or incurred aggregate Losses otherwise recoverable under this Article X in an amount in excess of the Deductible, and then recovery shall be permitted only to the extent of such excess. Notwithstanding the foregoing, any claim for indemnification (and the Losses recoverable therefrom) that may be brought under Section 10.3(a) shall not be subject to any limitation specified in this Section 10.4(d).
(e) Notwithstanding anything to the contrary in this Agreement:
(i) For purposes of determining whether a representation or warranty contained herein, other than those set forth in Sections 4.14, 4.19 and 5.3, has been breached for purposes of this Article X and determining the amount of Losses suffered thereby by any Buyer Indemnitee or Seller Indemnitee, as the case may be, pursuant each representation and warranty set forth in this Agreement (other than as aforesaid), and any qualification with respect to Section 8.1 any such representation or Section 8.2, as warranty set forth in the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, Disclosure Letter in the case of representations or warranties by the Members or Bear Cub, shall be read without regard or giving effect to any “material,” “materiality,” “Material Adverse Effect,” and “substantial” qualifications that may be contained in any such representation or warranty; provided, however, that the defined term “Material Contract” and all “material,” “materiality,” “Material Adverse Effect,” and “substantial” qualifications that are contained in any defined term shall be given effect;
(ii) No investigation or knowledge of any Party, whenever undertaken or however obtained, shall limit such Party’s right to indemnification hereunder in any manner; and
(iii) The provisions of this Article X shall apply in such a manner as not to give duplicative effect to any item of adjustment and if there has been an adjustment to the Aggregate Consideration for any Loss, there shall not be any charge against the Deductible and no Indemnitee may claim for a breach of any representation or warranty with respect to any Loss that gave rise to such adjustment in the Aggregate Consideration pursuant to Section 3.152.3 to the extent of the amount of such Loss given effect in such adjustment to the Aggregate Consideration.
(f) Subject to Section 10.4(h), three years after if a Claim for indemnification is asserted with respect to a breach of a Title Representation:
(i) each Indemnifying Member shall be severally liable for 50% of all Losses incurred by the Closing Indemnified Party with respect to such breach and the Indemnified Party shall be entitled to recover from, and shall have personal recourse to and against, each Indemnifying Member for 50% of such Loss; and
(ii) Until the Survival Date, andBear Cub shall be jointly and severally liable with the Indemnifying Members for the full amount of such Loss.
(g) If a Claim for indemnification is asserted by any Buyer Indemnitee under Section 10.3, the Buyer Indemnitee may, except as set forth in the case of a claim for breach of Section 3.11, six years after the Closing Date10.4(h), Seller shall have no further obligations under this Article 8only assert such Claim against, this Agreement or otherwise, except for Buyer and attempt to recover the Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such dateClaim from, Bear Cub.
(ch) Two years after If a Claim for indemnification is asserted by any Buyer Indemnitee under Section 10.3(a) with respect to a breach of a Title Representation, the Closing DateBuyer Indemnitee must first only assert such Claim against, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller attempt to recover the Losses with respect to which such Claim from, Bear Cub. If Bear Cub does not satisfy the Seller Losses associated with any such Claim within 30 days following the day that the Claim is first asserted against Bear Cub, the Buyer Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemniteeentitled to assert and pursue any and all rights to indemnification from Bear Cub and, as applicablein accordance with Section 10.4(f), with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.Indemnifying Members;
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that Notwithstanding any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) other provision of this Agreement, except as provided in Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e10.4(f) and (f)Section 10.4(h) by all the Buyer Indemnitees shall not be limited in the aggregate entitled to the Purchase Price Indemnification Amount. For purposes of recover Losses from or have any other recourse against any Member relating to any claim arising from this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofAgreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Regency Energy Partners LP)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement NaPro shall be limited by obligated to effect Demand Registrations as follows: (i) no more than two (2) Demand Registrations with respect to the following:
Initial Shares, any of which two (a2) If the Closing Demand Registrations that has not been exercised shall not have occurred, recovery lapse as of the Buyer Indemnitees or First Additional Closing Date; and (ii) no more than two (2) Demand Registrations with respect to the Seller Indemnitees, as aggregate of the case may be, pursuant to Section 8.1 or Section 8.2, as Initial Shares and the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years First Additional Shares after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the First Additional Closing Date, and, in any of which two (2) Demand Registrations that has not been exercised shall lapse as of the case of a claim for breach of Section 3.11, six years after the Second Closing Date), Seller shall have ; and (iii) no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses more than two (2) Demand Registrations with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after Shares as of the Second Additional Closing Date, Buyer and Buyer Parent . NaPro shall have be obligated to effect no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses more than three (3) Piggyback Registrations with respect to which all of the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to Shares. A Registration will not count as one of the permitted Registrations under this paragraph 6 until it has become effective. If a Registration has remained effective for the Registration Period, such date.
(d) No Buyer Losses or Seller Losses, as the case may be, Registration shall be asserted by deemed to have been effected regardless of whether any of the Shares are ultimately sold pursuant to the Registration. A Registration that does not become effective after NaPro has filed a Buyer Indemnitee or a Seller Indemnitee, as applicable, registration statement with respect thereto solely by reason of ▇▇▇▇▇▇'▇ refusal to proceed (other than any matter that is covered by insurance, refusal to the extent proceeds of such insurance are paid.
proceed based upon: (i) Anything the advice of its counsel that the registration statement, or the prospectus contained therein, or other documents incorporated by reference therein, contain or contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the contrary herein notwithstanding, statements therein not misleading in the representations and warranties contained light of the circumstances then existing; or (ii) a material adverse change in clauses the condition (a) through (efinancial or other) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in NaPro after such clauses (f) through (h) occurredregistration statement has been filed) shall be deemed to have been effected by NaPro. The Demand Registration and Piggyback Registration rights of ▇▇▇▇▇▇ shall be breached assignable by ▇▇▇▇▇▇ only to the extent that any such breaches result in Buyer Losses in excess wholly owned subsidiaries of Cdn$50,000 in the aggregate and then only ▇▇▇▇▇▇ to the extent such Buyer Losses exceed Cdn$50,000 in the aggregatewhich ▇▇▇▇▇▇ has transferred all of its Shares.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (Napro Biotherapeutics Inc)
Certain Limitations. The liability of Seller, Buyer Vendor or Buyer ParentPurchaser, as applicable, for claims under this Preliminary Agreement shall be limited by the following:
(a) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include At any special, indirect, incidental or consequential damages whatsoever.
(b) Two years time after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Survival Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller (i) Vendor shall have no further obligations under this Article 8, this Agreement or otherwiseXVI for breaches of representations and warranties of Vendor, except for Buyer Losses Damages with respect to which the Buyer Indemnitees have Purchaser Indemnitee has given Seller Vendor written notice prior to such date.
date in accordance with Section 16.3 above; and (cii) Two years after the Closing Date, Buyer and Buyer Parent Purchaser shall have no further obligations under this Article 8, this Agreement or otherwiseXVI for breaches of representations and warranties of the Purchaser, except for Seller Losses Damages with respect to which Vendor Indemnitee has given the Seller Indemnitees have given Buyer or Buyer Parent Purchaser written notice prior to such datedate in accordance with Section 16.3.
(b) Notwithstanding anything to the contrary herein, Purchaser Indemnitees shall not be entitled to recover Damages from Vendor pursuant to Section 16.1 unless and until the accumulated aggregate amount of Damages in respect of any Development Company shall exceed an amount which is the equivalent of E125,000 (the "VENDOR INDEMNIFICATION THRESHOLD"); provided, however, that at such time as the aggregate amount of Damages in respect of the indemnity obligations of Vendor shall exceed Vendor Indemnification Threshold, Vendor shall thereafter indemnify any of the Purchaser Indemnitees from all and against all Damage in excess of equivalent E10,000.
(c) Notwithstanding anything to the contrary herein, in the absence of fraud or willful breach of this Preliminary Agreement (for which there shall be no limitation), in no event shall the maximum aggregate liability of Vendor in respect of any claims by the Purchaser Indemnitees against Vendor pursuant to Section Section 16.1 for Damages suffered or incurred by any Purchaser Indemnitee in respect of any Development Company exceed the maximum amount of E80,000,000.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything Notwithstanding anything to the contrary herein notwithstandingcontained herein, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only any claim for indemnity made by any Buyer Indemnitee relating to Taxes is subject to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause condition that: (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Sources: Framework Transaction Agreement (Elbit Medical Imaging LTD)
Certain Limitations. The liability (a) Except with respect to Indemnifiable Losses resulting from Excluded Taxes or from any inaccuracy in or breach of a representation or warranty set forth in Section 3.17 , no party shall be obligated to indemnify and hold harmless its respective Indemnitees under Section 10.02(a)(i) (in the case of Seller, Buyer and other than with respect to an inaccuracy in or Buyer Parentbreach of any Seller Specified Representation) or Section 10.02(b)(i) (in the case of Purchaser, as applicableand other than with respect to an inaccuracy in or breach of any Purchaser Specified Representation) (i) with respect to any claim or series of claims arising out of substantially similar facts and circumstances, unless such claim or series of claims involves Indemnifiable Losses in excess of $100,000 (the “Threshold Amount”) (nor shall any claim that does not exceed the Threshold Amount be applied to or considered for claims purposes of calculating the amount of Indemnifiable Losses for which the Indemnitor is responsible under this Agreement shall be limited by clause (ii) below) and (ii) unless and until the following:
(a) If the Closing shall not have occurred, recovery aggregate amount of all Indemnifiable Losses of the Buyer Indemnitees under Section 10.02(a)(i) or the Seller Indemniteessuch Section 10.02(b)(i) , as the case may be, pursuant exceeds $14,500,000 for all Indemnifiable Losses (the “Deductible”), at which point such Indemnitor shall be liable to its respective Indemnitees for the value of the Indemnitee’s claims under Section 8.1 10.02(a)(i) (other than with respect to a breach of any Seller Specified Representation) or Section 8.210.02(b)(i) (other than with respect to a breach of any Purchaser Specified Representation), as the case may be, that is in excess of the Deductible, subject to the limitations set forth in this Article X; provided , however , that any Indemnifiable Losses of the Purchaser Indemnified Persons resulting from or arising out of any inaccuracy in or breach of any representation or warranty set forth in Section 3.03 shall not be subject to the Deductible, and the Threshold Amount for such Indemnifiable Losses shall be limited $50,000; provided further that, for the avoidance of doubt, any such Indemnifiable Losses shall be subject to actual out-of-pocket expenses the Threshold Amount and shall the maximum aggregate liability set forth in no event include the following sentence prior to the proviso set forth therein. The maximum aggregate liability of Seller, on the one hand, and Purchaser on the other hand, to their respective Indemnitees for any special, indirect, incidental or consequential damages whatsoever.
(band all Indemnifiable Losses under Section 10.02(a)(i) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(da breach of any Seller Specified Representation), or Sections 10.02(b)(i) , in the case of Purchaser (eother than with respect to a breach of any Purchaser Specified Representation), shall be $174,000,000; provided , that the maximum aggregate liability of Seller to all Purchaser Indemnified Persons for any or all Indemnifiable Losses under this Agreement shall not exceed the Purchase Price. The limitations in this Section 10.03(a) shall not apply to claims made under Section 10.02(a)(iii) , Section 10.02(b)(iii) or Section 10.02(b)(iv).
(b) Each Indemnitee shall use commercially reasonable efforts to mitigate all Indemnifiable Losses for which indemnification may be sought hereunder; provided that the costs and expenses of such mitigation shall constitute Indemnifiable Losses hereunder.
(f)c) by all Buyer Indemnitees Notwithstanding anything to the contrary herein, any Indemnifiable Losses resulting from or arising out of any breach of any representation or warranty of Seller made in this Agreement in respect of Taxes, including under Section 3.17 , shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment Taxes attributable to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofPre-Closing Periods.
Appears in 1 contract
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims Party (including its Affiliates) making a claim under this Agreement shall be limited by Article IX is referred to as the following:“Indemnified Party,” and the Party against whom such claim is asserted under this Article IX is referred to as the “Indemnifying Party.”
(a) If Sellers shall not be liable to any Buyer Indemnified Party for indemnification under Section 9.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.02(a), Section 9.02(b)(i) and Section 9.02(b)(ii) exceeds an amount equal to $[***] (the “Deductible”), in which event the Sellers shall only be required to pay or be liable for Losses in excess of the Deductible; provided, however, that in no event shall Sellers’ aggregate Liability under Section 9.02(a) exceed $[***] (the “Cap”). Notwithstanding the foregoing, neither the Deductible nor the Cap shall apply to any indemnification claim made by any Buyer Indemnified Party: (i) under Section 9.02(b)(i) or Section 9.02(b)(ii), or (ii) arising out of, resulting from or relating to any Fraud by any Seller.
(b) Sellers shall not be liable to any Buyer Indemnified Party for indemnification under Section 9.02(b)(i) or Section 9.02(b)(ii) in an aggregate amount, with respect to each Seller, in excess of the portion of the Purchase Price actually received by such Seller; provided, however, that this Section 9.04(b) shall not apply to any indemnification claim made by any Buyer Indemnified Party arising out of, resulting from or relating to any Fraud by any Seller.
(c) Buyer shall not be liable to any Seller Indemnified Party for indemnification under Section 9.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.03(a) exceeds an amount equal to the Deductible, in which event Buyer shall only be required to pay or be liable for Losses in excess of the Deductible; provided, however, that in no event shall Buyer’s aggregate Liability under Section 9.03(a) exceed the Cap. Notwithstanding the foregoing, neither the Deductible nor the Cap shall apply to any indemnification claim made by any Seller Indemnified Party arising out of, resulting from or relating to: (i) any misrepresentation, inaccuracy in or breach of any Buyer Fundamental Warranty, or (ii) any Fraud by Buyer.
(d) Buyer shall not be liable to any Seller Indemnified Party for indemnification under Section 9.03(a) for a misrepresentation, inaccuracy in or breach of any Buyer Fundamental Warranty in an aggregate amount greater than the Purchase Price; provided, however, that this Section 9.04(d) shall not apply to any indemnification claim made by any Seller Indemnified Party arising out of, resulting from or relating to any Fraud by Buyer.
(e) In no event shall any Indemnified Party be entitled to seek or receive indemnification for the same Losses more than once under this Article IX even if a claim for indemnification in respect of such Losses has been made as a result of a breach of more than one (1) representation, warranty, covenant or agreement contained in this Agreement.
(f) Each Indemnified Party shall take, and cause its Affiliates to take, Commercially Reasonable Efforts to mitigate any Loss that are indemnifiable pursuant to this Agreement to the extent required by Law.
(g) The Indemnifying Party shall not be liable under Section 9.02 for any Losses to the extent included in the calculation of any adjustment to the Purchase Price pursuant to Section 1.07. No Losses may be claimed by Buyer to the extent (i) such Loss is included in the Closing Purchase Price, as finally determined in accordance with Section 1.07, (ii) such Loss consists of or relates to Taxes with respect to the Company attributable to the Post-Closing Taxable Period, or (ii) such Loss is due to Buyer breaching any covenant relating to Taxes in this Agreement.
(h) Nothing in this Article IX shall not have occurredbe deemed to limit any rights of Buyer and its Affiliates as against the R&W Carrier under the R&W Insurance Policy. Notwithstanding any provision in this Agreement to the contrary, the Buyer Indemnified Parties shall be entitled to make a claim for indemnification under this Article IX (subject to the limitations in this Article IX, including the limitation in Section 9.04(i)), concurrently with seeking recovery from any insurance (including the R&W Insurance Policy).
(i) Other than with respect to any misrepresentation, inaccuracy in or breach of the Seller Fundamental Warranties or Fraud, the sole and exclusive recourse of the Buyer Indemnitees Indemnified Parties for Losses in respect to any misrepresentation, inaccuracy in or breach of any representations or warranties of Sellers contained in this Agreement or any other Transaction Agreement, or the Seller Indemniteescorresponding indemnities under Section 9.02(a) and Section 9.02(b)(vi), as shall be to file a claim under the case may beR&W Insurance Policy, regardless of whether: (i) the applicable Buyer Indemnified Party is an insured party pursuant to the R&W Insurance Policy; (ii) the R&W Insurance Policy is revoked, cancelled or modified in any manner after issuance, or (iii) the applicable Buyer Indemnified Party makes a claim under the R&W Insurance Policy in respect to any breach or inaccuracy of any representation or warranty given by Sellers pursuant to in this Agreement or any other Transaction Agreement, or the corresponding indemnities under Section 9.02(a) and Section 9.02(b)(vi), and such claim is denied by the R&W Carrier. For clarity, Buyer shall be solely responsible for paying any deductible or retention amount payable in connection with claims made under the R&W Insurance Policy.
(j) Other than with respect to Fraud, the Buyer’s right to indemnification pursuant to Section 8.1 9.02(b)(i) and Section 9.02(b)(ii) arising out of, resulting from or relating to any misrepresentation, inaccuracy in or breach of any of the Seller Fundamental Warranties will be satisfied: (i) first, to the extent the R&W Insurance Policy provides coverage, from the R&W Insurance Policy up to an amount equal to the policy limit under the R&W Insurance Policy; and (ii) second, from each of the Sellers, severally (not jointly or jointly and severally, notwithstanding the first paragraph in Article II) in respect of any Seller Fundamental Warranties pursuant to Article II (with each Seller’s respective portion of such Losses being determined in accordance with Section 8.29.02(b)), as or where such claim is attributable to a particular Seller, severally (not jointly or jointly and severally, notwithstanding the case may befirst paragraph in Article II) from the applicable Seller, to the extent that the R&W Insurance Policy does not fully cover the Losses (either because no coverage is available under such policy or there is insufficient insurance available under such policy), in an amount not to exceed the amount set forth in Section 9.04(b). For clarity, Buyer shall be limited solely responsible for paying any deductible or retention amount payable in connection with claims made under the R&W Insurance Policy.
(k) The amount to actual which any Indemnified Party is entitled hereunder shall be reduced by the amount of insurance proceeds (other than under the R&W Insurance Policy) actually received by the Indemnified Party in respect of such claim for indemnification, less any costs and expenses (including deductibles and co-insurance) incurred by the Indemnified Party in order to collect such insurance proceeds and less the net present value of any increases in premiums attributable to such amounts. If the Indemnified Party or any of its Affiliates receives any such insurance proceeds subsequent to an indemnification payment by the Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount of the relevant insurance proceeds, less any out-of-pocket collection or out-of-pocket recovery costs and expenses (including deductibles and shall co-insurance) incurred by such Person in no event include order to collect insurance proceeds and less the net present value of any specialincreases in premiums attributable to such Losses. Notwithstanding the foregoing, indirect, incidental or consequential damages whatsoever.a Buyer Indemnified Party will not be required to reimburse amounts actually received from the R&W Carrier to the extent such Buyer Indemnified Party’s total Losses exceed the limits available under the R&W Insurance Policy.
(bl) Two years after the Closing Date (or, in the case The amount of a claim any Loss for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations which indemnification is provided under this Article 8IX will be reduced to take account of any net Tax benefit realized by the Indemnified Party arising from the incurrence or payment of that Loss, to the extent necessary to ensure that the Indemnified Party receives a net amount that, taking into account any net Tax benefit, is sufficient to fully compensate for the Loss, but results in no net gain to the Indemnified Party. In computing the amount of any net Tax benefit, the Indemnified Party will be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment under this Agreement or the incurrence or payment of any indemnified Loss.
(m) Notwithstanding anything in this Agreement to the contrary, from and after the Closing, no Person defined as a Seller Indemnified Party shall seek or otherwisebe entitled to advancement, except indemnification, contribution or other recovery of any kind from the Company Group (including by reason of the fact that he, she or it was an officer, director, manager, member, employee, or agent of the Company Group or was serving at the request of the Company Group as a partner, trustee, director, officer, employee, or agent of another entity) for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice any actions or omissions of such Person prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that for which such Person is covered by insurance, required to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that indemnify any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of Indemnified Party under this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregateIX.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Sources: Share Purchase Agreement (Hydrofarm Holdings Group, Inc.)
Certain Limitations. The liability (a) No claim for indemnification may be asserted against either Seller or Buyer for breach of Sellerany representation, warranty, covenant or agreement contained herein, unless written notice of such claim is received by Buyer or Buyer ParentSeller, as applicable, for claims under this Agreement shall be limited by describing in reasonable detail the following:
(a) If facts and circumstances with respect to the Closing shall not have occurred, recovery subject matter of such claim on or prior to the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include expiration date of any special, indirect, incidental or consequential damages whatsoeverapplicable Survival Period.
(b) Two years after Seller shall not be liable under Section 10.2(a)(i) unless and until the Closing Date cumulative aggregate amount of all Losses in respect thereof exceeds One Hundred Fifty Thousand Dollars (or$150,000) (the “Deductible”), in which event Seller shall only be liable for Losses in excess of the case Deductible; provided, however, that Seller shall not be liable under Section 10.2(a)(i) for any individual or series of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Daterelated Losses which does not exceed Thirty Seven Thousand Five Hundred Dollars ($37,500) (“De Minimis Losses”), which De Minimis Losses shall not be counted toward the Deductible and in no event shall Seller have any liability hereunder for such De Minimis Losses. Notwithstanding anything to the contrary contained in this Agreement, Seller’s aggregate liability for all Losses resulting from or relating to any Direct Claims made under Section 10.2(a)(i) or third party claims made under Section 10.2(a)(i) shall have no further obligations not exceed One Million Two Hundred Fifty Thousand Dollars ($1,250,000) (the “Cap”). The Parties hereby acknowledge that the Cap shall be a single amount applicable to the aggregate of all Direct Claims for indemnification arising under this Article 8, this Agreement Section 10.2(a)(i) and third party claims for indemnification arising under Section 10.2(a)(i) and that any indemnification payments made in respect of any Direct Claims pursuant to Section 10.2(a)(i) or otherwise, except third party claims pursuant to Section 10.2(a)(i) shall reduce the remaining amounts available under the Cap for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to all such dateclaims.
(c) Two years after Each of the Closing Date, Buyer Indemnitees and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior shall use its commercially reasonable efforts to such datemitigate any Losses in connection with this Agreement.
(d) No Buyer The amount of any Losses or Seller Losses, as the case may be, for which indemnification is provided under this Article X shall be asserted computed net of (i) any insurance or other proceeds actually received by the Indemnified Party in connection with such Losses and (ii) any indemnity, contribution or other similar payment the Indemnified Party received from any other Person with respect to such Loss less any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks (it being agreed that no Party shall have any obligation to seek to recover any insurance proceeds in connection with making a claim under this Article X and that, promptly after the realization of any insurance proceeds, indemnity, contribution or other similar payment, the Indemnified Party shall reimburse the Indemnifying Party for such reduction in Losses for which the Indemnified Party was indemnified prior to the realization of reduction of such Losses).
(e) The amount of any indemnification payment made by a Buyer Indemnitee Party under Article X shall be treated for all Tax purposes as an adjustment to the Purchase Price unless otherwise required by applicable Law following a final determination as defined in Section 1313 of the Code.
(f) Upon payment of any Losses with respect to a claim pursuant to this Article X, the Indemnifying Party shall be subrogated to the extent of such payment (and to recover costs or a Seller Indemniteeexpenses incurred by the Indemnifying Party in enforcing such recovery rights against such Person) to the rights of the Indemnified Party against any Person with respect to the subject matter of such claim for indemnification. The Indemnified Party shall assign such rights to and otherwise reasonably cooperate with the Indemnifying Party, as applicableat the cost and expense of Indemnifying Party, to pursue any claims against or otherwise recover amounts from, any Person liable or responsible for any Losses for which indemnification has been received pursuant to this Agreement.
(g) In the event Losses suffered by any Indemnified Party are recoverable under more than one provision of this Agreement and even though an Indemnified Party is permitted to rely on each provision of this Article X independently, any such Indemnified Party shall only be permitted to recover with respect to any matter particular Losses suffered by it one time as it is the Parties’ intent that is covered recovery by insurance, to the extent proceeds of such insurance are paidparticular Indemnified Party for such same Losses under another provision would constitute an unintended and prohibited “double” recovery.
(h) No Indemnified Party shall be entitled to bring a claim for indemnification for any breach or inaccuracy of any representation, warranty or covenant set forth in this Agreement if Buyer (if such Indemnified Party is a Buyer Indemnitee) or Seller (if such Indemnified Party is a Seller Indemnitee) had Knowledge of such breach or inaccuracy as of the Execution Date. Notwithstanding the foregoing, an Indemnified Party’s right to indemnification pursuant to this Article X shall not be affected by (i) Anything to any investigation or audit conducted on or after the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
Execution Date or (ii) Anything to the contrary herein notwithstandingknowledge of any Party of any breach of a representation, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that warranty or covenant by any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals other Party at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than any time with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in any matters arising or discovered after the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofExecution Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Adams Resources & Energy, Inc.)
Certain Limitations. The liability (a) Except in the case of SellerFraud and indemnification claims related to any breach of or inaccuracy in the Acquired Company Fundamental Representations, Buyer Fundamental Representations or the Tax Representations, the Buyer ParentIndemnified Parties, as a group, on the one hand, and the Seller Indemnified Parties, as a group, on the other hand, may not recover any Losses pursuant to an indemnification claim under Section 10.2(a)(i), Section 10.2(a)(viii), Section 10.2(a)(ix), Section 10.2(a)(x), or Section 10.2(b)(i), as applicable: (i) unless for any particular indemnifiable Losses (or group of related indemnifiable Losses that result from the same circumstances) pursuant to this Article X, the aggregate amount of such indemnifiable Losses or group of related indemnifiable Losses is greater than $15,000 (the “De Minimis Threshold”); if less than the De Minimis Threshold, such indemnifiable Losses shall not be subject to indemnity hereunder, and, if greater or equal to the De Minimis Threshold, the entire amount (subject to the other limitations set forth in this Article X) shall be eligible for indemnity and (ii) unless and until the Buyer Indemnified Parties, as a group, on the one hand, or the Seller Indemnified Parties, as a group, on the other hand, shall have paid, incurred, suffered or sustained at least $100,000 in Losses (the “Deductible”) in the aggregate, at which time the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, shall be entitled to recover in accordance with this Agreement all Losses in excess of the Deductible.
(b) Subject to the limitations set forth in this Section 10.3, the Buyer Indemnified Parties shall be entitled to bring indemnification claims directly against the Sellers.
(c) In no event shall:
(i) the aggregate liability of any Seller for all indemnification claims related to any breach of or inaccuracy of any representation (other than the Acquired Company Fundamental Representations and the Tax Representations) made under this Agreement exceed fifty percent (50%) of the aggregate amount of Seller Consideration received by such Seller;
(ii) the aggregate liability of any Seller for all indemnification claims related to any breach of or inaccuracy of any Acquired Company Fundamental Representation or any Tax Representation exceed one hundred percent (100%) of the aggregate amount of Seller Consideration received by such Seller;
(iii) the aggregate liability of Buyer for all indemnification claims related to any breach of or inaccuracy of any representation (other than the Buyer Fundamental Representations) made under this Agreement exceed fifty percent (50%) of the aggregate amount of Seller Consideration paid by Buyer; or
(iv) the aggregate liability of any Seller for all indemnification claims related to any breach of or inaccuracy of any Buyer Fundamental Representation exceed one hundred percent (100%) of the aggregate amount of Seller Consideration paid by ▇▇▇▇▇.
(d) The limitations set forth in Section 10.3(c) shall not apply to (and shall not limit the indemnification or other obligations of Buyer or any Seller for or with respect to) any of the matters referred to in Sections 10.2(a)(ii) through 10.2(a)(vii), Section 10.2(b)(ii) or Section 10.2(b)(iii). Notwithstanding anything to the contrary contained in this Agreement, there shall be no limitation (whether under this Article X or otherwise) on the liability of Buyer or any Seller that committed, had actual knowledge of or consciously disregarded the occurrence of, any fraud with respect to such fraud.
(e) The Indemnified Parties shall use commercially reasonable efforts (but with no duty to litigate) to pursue a claim (to the extent coverage is available for such claim) under any insurance policy that existed as of the applicable Closing Date. The Indemnified Parties shall not be entitled to recover under Section 10.2(a) or Section 10.2(b) to the extent the subject matter of the claim is covered by insurance proceeds, indemnification payments or similar reimbursements actually received by the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustment).
(f) Except with respect to Unpaid Pre-Closing Taxes, the Indemnified Parties shall not be entitled to recover under Section 10.2(a) or Section 10.2(b) unless such Indemnified Parties have taken commercially reasonable actions to mitigate Losses hereunder after the date one or more of such Indemnified Parties becomes aware that the event, occurrence or action could reasonably be expected to give rise to Losses.
(g) The Indemnified Parties shall not be entitled to recover under Section 10.2(a) or Section 10.2(b) with respect to consequential damages of any kind, or indirect, special, incidental, exemplary or punitive damages (except to the extent paid or payable by an Indemnified Party to a third party in connection with a Third Party Claim).
(h) Any Losses for indemnification under this Agreement shall be limited by determined without duplication of recovery due to the following:
(a) If the Closing shall not have occurredfacts giving rise to such Losses constituting a breach of more than one representation, recovery of the Buyer Indemnitees warranty, covenant or the Seller Indemniteesagreement, as the case may be, or being indemnifiable pursuant to more than one clause of Section 8.1 10.2(a) or Section 8.210.2(b). In addition, as the case may be, shall be limited to actual out-of-pocket expenses if and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only solely to the extent that any such breaches result in Buyer an amount of Losses in excess connection with an indemnifiable matter was already specifically taken into account in connection with calculation of Cdn$50,000 in the aggregate Seller Consideration and then only to actually reduced the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstandingSeller Consideration, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent same Losses may not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of recovered under this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.X.
Appears in 1 contract
Sources: Securities Purchase Agreement (Tempo Automation Holdings, Inc.)
Certain Limitations. The liability of Seller, (i) Notwithstanding anything to the contrary contained in this Agreement: (A) no Buyer or Buyer Parent, as applicable, for claims under this Agreement Indemnified Party shall be limited by the following:
entitled to recover any Losses (aother than Losses that relate to Taxes) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 9.2(a) unless and until the aggregate amount of all Losses actually incurred or suffered by the Buyer Indemnified Parties pursuant to Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall 9.2(a) is in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, excess of $2,000,000 in the case of a claim for breach of Section 3.15, three years after aggregate (the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date“Deductible”), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but then only to the extent there was that such Losses exceed the Deductible; and (B) no Buyer Indemnified Party shall be entitled to recover any Losses (other than Losses that relate to Taxes) pursuant to Section 9.2(a) in respect of any single claim if the amount of such Losses is less than $50,000 (the “Minimum Loss Amount”), and no such Losses that are less than the Minimum Loss Amount shall be included in calculating the aggregate Losses for purposes of determining if the Deductible has been met in this Section 9.2(b); provided, that in each case all related single claims and losses will be aggregated in determining whether the Minimum Loss Amount is met. The limitations in this Section 9.2(b)(i) shall not apply to Losses attributable to claims for breaches of Section 3.12 or Excluded Claims.
(ii) Notwithstanding anything to the contrary contained in this Agreement: (A) except with respect to Losses attributable to Excluded Claims, the Buyer Indemnified Parties shall have no right to receive any indemnification payments from the Indemnifying Parties for any claims for Losses pursuant to Section 9.2(a) in excess of the amount then remaining in the Escrow Account; (B) the Buyer Indemnified Parties shall have no right to receive any indemnification from the Indemnifying Parties for any claims for Losses pursuant to Section 9.2(a) (including Excluded Claims) in excess of the amount of Aggregate Stockholder Cash Proceeds and Aggregate Option Cash Proceeds received by the Indemnifying Parties; and (C) no Indemnifying Party shall be liable for an amount in excess of such Indemnifying Party’s pro rata portion (calculated in the manner set forth in Section 9.2(a)) of any Losses that are indemnifiable hereunder.
(iii) For the purpose of quantifying Buyer Indemnified Party’s Losses under this Article 9 only (but not for determining whether any representation, warranty, covenant or agreement has been breached or is inaccurate), any representation, warranty, covenant or agreement given or made by the Company that is qualified in scope as to materiality (including a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurredCompany Material Adverse Effect) shall be deemed to be breached only to the extent that any made or given without such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregatequalifications.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to For the provisions purpose of this Article 8 9 only, the amount of any Loss shall be reduced by (other than A) any insurance proceeds actually received by a Buyer Indemnified Party with respect to Section 8.1(dsuch Loss and (B) any amounts actually recovered by a Buyer Indemnified Party from another Person in respect of such Losses. In addition, for purposes of determining the amount of any Loss attributable to Taxes of the Company or any of its Subsidiaries in any Pre-Closing Taxable Period, the amount of any such Loss shall be reduced by any correlative tax savings or benefit actually recognized by a Buyer Indemnified Party as a result of incurring such Loss on or before the end of the taxable year after the tax year in which such Loss is incurred or in which the amount of such Loss is finally determined in accordance with this Agreement.
(v) Anything herein to the contrary notwithstanding, no Indemnifying Party shall have any liability under any provision of this Agreement for, and Losses shall not include, any punitive, exemplary or other similar damages, unless the applicable Buyer Indemnified Party is required to pay such damages to a third party as part of a third party claim against such Buyer Indemnified Party that is otherwise indemnifiable hereunder.
(vi) Notwithstanding anything to the contrary set forth in this Agreement, no Indemnifying Party shall have any Liability for Taxes incurred by the Company or any Subsidiary of the Company resulting from the transactions contemplated by this Agreement (including any Employment Transaction Taxes or Transfer Taxes, which shall be the responsibility of Buyer), other than Taxes that would not have been incurred but for a breach of any of the representations, warranties and covenants contained in Section 3.12, Section 3.13, Section 3.20, Section 5.5, Section 5.6 and Section 5.11.
(evii) and In no event shall an Indemnified Party be indemnified for any indemnifiable Losses pursuant to this Article 9 related to or arising from the amount, value or condition of any Tax asset or attribute (f)) by all Buyer Indemnitees shall be e.g., net operating loss carry-forward (including, but not limited in to, any such carry-forward attributable to payment of the aggregate Option Consideration with respect to all Vested Options and amounts required to be paid at the Purchase Price Indemnification Amount. For purposes Closing under the management transaction incentive plan or other arrangements described on Section 1.1(a) of this the Schedule of Exceptions) or Tax credit carry-forward) of the Company or the ability of Buyer or the Surviving Corporation to utilize any such Tax asset or attribute for any taxable period commencing after the Effective Time, other than Losses that arise in connection with a breach or inaccuracy of any of the representations, warranties and covenants contained in Section 8.3(e)(ii3.13(d), "Purchase Price Indemnification Amount" shall mean the sum of (xSection 3.13(i), Section 3.13(j), Section 3.13(k) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof5.6.
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Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If Notwithstanding anything to the Closing shall not have occurredcontrary contained herein, recovery the other Transaction Agreements, the Cedent Disclosure Schedule, or any of the Buyer Indemnitees Schedules or Exhibits hereto or thereto, Reinsurer acknowledges and agrees that neither Cedent nor any of its Affiliates, nor any Representative of any of them, makes or has made, and Reinsurer has not relied on, any inducement, promise, representation or warranty, oral or written, express or implied, other than except as expressly made by Cedent in Article III. Without limiting the Seller Indemniteesgenerality of the foregoing, other than as the case may beexpressly set forth in Article III, pursuant no Person has made any representation or warranty to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses Reinsurer with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing DateBusiness or any other matter, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses including with respect to which (i) the Seller Indemnitees have given Buyer probable success or Buyer Parent written notice prior profitability of the Business after the Closing, or (ii) any information, documents, or material made available to such date.
(d) No Buyer Losses Reinsurer, its Affiliates, or Seller Lossestheir respective Representatives in any “data rooms,” information memoranda, as management presentations, functional “break-out” discussions, or in any other form or forum in connection with the case may betransactions contemplated by this Agreement, shall be asserted by a Buyer Indemnitee including any estimation, valuation, appraisal, projection, or a Seller Indemnitee, as applicable, with forecast. With respect to any matter that is covered such estimation, valuation, appraisal, projection, or forecast (including and confidential information memoranda prepared by insuranceor on behalf of Cedent in connection with the transactions contemplated by this Agreement), to the extent proceeds of such insurance are paid.
Reinsurer acknowledges that: (i) Anything there are uncertainties inherent in attempting to the contrary herein notwithstandingmake such estimations, the representations valuations, appraisals, projections, and warranties contained forecasts; (ii) it is familiar with such uncertainties; (iii) except as expressly set forth in clauses (aSection 3.12(b) through (eand Section 5(a) of Section 3.15 Article VIII of the Reinsurance Agreement it is not acting and clauses has not acted in reliance on any such estimation valuation, appraisal, projection, or forecast delivered by or on behalf of Cedent to Reinsurer, its Affiliates or their respective Representatives; (fiv) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) estimations, valuations, appraisals, projections, and forecasts are not and shall not be deemed to be breached only to the extent that representations or warranties of Cedent or any such breaches result of its Affiliates except as expressly set forth in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(iiSection 3.12(b) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.and
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Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, indemnification provided for claims under this Agreement in Section 11.2 shall be limited by subject to the followingfollowing limitations:
(a) If the Closing Seller Indemnifying Parties shall not have occurredbe liable to the Buyer Indemnified Parties for indemnification under Section 11.2(a) and (e) until the aggregate amount of all Losses in respect of indemnification under Section 11.2(a) and (e) exceeds $100,000 (the “Basket”), recovery in which event Seller Indemnifying Parties shall only be required to pay or be liable for Losses in excess of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverBasket.
(b) Two years after the Closing Date The aggregate amount of all Losses for which Seller Indemnifying Parties shall be liable pursuant to Section 11.2(a) and (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller e) shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such datenot exceed $3,800,000.
(c) Two years after Notwithstanding the Closing Dateforegoing, Buyer the limitations set forth in Sections 11.4(a) and Buyer Parent (b) shall have no further obligations under this Article 8not apply to Losses based upon, this Agreement arising out of actual fraud or otherwisearising out of, except for Seller Losses with respect to which or by reason of any inaccuracy in the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such dateFundamental Representations.
(d) No Buyer Except for actual fraud, the aggregate amount of all Losses or for which Seller Losses, as the case may be, Indemnifying Parties shall be asserted liable pursuant to Section 11.2(a) shall not exceed $19,000,000.
(e) Except for actual fraud, no Seller Indemnifying Party shall be liable for any Losses pursuant to Section 11.2 in excess of the Purchase Price actually received by such Seller Indemnifying Party and in no event will any Seller Indemnifying Party be liable for any breach of a Buyer Indemnitee representation or a warranty or actual fraud committed by any other Seller IndemniteeIndemnifying Party. For the avoidance of doubt, as applicableeven in the event of actual fraud, with respect no Seller indemnifying Party that has not committed fraud shall be liable for any Losses in excess of the Purchase Price actually received by such Seller Indemnifying Party.
(f) Notwithstanding anything herein to the contrary, from and after the Closing, any matter that is covered by insuranceclaims for indemnification under Section 11.2 shall, subject to the foregoing provisions of this Section 11.4, be satisfied (i) first, to the extent proceeds of such insurance are paid.
(i) Anything to recovery is available under the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicableEscrow Fund, pursuant to the provisions Escrow Agreement, (ii) second, by offset against any amounts of this Article 8Earn-Out Payment that become due (but have not already been paid) pursuant to Section 2.5, unless the amount of Buyer Losses or Seller Losses, as the case may beand (iii) third, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses recovery is not available by offset of any Earn-out Payment or under the Escrow Fund, directly by Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregateIndemnifying Parties.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
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Certain Limitations. The liability of Seller(a) Notwithstanding anything contained herein to the contrary, Buyer or Buyer Parent, as applicable, the Company and Parent shall not be obligated to indemnify Purchaser Indemnified Parties for claims aggregate Purchaser Losses (i) under this Agreement pursuant to Section 9.01(a)(1) in excess of $14,000,000 (the “Cap”) or (ii) under this Agreement (other than pursuant to Sections 6.09 and 9.01(a)(3)) in excess of an amount equal to the Purchase Price; provided, however, that the limitations set forth in clause (i) and (ii) above shall not apply to fraud, criminal activity, willful misconduct or any breaches of any Fundamental Representation. Notwithstanding anything contained herein to the contrary, Purchaser shall not be obligated to indemnify Company Indemnified Parties for aggregate Company Losses (i) under this Agreement pursuant to Section 9.01(b)(1) in excess of the Cap; provided, however, that the limitations set forth in clause (i) shall not apply to fraud or any breaches of any Fundamental Representation or (ii) under this Agreement (other than pursuant to Sections 6.09 and 9.01(b)(3)) in excess of an amount equal to the Purchase Price.
(b) Notwithstanding anything contained herein to the contrary, the Company and Parent shall not be obligated to indemnify Purchaser Indemnified Parties under this Agreement pursuant to 9.01(a)(1), unless and until the aggregate Purchaser Losses subject to such indemnification collectively exceed $700,000 (the “Deductible”), whereupon such indemnification shall be limited made by the following:Company and Parent only with respect to the amount of such Purchaser Losses in excess of $500,000; provided that no Purchaser Losses may be claimed by a Purchaser Indemnified Party or shall be reimbursable by the Company or Parent or shall be included in calculating the Deductible other than Purchaser Losses in excess of $25,000 resulting from any single or aggregated claims arising out of the same facts, events or circumstances and provided that in no event shall any internal costs be included as a Loss; further provided, however, that the Deductible shall not apply to any breaches of any Fundamental Representation or any Purchaser Losses due to fraud, criminal activity, or willful misconduct. Notwithstanding anything contained herein to the contrary, Purchaser shall not be obligated to indemnify Company Indemnified Parties under this Agreement pursuant to 9.01(b)(1), unless and until the aggregate Company Losses subject to such indemnification collectively exceed the Deductible, whereupon such indemnification shall be made by Purchaser only with respect to the amount of such Company Losses in excess of $500,000; provided that no Company Losses may be claimed by a Company Indemnified Party or shall be reimbursable by Purchaser or shall be included in calculating the Deductible other than Company Losses in excess of $25,000 resulting from any single or aggregated claims arising out of the same facts, events or circumstances and provided that in no event shall any internal costs be included as a Loss; further provided, however, that the Deductible shall not apply to any breaches of any Fundamental Representations.
(ac) If The representations and warranties of the Company and Parent contained in Article IV and Purchaser contained in Article V shall survive the Closing and terminate on the date that is eighteen (18) months following the Closing Date (except for the representations and warranties contained in Section 4.05 and Section 4.13 which shall survive for sixty (60) days following the expiration of the applicable statute of limitations); provided that the Fundamental Representations shall terminate on the date that is thirty-six (36) months following the Closing Date. All covenants and agreements of the Parties contained herein shall survive the Closing indefinitely or for the period explicitly specified therein.
(d) The obligations to indemnify and hold harmless a Party pursuant to Sections 9.01(a)(1) or 9.01(b)(1) shall terminate when the applicable representation or warranty terminates pursuant to Section 9.02(c); provided, however, that such obligations to indemnify and hold harmless shall not have occurred, recovery of terminate with respect to any claims as to which the Buyer Indemnitees Company Indemnified Party or the Seller IndemniteesPurchaser Indemnified Party, as the case may be, pursuant to Section 8.1 or Section 8.2be indemnified (each, as an “Indemnified Party”) shall have, before the case may beexpiration of the applicable survival period, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of previously made a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of by delivering a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to (stating in reasonable detail the basis of such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insuranceclaim, to the extent proceeds of such insurance are paidknown by the Indemnified Party) to the indemnifying Party hereunder (the “Indemnifying Party”).
(ie) Anything Each Person entitled to indemnification hereunder shall, to the contrary herein notwithstandingextent as would be required under applicable Law, the representations and warranties contained take all reasonable steps to mitigate all Losses after becoming aware of any event that could reasonably be expected to give rise to any Losses which are indemnifiable or recoverable hereunder or in clauses (a) through (e) of Section 3.15 and clauses connection herewith.
(f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii)Article IX, "Purchase Price Indemnification Amount" any inaccuracy in or breach of any representation or warranty shall mean the sum of (x) Cdn$13,062,741 (plus be determined without regard to any materiality, Material Adverse Effect or minus any adjustment other similar qualification contained in or otherwise applicable to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether such representation or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofwarranty.
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Certain Limitations. The liability (a) No claim for indemnification may be asserted against either Seller or Buyer for breach of Sellerany representation, warranty, covenant or agreement contained herein, unless written notice of such claim is received by Buyer or Buyer ParentSeller, as applicable, for claims under this Agreement shall be limited by describing in reasonable detail the following:
(a) If facts and circumstances with respect to the Closing shall not have occurred, recovery subject matter of such claim on or prior to the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include expiration date of any special, indirect, incidental or consequential damages whatsoeverapplicable Survival Period.
(b) Two years after Seller shall not be liable under Section 10.2(a)(i) unless and until the Closing Date cumulative aggregate amount of all Losses in respect thereof exceeds One Hundred Fifty Thousand Dollars (or$150,000) (the “Deductible”), in which event Seller shall only be liable for Losses in excess of the case Deductible; provided, however, that Seller shall not be liable under Section 10.2(a)(i) for any individual or series of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Daterelated Losses which does not exceed Thirty Seven Thousand Five Hundred Dollars ($37,500) (“De Minimis Losses”), which De Minimis Losses shall not be counted toward the Deductible and in no event shall Seller have any liability hereunder for such De Minimis Losses. Notwithstanding anything to the contrary contained in this Agreement, Seller’s aggregate liability for all Losses resulting from or relating to any Direct Claims made under Section 10.2(a)(i) or third party claims made under Section 10.2(a)(i) shall have no further obligations not exceed One Million Two Hundred Fifty Thousand Dollars ($1,250,000) (the “Cap”). The Parties hereby acknowledge that the Cap shall be a single amount applicable to the aggregate of all Direct Claims for indemnification arising under this Article 8, this Agreement Section 10.2(a)(i) and third party claims for indemnification arising under Section 10.2(a)(i) and that any indemnification payments made in respect of any Direct Claims pursuant to Section 10.2(a)(i) or otherwise, except third party claims pursuant to Section 10.2(a)(i) shall reduce the remaining amounts available under the Cap for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to all such dateclaims.
(c) Two years after Each of the Closing Date, Buyer Indemnitees and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior shall use its commercially reasonable efforts to such datemitigate any Losses in connection with this Agreement.
(d) No Buyer The amount of any Losses or Seller Losses, as the case may be, for which indemnification is provided under this Article X shall be asserted computed net of (i) any insurance or other proceeds actually received by the Indemnified Party in connection with such Losses and (ii) any indemnity, contribution or other similar payment the Indemnified Party received from any other Person with respect to such Loss less any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks (it being agreed that no Party shall have any obligation to seek to recover any insurance proceeds in connection with making a claim under this Article X and that, promptly after the realization of any insurance proceeds, indemnity, contribution or other similar payment, the Indemnified Party shall reimburse the Indemnifying Party for such reduction in Losses for which the Indemnified Party was indemnified prior to the realization of reduction of such Losses).
(e) The amount of any indemnification payment made by a Buyer Indemnitee Party under Article X shall be treated for all Tax purposes as an adjustment to the Purchase Price unless otherwise required by applicable Law following a final determination as defined in Section 1313 of the Code.
(f) Upon payment of any Losses with respect to a claim pursuant to this Article X, the Indemnifying Party shall be subrogated to the extent of such payment (and to recover costs or a Seller Indemniteeexpenses incurred by the Indemnifying Party in enforcing such recovery rights against such Person) to the rights of the Indemnified Party against any Person with respect to the subject matter of such claim for indemnification. The Indemnified Party shall assign such rights to and otherwise reasonably cooperate with the Indemnifying Party, as applicableat the cost and expense of Indemnifying Party, to pursue any claims against or otherwise recover amounts from, any Person liable or responsible for any Losses for which indemnification has been received pursuant to this Agreement.
(g) In the event Losses suffered by any Indemnified Party are recoverable under more than one provision of this Agreement and even though an Indemnified Party is permitted to rely on each provision of this Article X independently, any such Indemnified Party shall only be permitted to recover with respect to any matter particular Losses suffered by it one time as it is the Parties’ intent that is covered recovery by insurance, to the extent proceeds of such insurance are paid29 particular Indemnified Party for such same Losses under another provision would constitute an unintended and prohibited “double” recovery.
(h) No Indemnified Party shall be entitled to bring a claim for indemnification for any breach or inaccuracy of any representation, warranty or covenant set forth in this Agreement if Buyer (if such Indemnified Party is a Buyer Indemnitee) or Seller (if such Indemnified Party is a Seller Indemnitee) had Knowledge of such breach or inaccuracy as of the Execution Date. Notwithstanding the foregoing, an Indemnified Party’s right to indemnification pursuant to this Article X shall not be affected by (i) Anything to any investigation or audit conducted on or after the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
Execution Date or (ii) Anything to the contrary herein notwithstandingknowledge of any Party of any breach of a representation, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that warranty or covenant by any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals other Party at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than any time with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in any matters arising or discovered after the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofExecution Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims Any party making a claim under this Agreement Article VII is referred to as an “Indemnified Party,” and the party against whom such claims are asserted under this Article VII is referred to as the “Indemnifying Party.” The indemnification provided for in Section 5.05(b) and Article VII shall be limited by subject to the followingfollowing limitations:
(a) If the Closing The Sellers shall not have occurred, recovery be liable to an Indemnified Party for indemnification under Section 7.02(a)(i) and (ii) until the aggregate amount of all Losses in respect of indemnification under Section 7.02(a)(i) and (ii) exceeds 0.75% of the Buyer Indemnitees Base Purchase Price (the “Deductible”), in which event Sellers shall only be required to pay or be liable for Losses in excess of the Deductible; provided that the Deductible shall not apply to any Losses as result of a breach of the Several Representations or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 Fundamental Representations or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverresulting from Fraud.
(b) Two years after Subject to the Closing Date other limitations imposed by this Article VII, all claims against the Sellers for indemnification under this Agreement, including any claims for the Tax Indemnity and claims under Article VII, shall be paid and satisfied solely from the Escrow Account, to the extent of any funds then remaining therein; provided, however, that (ori) Losses resulting from the common law liability of any Seller to Buyer for fraud in the event of a final determination by a court of competent jurisdiction that any Seller committed fraud against Buyer (“Fraud”), and (ii) Losses resulting from the indemnification provisions of Section 7.02(b), in each case, shall not be satisfied from the case of a claim for breach of Section 3.15Escrow Account but, three years after instead, Buyer may recover such Losses directly from the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such dateoffending Seller.
(c) Two years after Each Seller’s maximum liability hereunder for any indemnification claims for the Closing DateSeveral Representations or for any Seller’s Fraud shall not, Buyer and Buyer Parent shall have no further when aggregated with all other indemnification obligations under this Article 8hereunder, this Agreement or otherwise, except for Seller Losses with respect to which exceed the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to portion of the Purchase Price actually received by such dateSeller.
(d) No Buyer Losses Payments by an Indemnifying Party pursuant to Section 5.05(b) or Seller Losses, as the case may be, Article VII in respect of any Loss shall be asserted limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received by the Indemnified Party (or an Acquired Company) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under other insurance policies for any Losses prior to seeking indemnification under this Agreement. In the event any Indemnifying Party pays any indemnification amount to an Indemnified Party, and such Indemnified Party then receives an insurance payment, or other indemnity or contribution payment, then such Indemnified Party shall promptly repay to such Indemnifying Party a Buyer Indemnitee refund equal to the aggregate amount of such recovery but not in excess of the amount previously paid by such Indemnifying Party to such Indemnified Party for the indemnification claim.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or a circumstance that would be reasonably expected to, or does, give rise to an indemnification obligation hereunder; provided, however, that no Indemnified Party or its Affiliates shall be required to make any material monetary expenditure, commence or participate in any proceeding, offer or grant any material accommodation to any Person, or take, or refrain from taking, any action that would or would reasonably be expected to adversely affect the business, operations, results or condition (financial or otherwise) of such Indemnified Party or its Affiliates in any material respect in connection with such mitigation.
(f) No Seller Indemnitee, as applicable, shall have any liability with respect to either Fraud or a breach of any matter that is covered of the Several Representations by insuranceany other Seller, and Buyer agrees not to seek recovery against a Seller with respect to either Fraud or a breach of the Several Representations by another Seller.
(g) Notwithstanding anything contained elsewhere in this Agreement, the amount of any Loss subject to indemnification under Section 7.02 shall be calculated net of any amounts to the extent proceeds extent, but only to the extent, specifically reflected or reserved for in the Financial Statements or the Final Balance Sheet and taken into account in determining the amount of such insurance are paidthe Purchase Price pursuant to Article II.
(h) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple (collectively, “Excess Damages”); provided, however, this limitation shall not be applicable to indemnification claims for Excess Damages required to be paid to a third party by an Indemnified Party as a result of a Third-Party Claim.
(i) Anything If an Indemnified Party is entitled to indemnification under more than one clause or subclause of this Agreement with respect to Losses, then such Indemnified Party shall be entitled to only one indemnification or recovery for such Losses to the contrary herein notwithstandingextent it arises out of the same set of circumstances and events; it being understood that this Section 7.04(j) is solely to preclude a duplicate recovery by an Indemnified Party (i.e., recovery in excess of actual damages).
(j) Notwithstanding anything contained elsewhere in this Agreement, Buyer shall not seek or be entitled to indemnification for any Losses based upon or relating to the Theater Repairs or the Lease Amendments (including, without limitation, any alleged breach of the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only 3.10 solely related to either the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average Company’s historical accounting treatment of the closing prices reported on Leases or the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofLease Amendments).
Appears in 1 contract
Sources: Stock Purchase Agreement (Amc Entertainment Holdings, Inc.)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If Notwithstanding anything to the Closing contrary in this Agreement, but subject to Section 10.3(b), (i) Seller shall not be required to indemnify any Purchaser Indemnitee, nor shall Seller have occurredany liability under Section 10.1(a), recovery unless the total amount of all Damages exceeds the Tipping Basket Amount, then the Purchaser Indemnitees shall be entitled to be indemnified against and compensated and reimbursed for the entire amount of such Damages, and not merely the portion of such Damages exceeding the Tipping Basket Amount; provided, that, subject to Section 10.3(b), Seller shall not be required to indemnify any Purchaser Indemnitee, nor have any liability, under Section 10.1(a), in the aggregate in excess of [***]% of the Buyer Indemnitees or Purchase Price; and (ii) Purchaser shall not be required to indemnify any Seller Indemnitee, nor shall Purchaser have any liability under Section 10.2(a), unless the total amount of all Damages exceeds the Tipping Basket Amount, then the Seller IndemniteesIndemnitees shall be entitled to be indemnified against and compensated and reimbursed for the entire amount of such Damages, as and not merely the case may beportion of such Damages exceeding the Tipping Basket Amount; provided, pursuant that, subject to Section 8.1 or 10.3(b), Purchaser shall not be required to indemnify any Seller Indemnitee, nor have any liability, under Section 8.210.2(a), as in the case may be, shall be limited to actual out-of-pocket expenses and shall aggregate in no event include any special, indirect, incidental or consequential damages whatsoeverexcess of [***]% of the Purchase Price.
(b) Two years after Subject to Section 10.3(c), (i) the Closing Date (orSeller shall not be required to indemnify any Purchaser Indemnitee, nor shall the Seller have any liability, under Section 10.1(b), Section 10.1(c), Section 10.1(d), Section 10.1(f) and Section 10.1(h) in the case aggregate in excess of a claim for breach of the cash amounts actually received by the Seller under this Agreement, and (ii) Purchaser shall not be required to indemnify any Seller Indemnitee, nor shall Purchaser have any liability, under Section 3.15, three years after the Closing Date, and, 10.2(b) or Section 10.2(d) in the case aggregate in excess of a claim for breach of Section 3.11, six years after the Closing Date), cash amounts actually received by the Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such dateAgreement.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under Notwithstanding anything in this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, 10 to the extent proceeds of such insurance are paid.
contrary, the limitations set forth in Section 10.3(a) and Section 10.3(b) shall not apply to Damages arising out of, relating to, or in connection with (i) Anything to the contrary herein notwithstandingany liability under Section 10.1(e) or Section 10.1(g), the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
or (ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of any liability under Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e10.2(c)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims party making a claim under this Agreement Article VIII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article VIII is referred to as the “Indemnifying Party”. The indemnification obligations set forth in this Article VIII shall be limited by subject to the followingfollowing limitations:
(a) No Seller shall have any obligation to directly satisfy any claim by an Indemnified Party for Losses as a result of any breach of any of the representations or warranties of the Company or the Sellers set forth herein. If Buyer has obtained the Closing shall not have occurredR&W Insurance Policy, a Buyer Indemnified Party may proceed against the R&W Insurance Policy for recovery of any such Losses described in the Buyer Indemnitees or immediately preceding sentence (subject to the Seller Indemnitees, as terms of the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverR&W Insurance Policy).
(b) Two years after the Closing Date (or, Notwithstanding anything in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwiseto the contrary, except Buyer understands, acknowledges and agrees that (i) each Seller’s maximum liability hereunder for Buyer Losses any indemnification claims under Section 8.02 (other than claims constituting Fraud) shall not exceed the net proceeds of the Purchase Price actually received by such Seller and (ii) the aggregate total liability of the Sellers hereunder for any indemnification claims under Section 8.02 (other than claims constituting Fraud) shall not, when aggregated with respect to which all other indemnification obligations hereunder, exceed the Buyer Indemnitees have given Seller written notice prior to such datePurchase Price.
(c) Two years after Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect minimum extent necessary to which remedy the Seller Indemnitees have given Buyer or Buyer Parent written notice prior breach that gives rise to such dateLoss.
(d) No Except as expressly provided in Section 8.02, no claim shall be brought or maintained by Buyer Losses or any Acquired Company, or their respective successors or permitted assigns against any officer, director, manager, equityholder or employee (present or former) of any Seller, or any officer, director, manager or employee (present or former) of any Acquired Company, and no recourse shall be brought or granted against any of them, by virtue of or based upon any alleged misrepresentation or inaccuracy in or breach of any of the representations or warranties of any Acquired Company or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee set forth or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only this Agreement or any Exhibit or Schedule hereto, except to the extent that the same shall have been the result of Fraud by any such breaches result in Buyer Losses in excess of Cdn$50,000 Person (and in the aggregate and then only to the extent event of such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstandingFraud, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) such recourse shall be deemed brought or granted solely against the Person or Persons committing such Fraud), and provided that, without limiting the foregoing, in no event shall Buyer, its successors or permitted assigns be entitled to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus seek any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average rescission of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether transactions consummated under this Agreement or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofother remedy at Law or in equity.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (CPG Newco LLC)
Certain Limitations. The liability (a) Neither Ceding Company shall be obligated to indemnify and hold harmless its Indemnitees for any claims or Indemnifiable Losses: (i) arising under Section 8.02(a)(i) or (iii), with respect to any claim (or series of Sellerrelated claims arising from the same underlying facts, Buyer events or Buyer Parentcircumstances), unless such claim (or series of related claims arising from the same underlying facts, events or circumstances) involves Indemnifiable Losses in excess of $[***] (the “Threshold Amount”) (nor shall any claim that does not exceed the Threshold Amount be applied to or considered for purposes of calculating the amount of Indemnifiable Losses for which such Ceding Company is responsible under clause (ii) below), (ii) arising under Section 8.02(a)(i) or (iii), unless and until the aggregate amount of all Indemnifiable Losses of the Indemnitees for such claims or Indemnifiable Losses arising under Section 8.02(a)(i) or (iii) exceeds (A) in the case of the Texas Ceding Company, $[***] and (B) in the case of the New York Ceding Company, $[***] (as applicable to each of the Texas Ceding Company and the New York Ceding Company, and without aggregation between the Texas Ceding Company and the New York Ceding Company, the “Deductible”), at which point each Ceding Company, as applicable, shall be liable to its Indemnitees for the value of the Indemnitees’ claims for such claims or Indemnifiable Losses arising under Section 8.02(a)(i) and (iii) that are in excess of the applicable Deductible, subject to the limitations set forth in this Article VIII; and (iii) arising under Section 8.02(a)(i), the maximum aggregate liability of each Ceding Company to Reinsurer Indemnified Persons for any and all Indemnifiable Losses pursuant to this Agreement for claims, and the maximum aggregate amount of all such Losses the Reinsurer Indemnified Persons shall be entitled to recover, pursuant to Section 8.02(a)(i) shall be (A) in the case of the Texas Ceding Company, $[***], and (B) in the case of the New York Ceding Company, $[***] (as applicable to each of the Texas Ceding Company and the New York Ceding Company, and without aggregation between the Texas Ceding Company and the New York Ceding Company, the “Cap”). The aggregate amount of all Losses for which each Ceding Company shall be liable, and the maximum aggregate amount of all such Losses the Reinsurer Indemnified Persons shall be entitled to recover, pursuant to Sections 8.02(a)(i), (ii), (iii) and (iv) shall not exceed (a) $[***] with respect to the Texas Ceding Company, and (b) $[***] with respect to the New York Ceding Company. The aggregate amount of all Losses for which each Ceding Company shall be liable, and the maximum aggregate amount of all such Losses the Reinsurer Indemnified Persons shall be entitled to recover, pursuant to Sections 8.02(a) shall not exceed (x) $[***] with respect to the Texas Ceding Company, and (y) $[***] with respect to the New York Ceding Company.
(b) The Reinsurer shall not be obligated to indemnify and hold harmless its Indemnitees for any claims or Indemnifiable Losses arising under Section 8.02(b)(i), (i) with respect to any claim (or series of related claims arising from the same underlying facts, events or circumstances), unless such claim (or series of related claims arising from the same underlying facts, events or circumstances) involves Indemnifiable Losses in excess of the Threshold Amount (nor shall any claim that does not exceed the Threshold Amount be applied to or considered for purposes of calculating the amount of Indemnifiable Losses for which the Reinsurer is responsible under clause (ii) below), (ii) unless and until the aggregate amount of all Indemnifiable Losses of the Indemnitees for such claims or Indemnifiable Losses arising under Section 8.02(b)(i) exceeds (A) in the case of the Texas Ceding Company, $[***] and (B) in the case of the New York Ceding Company, $[***] (as applicable to each of the Texas Ceding Company and the New York Ceding Company, and without aggregation between the Texas Ceding Company and the New York Ceding Company, the “Reinsurer Deductible”), at which point the Reinsurer shall be liable to its Indemnitees for the value of the Indemnitee’s claims for such claims or Indemnifiable Losses arising under Section 8.02(b)(i) that is in excess of the Reinsurer Deductible, subject to the limitations set forth in this Article VIII, and (iii) the maximum aggregate liability of the Reinsurer to Ceding Company Indemnified Persons for any and all Indemnifiable Losses pursuant to this Agreement for claims pursuant to Section 8.02(b)(i) shall be an amount equal to (A) in the case of the Texas Ceding Company, $[***], and (B) in the case of the New York Ceding Company, $[***] (as applicable to each of the Texas Ceding Company and the New York Ceding Company, and without aggregation between the Texas Ceding Company and the New York Ceding Company, the “Reinsurer Cap”). The aggregate amount of all Losses for which the Reinsurer shall be liable, and the maximum aggregate amount of all such Losses the Ceding Company Indemnified Persons shall be entitled to recover pursuant to Sections 8.02(b)(i) and (ii) shall not exceed $[***]. The aggregate amount of all Losses for which the Reinsurer shall be liable, and the maximum aggregate amount of all such Losses the Ceding Company Indemnified Persons shall be entitled to recover, pursuant to Sections 8.02(b) shall not exceed (x) $[***] with respect to the Texas Ceding Company, and (y) $[***] with respect to the New York Ceding Company.
(c) Each Indemnitee shall use reasonable best efforts to mitigate all Indemnifiable Losses for which indemnification may be sought hereunder, including by using reasonable best efforts to collect the maximum amount recoverable with respect thereto under any direct insurance coverage or other applicable source of recovery, net of the amount of the costs and expenses incurred by the Indemnitee in procuring such recovery; provided that this sentence shall not be applicable to any reinsurance, retrocession or similar arrangement entered into by the Reinsurer with regard to periods from and after the Effective Time.
(d) Any liability for indemnification under this Agreement shall be limited determined without duplication of recovery by the following:
(a) If the Closing shall not have occurred, recovery reason of the Buyer Indemnitees state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement. For the Seller Indemniteesavoidance of doubt, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, no Party shall be limited entitled to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses collect indemnification with respect to which the Buyer Indemnitees have given Seller written notice prior same Indemnifiable Loss more than once. Notwithstanding anything to such date.
(c) Two years after the Closing Datecontrary contained in this Agreement, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, Reinsurer Indemnified Person shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, entitled to indemnification with respect to any matter that is covered by insurance, particular Loss to the extent proceeds the same underlying subject matter of such insurance are paid.
(ithe Loss was specifically resolved in accordance with Section 2.05(f) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 or taken into account in the aggregate and then only to calculation of the extent such Buyer Losses exceed Cdn$50,000 Closing Tangible Book Value (as defined in the aggregate.
Membership Interest Purchase Agreement) in accordance with 2.04 of the Membership Interest Purchase Agreement, including any Taxes (ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 as defined in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregateMembership Interest Purchase Agreement) accrued therein.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Sources: Master Transaction Agreement (Corebridge Financial, Inc.)
Certain Limitations. The liability No indemnification under Section 10.02(i) shall be available unless and until the aggregate Damages of Sellerthe Indemnified Persons under such section exceed the Indemnification Deductible, Buyer in which case, indemnification under such section shall, subject to the other limitations set forth in this Agreement, be available for all Damages in excess of the Indemnification Deductible; provided, however, that the Indemnification Deductible shall not apply to Damages arising from (i) claims based on fraud or Buyer Parentknowing and intentional misrepresentation or (ii) breaches of a Fundamental Representation. Without limiting the foregoing, as applicablethe Indemnified Persons will not be entitled to indemnification under Section 10.02(i), for and no such claim by such Indemnified Persons will be so asserted, where the Damages relating to or resulting from such claim or other claims relating to or resulting from the same facts, events or circumstances are less than $25,000. No Indemnified Person shall be entitled to indemnification under this Agreement Article X for punitive damages (except to the extent awarded to a third party in any Third-Party Claim). Notwithstanding anything to the contrary contained in this Agreement, no Indemnified Person shall be limited by have any right to indemnification hereunder with respect to any Damage (i) to the following:
(a) If extent such Damage was expressly and specifically included as a liability or reserve on the Closing Statement or Closing Balance Sheet or was otherwise included in the calculation of the Merger Consideration and resulted in a dollar-for-dollar reduction in the Merger Consideration, provided, however, that for the avoidance of doubt, the foregoing shall not have occurredlimit any claim for Damages to the extent the Indemnified Person is not fully compensated for all Damages directly or indirectly arising out of or resulting from the claim giving rise to such Damages by a dollar-for-dollar reduction in the Merger Consideration, recovery of the Buyer Indemnitees (ii) attributable to taxable periods (or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(bportions thereof) Two years beginning after the Closing Date (or, in other than Damages relating to the case of a claim for breach of representations in Section 3.153.10(c), three years Section 3.10(e) or Section 3.10(n) or (iii) due to the unavailability in any taxable period (or portion thereof) beginning after the Closing DateDate of any net operating loss, and, in the case of credits or other Tax attribute from a claim for breach of Section 3.11, six years after taxable period (or portion thereof) ending on or prior to the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Sources: Merger Agreement (Stryker Corp)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, indemnification provided for claims under this Agreement in Section 7.2 shall be limited by subject to the followingfollowing limitations:
(a) If Except as otherwise provided herein, recovery from the Closing Holdback Shares shall be the sole and exclusive remedy under this Agreement for the matters set forth in Section 7.2(a)(i) (except to the extent arising out of breaches of Fundamental Representations). Notwithstanding any other provision contained herein, Buyer may seek recovery of Damages arising out of any fraud (as defined by common law) by any Indemnifying Party upon, against or to Buyer in connection with the execution, delivery and performance of this Agreement and the transactions contemplated hereby, without regard to such limitation.
(b) The Indemnifying Party shall not have occurredbe liable to the Indemnified Party for indemnification under Section 7.2(a)(i) or Section 7.2(b)(i) (in each case, recovery except to the extent arising out of the Buyer Indemnitees or the Seller Indemniteesbreaches of Fundamental Representations), as the case may be, until the aggregate amount of all Damages in respect of indemnification under Section 7.2(a)(i) or Section 7.2(b)(i) (in each case, except to the extent arising out of breaches of Fundamental Representations) exceeds $30,000 (the “Basket”), in which event the Indemnifying Party shall be required to pay or be liable for Damages from the first dollar. The aggregate amount of all Damages for which an Indemnifying Party shall be liable pursuant to Section 8.1 7.2(a) or Section 8.27.2(b), as the case may be, shall be limited not exceed the Exchange Consideration. Notwithstanding any other provision contained herein, Buyer may seek recovery of Damages arising out of any fraud by any Indemnifying Party upon, against or to actual out-of-pocket expenses Buyer in connection with the execution, delivery and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case performance of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwiseand the transactions contemplated hereby, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior without regard to such datelimitations.
(c) Two years Payments by an Indemnifying Party pursuant to Section 7.2(a) or Section 7.2(b), in respect of any Damages shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Closing DateIndemnified Party (or the Company) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, Buyer and Buyer Parent shall have no further obligations contribution or other similar agreements for any Damages prior to seeking indemnification under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such dateAgreement.
(d) No Buyer Losses or Seller Losses, as the case may be, Payments by an Indemnifying Party pursuant to Section 7.2 in respect of any Damages shall be asserted reduced by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect an amount equal to any matter that is covered by insurance, Tax benefit realized or reasonably expected to the extent proceeds be realized as a result of such insurance are paidDamage by the Indemnified Party.
(ie) Anything In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special, or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the contrary herein notwithstandingbreach or alleged breach of this Agreement, the representations and warranties contained in clauses (a) through (e) or diminution of Section 3.15 and clauses value or any damages based on any type of multiple.
(f) through (h) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Damages upon becoming aware of Section 3.15 (but any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent there was a violation of applicable Environmental Laws at necessary to remedy the time the event referred breach that gives rise to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregateLoss.
(iig) Anything to the contrary herein notwithstanding, Seller shall not be liable under this Article 7 for any Losses based upon or arising out of any inaccuracy in or breach of any of the representations and or warranties of Seller contained in clauses (f) through (h) this Agreement if Buyer had knowledge of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim inaccuracy or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) breach prior to the date hereofClosing.
Appears in 1 contract
Sources: Equity Exchange Agreement (Collective Audience, Inc.)
Certain Limitations. The liability It is the intention of Sellerthe parties hereto to conform strictly to all usury laws that are applicable to each such party, Buyer this Agreement and to each of the transactions contemplated by this Agreement (collectively, the "TRANSACTIONS"). Accordingly, notwithstanding anything to the contrary in this Agreement, or Buyer Parentany other document, certificate, instrument or agreement entered in connection with the Transactions (collectively the "TRANSACTION DOCUMENTS"), it is agreed as follows: (i) the aggregate of all consideration which constitutes interest under Applicable Usury Law (hereinafter defined) that is contracted for, taken, reserved, charged or received by any party under the Transaction Documents or otherwise in connection with the Transactions shall under no circumstances exceed the maximum amount of interest that would lawfully be charged by such party under Applicable Usury Law, (ii) in the event that maturity of any indebtedness evidenced by or payable pursuant to the Transaction Documents is accelerated for any reason, or in the event of any required or permitted payment or prepayment of all or any part of such indebtedness (including, without limitation, and if applicable, for claims under this Agreement shall be limited by the following:
(a) If the Closing shall not have occurredany required or permitted purchase of any Unit Premises, recovery Unit Improvements, Unit FF&E or Unit, or any required or permitted payment of the Buyer Indemnitees Unit Acquisition Cost), then such consideration that constitutes interest as to any such indebtedness under Applicable Usury Law may never include more than the maximum amount allowed by such Applicable Usury Law, and (iii) excess interest, if any, provided for in the Transaction Documents or otherwise in connection with the Seller Indemnitees, as the case may Transactions shall be, pursuant to in accordance with the following provisions of this Section 8.1 or Section 8.219, as the case may becancelled automatically and, if theretofore paid, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental credited by the recipient on the principal or consequential damages whatsoever.
(b) Two years after stated amount of the Closing Date affected indebtedness (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds that the principal or stated amount of such insurance are paid.
(i) Anything indebtedness shall have been or would thereby be paid in full, refunded by such recipient to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws party entitled thereto). If at the any time the event referred rate of interest (denominated as such) contractually called for in any Transaction Document (as the same may vary from time to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, time pursuant to the provisions terms of this Article 8such Transaction Document, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d"STATED RATE"), exceeds the maximum non-usurious rate of interest permitted by Applicable Usury Law (ethe "MAXIMUM RATE") and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average respect of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.indebtedness
Appears in 1 contract
Certain Limitations. The liability (a) No claim for indemnification may be asserted against a Party for breach of Sellerany representation, Buyer warranty, covenant or Buyer Parentagreement contained herein or in any of the other Transaction Documents, unless:
(i) written notice of such claim is received by Vendor or Purchaser, as applicable, for claims under this Agreement shall be limited by within thirty (30) days of the following:applicable Indemnified Party first becoming aware of the fact, matter or circumstance giving rise to such claim of indemnification, and, in any event, on or prior to the expiration date of any applicable Survival Period; and
(aii) If such written notice sets forth a description in reasonable detail the Closing shall not facts, matters and circumstances giving rise to such claim of indemnification which the Party submitting the claim for indemnification alleges to have occurred, recovery the estimated amount of Losses imposed, incurred, suffered or asserted in connection therewith or arising therefrom, any relevant time constraints relating thereto and, to the Buyer Indemnitees or the Seller Indemniteesextent practicable, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverother material details pertaining thereto.
(b) Two years Vendor shall not be liable under this Article 10 unless and until the cumulative aggregate amount of all Losses and Claims in respect thereof exceeds two million dollars ($2,000,000) (the "Deductible"), in which event Vendor shall only be liable for such amounts in excess of the Deductible; provided, however, that Vendor shall not be liable under this Article 10 for any individual Losses or Claims which do not exceed fifty thousand dollars ($50,000.00) ("De Minimis Losses"), which De Minimis Losses shall not be counted toward the Deductible and in no event shall Vendor have any liability hereunder for any such De Minimis Losses. Notwithstanding anything to the contrary contained in this Agreement, Vendor's aggregate liability for all Losses and Claims under this Article 10 shall not exceed fifty percent (50%) of the Purchase Price (the "Cap"). The Parties hereby acknowledge that the Cap shall be a single amount applicable to the aggregate amount of all claims for indemnification by Purchaser arising under this Article 10, and that any indemnification payments made by or on behalf of Vendor pursuant to this Article 10 shall reduce the remaining amounts available under the Cap for all such claims.
(c) Notwithstanding anything contained in this Agreement to the contrary, the limitations set out in this Section 9.4, including the Deductible, the De Minimis Losses and the Cap, shall not apply to any Losses arising from or relating to:
(i) any Taxes of the Corporation attributable to any Pre-Closing Tax Period;
(ii) any Taxes imposed on or by reason of the Pre-Closing Reorganization;
(iii) any payment or adjustment pursuant to Article 3; or
(iv) any failure to comply with section 116 of the Tax Act.
(d) Notwithstanding anything in this Agreement to the contrary, no Party nor any of its Non-Party Affiliates shall be liable to another Party or its Non-Party Affiliates pursuant to this Article 10 for special, punitive, exemplary, consequential or indirect damages, including loss of future revenue income or profits, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple, whether based on contract, tort, strict liability, other law or otherwise and whether or not arising from the other Party's or any of its Affiliates' sole, joint or concurrent negligence, strict liability or other fault, except to the extent one of the Parties hereto is held liable for such damages to a Third Party and such Party is entitled to be indemnified by any of the other Parties hereto pursuant to this Article 10.
(e) The amount of any Losses and Claims for which indemnification is provided under this Article 10 shall be computed net of:
(i) any insurance or other proceeds actually received by the Indemnified Party in connection with such Losses or Claims;
(ii) any Tax benefit realized or expected to be realized (including as a result of any deduction or credit) by the Indemnified Party or any of its Affiliates as a result of such Losses or Claims; and
(iii) any indemnity, contribution or other similar payment the Indemnified Party is entitled to receive from any Person with respect to such Losses or Claims. Each Indemnified Party agrees that it shall use its commercially reasonable efforts to pursue claims under any applicable insurance policies and against other Third Parties who may be responsible for Losses or Claims.
(f) No claim shall be made or be enforceable against Indemnifying Party under this Article 10 for any Losses or Claims arising out of:
(i) any fact, matter or circumstance known to the Indemnified Party at Closing and, without limiting the generality of the foregoing, Vendor shall not be liable to the extent that the relevant fact, matter or circumstance which causes any claim (and Vendor's and the Corporation's representations and warranties shall be qualified by any fact, matter or thing that) is disclosed:
(A) in any document, report or written or oral communication delivered to Purchaser, its Affiliates or their respective Representatives prior to the date hereof; or
(B) in a Schedule to this Agreement, the VDR or the Disclosure Letter.
(ii) any passing of, or any change in, on or after the Closing Date date of this Agreement, any applicable Law (including any passing of, or change in, applicable Law on or after the date of this Agreement which takes place retrospectively);
(iii) any act, default, omission, transaction, or arrangement by the Indemnified Party or any of its Non-Party Affiliates (or any of its or their respective Representatives or successors in title) on or after the date of this Agreement (except as expressly permitted or required pursuant to this Agreement);
(iv) fraud, bad faith, or gross negligence or willful misconduct of the Indemnified Party or any of its Non-Party Affiliates (or any of its or their respective Representatives or successors in title); or
(v) any matter or thing done, or omitted to be done, by the Indemnifying Parties pursuant to, or in compliance with, the terms of this Agreement or any other document to be entered into as part of the Contemplated Transactions, or otherwise at the Indemnified Party's request in writing or with the Indemnified Party's written consent.
(g) The amount of any payments made by or on behalf of a Party under this Article 10 shall be treated for all Tax purposes as an adjustment to the Purchase Price.
(h) Notwithstanding anything to the contrary in this Agreement, Purchaser and Vendor shall not be entitled to claim any Losses or Claims under Section 10.2 or Section 10.3 arising from claims based on the determination of Purchase Price, as it is the Parties' intent that the procedures set forth in Section 3.2 shall provide the sole and exclusive remedies for such claims and that Purchaser shall not have recourse pursuant to Section 10.2 for breaches of representations, warranties or covenants contained in this Agreement to the extent the subject matter giving rise to any such claim was settled pursuant to Section 3.2 or with respect to any matter to the extent that a specific accrual or reserve for the amount of such Loss or Claim was reflected in the case Financial Statements or the calculation of the Purchase Price (including the adjustments pursuant to Article 3).
(i) Notwithstanding anything to the contrary in this Article 10, Vendor shall not be liable under this Article 10 in respect of any Losses or Claims on account of Taxes (i) in respect of any Pre-Closing Tax Period to the extent such Taxes reduced the Purchase Price, (ii) relating to the adjustment, disallowance, use or availability of Tax Attributes, or any Liability for Taxes in respect of a claim for breach of Section 3.15, three years taxable period (or portion thereof) that commences on or after the Closing Date, andincluding as a result of the inability to utilize, or other limitation in the case respect of, any such Tax Attributes or (iii) related to an action of a claim for breach Purchaser in violation of Section 3.11, six years after the Closing Date8.3(c), Seller .
(j) No Indemnified Party shall have no further obligations be entitled to double recovery for any Loss or Claim under this Article 89 even though such Loss or Claim may have resulted from the breach or inaccuracy of more than one of the representations, warranties, covenants and obligations of the Indemnifying Parties under this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such dateAgreement.
(ck) Two years after the Closing Date, Buyer and Buyer Parent No Indemnifying Party shall have no further obligations be liable under this Article 8, this Agreement or otherwise, except for Seller Losses with 10 in respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer of any Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee Claims that are contingent unless and until such contingent Losses or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed Claims cease to be breached only to the extent that any such breaches result contingent and liability, costs, expenses or damages are actually suffered, incurred or accrued in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days connection therewith (whether or not any trades payment is then due); provided that the Indemnified Party may deliver a written notice of Buyer Parent Common Stock occur on claim in respect of any such day) contingent Losses to the applicable Indemnifying Party prior to the date hereofend of the applicable Survival Period, if any, for indemnification set forth in Section 10.1 with respect to such claim, in which case such claim will not be barred by the expiration of the relevant Survival Period and will survive until finally resolved.
(l) Upon payment of any Losses or Claims with respect to a claim pursuant to this Article 10, the Indemnifying Party shall be subrogated to the extent of such payment (and to recover costs or expenses incurred by the Indemnifying Party in enforcing such recovery rights against such Person) to the rights of the Indemnified Party against any Person with respect to the subject matter of such claim for indemnification. The Indemnified Party shall assign such rights to and otherwise reasonably cooperate with the Indemnifying Party, at the cost and expense of Indemnifying Party, to pursue any claims against or otherwise recover amounts from, any Person liable or responsible for any Losses for which indemnification has been received pursuant to this Agreement.
(m) Nothing in this Agreement shall in any way restrict or limit the general obligation at law of a Party to mitigate any Losses that it may suffer or incur by reason of the breach by another Party of any representation, warranty or covenant of that other Party under this Agreement. If any Losses can be reduced by any recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by or against any other Person, an Indemnified Party shall take all commercially reasonable steps to enforce such recovery, settlement or payment. If the Indemnified Party fails to make all commercially reasonable efforts to mitigate any such Losses, then the applicable Indemnifying Parties shall not be required to indemnify the Indemnified Party for the Losses that could have been avoided if the Indemnified Party had made such efforts.
Appears in 1 contract
Sources: Share Purchase and Sale Agreement (Barnwell Industries Inc)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If Notwithstanding the Closing other provisions of this Article VIII, Seller shall not have occurredany indemnification obligations for Losses under Section 8.01(a)(iv), recovery (i) for any individual claim (or, if applicable, any series of related claims arising from the Buyer Indemnitees same or substantially similar facts or circumstances) where the Loss relating thereto is less than $25,000 (the “De Minimis Amount”) and (ii) unless and until the aggregate amount of Losses for claims where the De Minimis Amount does not apply exceeds $500,000 (the “Threshold Amount”), in which event Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited required to actual out-of-pocket expenses pay the amount of such Losses that exceed the Threshold Amount; provided, however, that the De Minimis Amount and the Threshold Amount shall in no event include not apply to any special, indirect, incidental Losses resulting from a breach of a Fundamental Representation or consequential damages whatsoeverany Losses arising out of Fraud or willful misconduct or a breach of Section 4.13.
(b) Two years after the Closing Date (or, in the case Except for Losses resulting from a breach of a claim for Fundamental Representation, or any Losses arising out of Fraud or willful misconduct or a breach of Section 3.154.13, three years after the Closing Datemaximum amount of Losses for which Seller or Purchaser, andas applicable, in the case of a claim for breach of shall be liable under Section 3.11, six years after the Closing Date8.01(a)(iv) or Section 8.02(a)(iii), Seller as applicable, shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such datenot exceed $12,500,000.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under For purposes of this Article 8VIII, (i) any breach or inaccuracy in any representations, warranties or covenants contained in this Agreement and (ii) the calculation of the obligations and Losses associated therewith shall, in each case, be determined without regard to any dollar threshold, materiality, “Material Adverse Effect” or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such dateother similar qualifiers.
(d) No Buyer Losses An Indemnifying Party shall have no liability or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, obligation to indemnify any Indemnified Party with respect to the breach of any matter that is covered by insurancerepresentation, warranty, covenant or agreement based on any facts or circumstances known to Purchaser or any other Purchaser Indemnitee, including any information provided to Purchaser prior to the extent proceeds of such insurance are paid.
(i) Anything Effective Date. No Indemnified Party shall be entitled to recover the same or duplicative damages with respect to the contrary herein notwithstandingsame breach from the Indemnifying Party under more than one of this Agreement and the Transaction Documents, it being agreed that, for the representations and warranties contained in clauses (a) through (e) purposes of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) this sentence, each Party shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate have made and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregatereceived all payments made and received by its Affiliates.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Assertio Therapeutics, Inc)
Certain Limitations. The liability issuance and sale of Sellerthe Shares issuable pursuant to the applicable VWAP Purchase Notice (a) shall not exceed the applicable VWAP Purchase Maximum Amount, Buyer (b) shall not cause the Aggregate Limit or Buyer Parentthe Beneficial Ownership Limitation to be exceeded, as applicableand (c) when such Shares are aggregated with (1) all Initial Commitment Shares, for claims (2) all Initial Purchase Shares, (3) all Additional Commitment Shares issued or issuable by the Company to the Investor under this Agreement (for purposes of this clause (c) of this Section 7.3(viii), if the applicable VWAP Purchase Condition Satisfaction Time for the applicable VWAP Purchase occurs prior to the Additional Commitment Share Trigger Date, the Company shall be limited assume the maximum of 200,000 Additional Commitment Shares are then issuable to the Investor under this Agreement and shall aggregate all such 200,000 Additional Commitment Shares with all other Securities that have been issued by the following:
Company pursuant to this Agreement prior to such VWAP Purchase Condition Satisfaction Time for such applicable VWAP Purchase), and (a4) If all Shares that have been issued or are issuable by the Closing Company pursuant to all VWAP Purchase Notices delivered prior to the applicable VWAP Purchase Condition Satisfaction Time for the applicable VWAP Purchase, shall not have occurredcause the Exchange Cap (to the extent applicable under Section 3.3) to be exceeded, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, unless in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
clause (c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e7.3(viii)) shall be deemed to be breached only to , the extent that any such breaches result in Buyer Losses Company’s stockholders have theretofore approved the issuance of Common Stock under this Agreement in excess of Cdn$30,000 the Exchange Cap in accordance with the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average applicable rules of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofTrading Market.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Biohitech Global, Inc.)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If No claim, or recovery in respect thereof, for breach of any representation or warranty (except representations and warranties contained in Section 5.14) shall be allowed (i) unless the Closing amount recoverable in respect of each claim or group of related claims exceeds Forty Thousand United States dollars (US $40,000) (or the foreign currency equivalent thereof) and the amount recoverable in respect of all such qualifying claims exceeds Twenty Million United States dollars (US $20,000,000) in the aggregate (or the foreign currency equivalent thereof), in which case the liability of the Indemnifying Party shall not have occurredbe restricted to merely the excess over the threshold amounts referred to above; and (ii) with respect to an obligation which is contingent, recovery of unless and until the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverobligation becomes actual.
(b) Two years after the Closing Date The amounts which, but for this Paragraph (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Dateb), Seller shall have no further obligations would be recoverable under this Article 810, this Agreement shall be reduced to the extent of any insurance proceeds recoverable in respect thereof by the Indemnified Party or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such dateany of its Affiliates under any policy of insurance carried by any of them.
(c) Two years The Indemnifying Party shall have no liability hereunder for a breach of any representation or warranty to the extent that:
(i) in the case of ABB, a specific provision or reserve in respect of the relevant Losses was made in the Financial Statements or such Losses were deducted in the calculation of the Actual Equity;
(ii) in the case of ABB, any specific provision or reserve made as aforesaid proves insufficient only by reason of any reduction of Tax allowances or reliefs after the Closing Date;
(iii) such Losses would not have arisen but for any alteration or repeal or enactment of any Applicable Law after the Closing Date;
(iv) such Losses would not have arisen but for any change in the accounting policies, Buyer and Buyer Parent shall practices or procedures adopted by the Indemnified Party and/or its Affiliates or for any other act or omission by any of them after the Closing Date; or
(v) such Losses would not have no further obligations under this Article 8, this Agreement arisen but for a failure by the Indemnified Party or otherwise, except for Seller Losses with respect any of its Affiliates to which take reasonable steps to mitigate the Seller Indemnitees have given Buyer or Buyer Parent written notice prior effect of the circumstances giving rise to such datethe claim.
(d) No Buyer Without limiting either party's rights under Article 8, the Indemnifying Party shall have no liability hereunder for a breach of any representation or warranty if the matter in question is subject to any indemnity (other than the indemnity referred to in clause (i) of Section 10.1) given by the Indemnifying Party in this Agreement, whether or not, under such indemnity, a portion of the Losses or Seller Losses, as is to be absorbed by the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, Indemnified Party.
(e) Except with respect to any matter that is covered by insurance, claims relating to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstandingTaxes, the representations and warranties contained in clauses (a) through (e) aggregate liability of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject Indemnifying Party for all claims pursuant to clause (i) of this Section 8.3(e)) 10.1 shall be deemed limited to be breached only an aggregate amount equal to seventy percent (70%) of the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregatePurchase Price.
(iiif) No special, indirect, consequential or punitive damages or losses of any kind (including but not limited to loss of profits, loss of revenue, loss of use, loss of production, costs of capital or costs connected with the interruption of operation), regardless of the legal theory on which the claim or claims is based, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregaterecoverable hereunder.
(ivg) If a failure by the Indemnifying Party duly to perform its obligations under this Agreement is capable of being remedied, the Indemnified Party shall not be entitled to compensation for any breach unless the Indemnifying Party is given written notice of such failure and either (i) fails to commence remedial action within thirty (30) days of such notice, (ii) fails to pursue such action diligently at all times thereafter until the original failure has been remedied, or (iii) fails to remedy the original failure within one hundred eighty (180) days after such notice.
(h) The aggregate amount of Buyer Indemnified Party shall use all reasonable efforts to pursue any and all rights to reimbursement, recovery or indemnification with respect to all Losses recoverable for which it is entitled to indemnification under this Article 10 pursuant to the provisions of this Article 8 any Contract, insurance policy or arrangement with any Person (other than Affiliates of the Indemnified Party) prior to bringing any claim against the Indemnifying Party under this Article 10. The Indemnified Party shall not be required to expend any material sum or commence any litigation or arbitration proceeding unless the Indemnifying Party expressly agrees to indemnify the Indemnified Party for such expenditure and any Losses incurred by the Indemnified Party in such litigation or arbitration.
(i) Nothing in Section 10.3(a)(ii), (g) or (h) shall preclude the Indemnified Party from giving the Indemnifying Party notice of any claim in accordance with Section 10.7, in which case such claim, if such notice is given within the applicable time period provided for in Section 10.7, shall not be time-barred under that Section; PROVIDED that, with respect to Section 8.1(d10.3(a)(ii), any claim pursuant thereto shall be time-barred ninety (e90) days after the date that the relevant obligation becomes actual, unless prior to the expiration of such ninety (90) day period the Indemnified Party shall have notified the Indemnifying Party of such fact and shall have demanded payment of such claims; and PROVIDED FURTHER that with respect to Sections 10.3(g) and (fh), such tolling period shall terminate (i) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes case of this Section 8.3(e)(ii10.3(g), "Purchase Price Indemnification Amount" when the Indemnifying Party shall mean have notified the sum Indemnified Party that it has ceased pursuit of (x) Cdn$13,062,741 (plus or minus any adjustment to a remedy of the Note as contemplated by alleged breach in question or, if earlier, the expiration of the 180-day period provided for in such Section 1.4(e)) and (yii) in the product case of 1,000,000 multiplied by Section 10.3(h), when the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether Indemnified Party shall have ceased pursuing rights to reimbursement, recovery or not any trades of Buyer Parent Common Stock occur on any alternative indemnification pursuant to such day) prior to the date hereofSection.
Appears in 1 contract
Sources: Purchase Agreement (Abb LTD)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything The representations, warranties and covenants of the Sellers, and any Purchaser Indemnified Party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the contrary herein notwithstanding, Purchaser Indemnified Party or by reason of the representations and warranties contained in clauses (a) through (e) fact that the Purchaser Indemnified Party or any of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent its representatives knew or should have known that any such breaches result representation or warranty is, was or might be inaccurate or by reason of the Purchaser Indemnified Party’s waiver of any condition set forth in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregateArticle IX.
(ii) Anything For the purpose of determining whether there has been an inaccuracy in, or breach of, any representation, warranty, covenant, or agreement made by the Sellers hereunder, and for the purpose of determining the amount of Losses that are the subject matter of a claim for indemnification by any Purchaser Indemnified Party hereunder, each representation, warranty, covenant, and agreement made by the Sellers hereunder shall be read without regard and without giving effect to the contrary herein notwithstandingterm(s) “material”, the representations “material adverse effect”, “in all material respects”, or similar qualifiers as if such words and warranties contained in clauses surrounding related words (fe.g., “reasonably be expected to”, “could have”, “would have”, and similar restrictions and qualifiers) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any were deleted from such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregaterepresentation, warranty, covenant, or agreement.
(iii) No claim The indemnification provided for in Section 7.02(b)(i) or claims Section 7.02(c)(i) shall not apply unless and until (i) the aggregate Losses finally determined to be asserted by due for which one or more Purchaser Indemnified Party (with respect to Losses under Section 7.02(b)(i)) or Seller Indemnified Party (with respect to Losses under Section 7.02(c)(i)) seeks or has sought indemnification hereunder exceeds a Buyer Indemnitee cumulative aggregate amount of $25,000 (the “Basket”), in which event the Purchaser Indemnified Party or a Seller IndemniteeIndemnified Party, as applicable, pursuant to the provisions of this Article 8, unless shall be indemnified for the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as in excess of the case may be, exceed Cdn$350,000 in the aggregateBasket.
(iv) The aggregate maximum amount of Buyer Losses recoverable that the Purchaser Indemnified Parties may recover with respect to (A) Section 7.02(b)(i) (for all representations other than Seller Fundamental Reps) shall not exceed $418,400 (or, if the Milestone Stock is issued to the Sellers, then such limit shall increase to $618,400) and (B) Section 7.02(b)(i) (for all representations, including Seller Fundamental Reps) and Section 7.02(b)(ii), in the aggregate, shall not exceed Four Million Dollars ($4,000,000). The maximum amount of Losses that the Seller Indemnified Parties may recover with respect to (A) Section 7.02(c)(i) shall not exceed $250,000 and (B) Section 7.02(c)(i) and Section 7.02(c)(ii), in the aggregate, shall not exceed Four Million Dollars ($4,000,000).
(v) The limitations on indemnification set forth in Sections 7.02(d)(iii) and 7.02(d)(iv) shall not apply in the event of Fraud by the indemnifying Party.
(vi) Notwithstanding anything to the contrary elsewhere in this Agreement, no Party shall be liable to any Purchaser Indemnified Party or Seller Indemnified Party, as applicable, for Losses pursuant to this ARTICLE VII to the extent such Losses constitute or include lost profits (other than any such lost profits Losses sought in connection with any breach of the Sellers’ covenants set forth in Section 6.07) or any damages based upon a multiple or punitive or exemplary damages, except, solely in the case of punitive or exemplary damages, to the extent payable to a Third Party in a Third Party Claim for which indemnification is otherwise available pursuant to the provisions terms of this Article 8 Agreement.
(vii) All indemnification amounts otherwise payable pursuant to this ARTICLE VII shall be computed net of any insurance proceeds actually received by an Indemnified Party (net of any increases in premiums attributable thereto and cost of collection). If an Indemnified Party or other than with respect Third Party subsequently receives such insurance proceeds after payment by the Indemnitor of any amount related to Section 8.1(dsuch claim, then the Indemnified Party shall promptly pay to or at the direction of the Indemnitor the amount of such insurance proceeds subsequently received (net of all related costs, expenses and other Losses), (e) and (f)) by all Buyer Indemnitees shall be limited but not more, in the aggregate to aggregate, than the Purchase Price Indemnification Amount. For purposes amount of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied Losses paid by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofIndemnitor.
Appears in 1 contract
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims party making a claim under this Agreement ARTICLE VI is referred to as the “Indemnified Party,” and the party against whom such claims are asserted under this ARTICLE VI is referred to as the “Indemnifying Party.” The indemnification provided for in Section 6.02 and Section 6.03 shall be limited by subject to the following:following limitations: CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.
(a) If the Closing The Indemnifying Party shall not have occurred, recovery of be liable to the Buyer Indemnitees Indemnified Party for indemnification under Section 6.02(a) or the Seller IndemniteesSection 6.03(a), as the case may be, pursuant to until the aggregate amount of all Losses in respect of indemnification under Section 8.1 6.02(a) or Section 8.26.03(a) exceeds $[***] (the “Deductible”), as in which event the case may be, Indemnifying Party shall only be limited required to actual out-of-pocket expenses and shall pay or be liable for Losses in no event include any special, indirect, incidental or consequential damages whatsoeverexcess of the Deductible.
(b) Two years after the Closing Date (or, in the case The aggregate amount of all Losses for which a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect be liable pursuant to which Section 6.02(a) shall not exceed [***] of the Buyer Indemnitees have given Seller written notice prior to such datePurchase Price (the “Cap”).
(c) Two years after In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special, or indirect damages, or for any damages based on loss of future revenue or income, loss of business reputation or opportunity relating to the Closing Datebreach or alleged breach of this Agreement, Buyer and Buyer Parent shall have no further obligations under this Article 8or diminution of value or any damages based on any type of multiple, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date[***].
(d) No [***].
(e) Seller shall not be liable under this ARTICLE VI for any Losses based upon or arising out of any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement if Buyer Losses [***] knowledge of such inaccuracy or Seller breach prior to the Closing. For purposes of calculating the Deductible or the Cap with respect to any Losses, as the case may be, shall be asserted by a Buyer Indemnitee Deductible or a Seller IndemniteeCap, as applicable, with respect to any matter that will be calculated as of the date on which such Loss is covered payable by insurance, the Indemnifying Party to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations Indemnified Party and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For for purposes of this Section 8.3(e)(ii), "such calculation will be equal to the aggregate of the Initial Purchase Price Indemnification Amount" shall mean and the sum of Milestone Payment paid or payable by Buyer to Seller during the period from the Closing Date until (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (yincluding) the product of 1,000,000 multiplied by the average of the closing prices reported date on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any which such day) prior to the date hereofLoss is payable; [***].
Appears in 1 contract
Certain Limitations. The liability It is the explicit intent and understanding of Sellereach of the parties hereto that neither party nor any of its affiliates, Buyer representatives or Buyer Parentagents is making any representation or warranty whatsoever, as applicableoral or written, for claims under this Agreement shall be limited express or implied, other than those set forth in Sections 2 and 3 and neither party is relying on any statement, representation or warranty, oral or written, express or implied, made by the following:
(a) If other party or such other party's affiliates, representatives or agents, including, without limitation, any such statement, representation or warranty contained in any offering or descriptive memorandum or any information, document or material made available to the Closing shall not have occurred, recovery of the Buyer Indemnitees Purchaser or the Seller Indemniteesin certain "data rooms", as management presentations or any other form in expectation of the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwisetransactions contemplated hereby, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained set forth in clauses (a) through (e) of Section 3.15 such Sections 2 and clauses (f) through (h) of Section 3.15 (but only 3. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE PARTIES EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY OR REPRESENTATION AS TO CONDITION, MERCHANTABILITY OR SUITABILITY AS TO ANY OF THE ASSETS OF THE BUSINESS OF THE COMPANY OR OF THE PURCHASER AND, EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD THAT THE PURCHASER TAKES THE ASSETS OF THE BUSINESS "AS IS" AND "WHERE IS" AND THAT THE SELLER TAKES THE COMMON STOCK CONSIDERATION WITHOUT ADDITIONAL REPRESENTATIONS AND WARRANTIES. The parties agree that this is an arm's length transaction in which the parties' undertakings and obligations are limited to the extent there was performance of their obligations under this Agreement. The Seller and the Purchaser each acknowledges that it or its affiliate is a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 participant in the aggregate Common Operation and then that it is a sophisticated investor, and the Purchaser acknowledges that it has undertaken a full investigation of the business of the Company, and that it has only to a contractual relationship with the extent such Buyer Losses exceed Cdn$50,000 in Seller, based solely on the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) terms of this Section 8.3(e)) shall be deemed to be breached only to Agreement, and that there is no special relationship of trust or reliance between the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in Purchaser and the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregateSeller.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (Homestake Mining Co /De/)
Certain Limitations. The liability Notwithstanding any other provision of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the followingArticle 8:
(a) If Notwithstanding the fact that the Parent Indemnitees may have the right to assert claims for indemnification under or in respect of more than one provision of this Agreement in respect to any fact, event, condition or circumstance, the Parent Indemnitees shall not be entitled to recover the amount of any Losses more than once under this Agreement in respect of such fact, event, condition or circumstance, and the Parent Indemnitees shall not be entitled to indemnification for any item to the extent that the amount of the Losses incurred with respect to such item is included as a liability on the Closing shall not have occurred, recovery Consideration Schedule and taken into account in the calculation of the Buyer Indemnitees Consideration Adjustment Amount, or the Seller Indemnitees, as the case may be, Parent has otherwise been fully compensated on a dollar‑for‑dollar basis for such Losses pursuant to the adjustments set forth in Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever2.6.
(b) Two years after Subject to the Closing Date (or, limitation set forth in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date8.4(d), Seller the aggregate liability of the Escrow Participants pursuant to Section 8.2(h) shall have not exceed (i) $2,000,000 minus (ii) the aggregate policy limit under the D&O Tail Policy, but in no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such dateevent less than zero ($0).
(c) Two years after The representations, warranties and covenants of the Closing DateCompany, Buyer and Buyer the Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses Indemnitees' right to indemnification with respect to which thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of Parent or any of its officers, directors, employees, counsel or other representatives or by reason of the Seller Indemnitees fact that Parent or any of its officers, directors, employees, counsel or other representatives knew or should have given Buyer known that any such representation or Buyer warranty is, was or might be inaccurate or that covenant was or might have been breached Parent written notice prior to such dateor any of its officers, directors, employees, counsel or other representatives.
(d) No Buyer Losses or Seller Losses, as In no event shall any Escrow Participant be obligated to indemnify the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
Parent Indemnitees (i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (aunder Section 8.2(a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to a breach of a Fundamental Representation or a Tax Representation, in any amount in excess of such Escrow Participant's Indemnification Pro-Rata Portion and from any source other than the Escrow Fund, and (ii) under (A) Section 8.1(d)8.2(a) with respect to a breach of any Fundamental Representations or Tax Representations, (eB) under Section 8.2(b)–8.2(g) or otherwise in connection with this Agreement and (f)C) for fraud or intentional misrepresentation by all Buyer Indemnitees shall be limited or on behalf of the Company, for any Escrow Participant, in any amount in excess of the aggregate to Merger Consideration actually received by such Escrow Participant less the Purchase Price Indemnification Amountamount of Taxes actually paid by such Escrow Participant in respect of the Merger Consideration. For purposes Notwithstanding any provision of this Section 8.3(e)(ii)Agreement, "Purchase Price Indemnification Amount" nothing in this Agreement shall mean limit the sum liability of (x) Cdn$13,062,741 (plus a Company Shareholder for fraud or minus any adjustment to the Note as contemplated intentional misrepresentation by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofCompany Shareholder.
Appears in 1 contract
Sources: Merger Agreement (Aerocentury Corp)
Certain Limitations. The liability provisions of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement Section 4.10 shall be limited by subject to the following:
(a) If Each Lender that desires compensation or indemnification under Section 4.10 shall notify the Borrowers through the Collateral Agent of any event occurring after the Closing shall not have occurredDate entitling such Lender to compensation or indemnification under any of such Sections as promptly as practicable, recovery but in any event within ninety (90) days after the occurrence of the Buyer Indemnitees event giving rise thereto; provided that (i) if any such Lender fails to give such notice within ninety (90) days after the occurrence of such an event, such Lender shall only be entitled to compensation or indemnification in respect of such event accruing under Section 4.10 with respect to the Seller Indemnitees, as period from and after the case may be, pursuant date ninety (90) days prior to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverdate that such Lender does give notice.
(b) Two years after Any notice given by a Lender pursuant to clause (a) preceding shall certify (i) that one of the Closing Date events described in Section 4.10 has occurred, describing in reasonable detail the nature of such event, (orii) as to the increased cost, reduced amount receivable, or loss or expense resulting from such event, and (iii) as to the additional amount demanded by such Lender, attaching a reasonably detailed explanation of the calculation thereof. Such a certificate as to any compensation or indemnification payable pursuant to Section 4.10, submitted by such Lender through the Collateral Agent to the Borrowers, shall be conclusive and binding on the parties hereto in the case absence of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such datemanifest error.
(c) Two years If any Lender requests compensation or indemnification from the Borrowers under Section 4.10, the Borrowers may, at their option, within fifteen (15) days after receipt by the Closing DateBorrowers of written demand from the affected Lender for payment of such compensation or indemnification, Buyer notify the Collateral Agent and Buyer Parent such affected Lender of the Borrowers' intention to replace the affected Lender. So long as no Event of Default shall have no further occurred and be continuing, the Borrowers may obtain, at the Borrowers' expense, a replacement Lender (which must be an Eligible Assignee) for the affected Lender. If the Borrowers obtain a replacement Lender within ninety (90) days following notice of their intention to do so, the affected Lender must sell and assign its loans and obligations and any Commitments to such replacement Lender pursuant to Section 13.3, for an amount equal to the principal balance of all Loans held by the affected Lender and all accrued interest and Fees with respect thereto through the date of such sale, provided that the Borrowers shall have paid to such affected Lender the compensation or indemnification that it is entitled to receive under Section 4.10, through the date of such sale and assignment. Notwithstanding the foregoing, the Borrowers shall not have the right to obtain a replacement Lender if the affected Lender rescinds its demand for such compensation or indemnification within fifteen (15) days following its receipt of the Borrowers' notice of intention to replace such affected Lender. Additionally, if the Borrowers give a notice to the Collateral Agent and the affected Lender of the Borrowers' intention to replace such affected Lender and the Borrowers do not so replace such affected Lender within ninety (90) days thereafter, the Borrowers' rights under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred4.13(c) shall be deemed to be breached only to terminate and the extent that any Borrowers shall promptly pay all compensation or indemnification demanded by such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, affected Lender pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregateSection 4.10.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Sources: Credit Agreement (Friedmans Inc)
Certain Limitations. The Notwithstanding anything to the contrary in this Agreement and without limitation upon the limitations elsewhere in this Agreement: (1) Seller shall have no liability (and Buyer shall make no claim against Seller) for a breach of Seller, Buyer any representation or Buyer Parent, as applicable, for claims warranty or any other obligation of Seller under this Agreement shall be limited or any document executed by the following:
Seller in connection with this Agreement unless (a) If the Closing shall valid claims for all such breaches collectively aggregate to more than Seventy-five Thousand ($75,000), and (b) the liability of Seller under this Agreement and such documents does not have occurredexceed, recovery of in the Buyer Indemnitees aggregate, the amount equal to One Million Nine Hundred Thousand Dollars ($1,900,000) (the “Cap”) (it being understood that, notwithstanding anything to the contrary in this Agreement or any other document, Seller’s liability under this Agreement and the documents executed by Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and in connection herewith shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (orexceed, in the case aggregate, the amount of a claim the Cap); and (2) in no event shall Seller be liable for breach any consequential or punitive damages; provided, however, the Cap and Survival Period shall not apply to the post-closing reproration obligations of Buyer under Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date6D(2), Seller shall have no further Seller’s obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which real estate taxes under Section 6(D)(1(a) hereof, and fees and costs of enforcement of the Buyer Indemnitees have given Agreement. Seller written notice prior shall maintain (i) during the Survival Period, a liquid net worth equal to such date.
at least the amount of the Cap and (cii) Two years after the Closing DateSurvival Period, a liquid net worth equal to at least the lesser of the amount of the Cap or the aggregate amount claimed by Buyer and Buyer Parent in Breach Notices delivered to Seller during the Survival Period; provided, however, that Seller shall not have no any further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses pursuant to clause (ii) if Buyer has not commenced litigation with respect to which such claims within thirty (30) days after the Seller Indemnitees expiration of the Survival Period or from and after such time as all such claims have given Buyer been settled or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted finally determined by a Buyer Indemnitee or a court of competent jurisdiction. The obligations of Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of under this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amountsurvive Closing. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.E.
Appears in 1 contract
Sources: Purchase Agreement
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, indemnification provided for claims under this Agreement in Section 11.02 and Section 11.03 shall be limited by subject to the followingfollowing limitations:
(a) If the Closing Seller shall not have occurredbe liable to the Purchaser Indemnitees for indemnification under Section 11.02(a)(i) until the aggregate amount of all Losses in respect of indemnification under Section 11.02(a)(i) exceeds six hundred thousand dollars ($600,000) (the “Basket”), recovery in which event Seller shall be required to pay or be liable only for such Losses that exceed the Basket. The aggregate amount of the Buyer Indemnitees or the all Losses for which Seller Indemnitees, as the case may be, shall be liable pursuant to Section 8.1 or Section 8.2, as the case may be, 11.02(a)(i) shall be limited to actual out-of-pocket expenses and shall in not exceed six million dollars ($6,000,000). In no event include any special, indirect, incidental or consequential damages whatsoeverwill Seller’s liability pursuant to this Article XI exceed the Total Equity Value.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have In no further obligations under event will Purchaser’s liability pursuant to this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which XI exceed the Buyer Indemnitees have given Seller written notice prior to such dateTotal Equity Value.
(c) Two years after Notwithstanding the Closing Dateforegoing, Buyer the limitations set forth in Section 11.04(a) and Buyer Parent Section 11.04(b) shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller not apply to Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such datearising from Fraud.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(iiArticle XI (including for purposes of determining the existence of any inaccuracy in, or breach of, any representation or warranty and for calculating the amount of any Loss with respect thereto), "Purchase Price Indemnification Amount" any inaccuracy in or breach of any representation or warranty shall mean the sum be determined without regard to any materiality, material adverse effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(e) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special, or indirect damages, including loss of (x) Cdn$13,062,741 (plus future revenue or minus any adjustment income, loss of business reputation or opportunity relating to the Note as contemplated by Section 1.4(e)) and (y) the product breach or alleged breach of 1,000,000 multiplied by the average this Agreement, or diminution of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether value or not any trades of Buyer Parent Common Stock occur damages based on any such daytype of multiple.
(f) prior Each of Seller and Purchaser shall use commercially reasonable efforts to take, and cause its Affiliates to take, all steps required under applicable Law in respect of mitigating any Losses that are indemnifiable pursuant to the date hereofterms of this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ginkgo Bioworks Holdings, Inc.)
Certain Limitations. The liability of Seller, Buyer the Seller or Buyer Parentthe Buyer, as applicable, for claims under this Agreement shall be limited by the following:
(a) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include At any special, indirect, incidental or consequential damages whatsoever.
(b) Two years time after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Survival Date, and, in (i) the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise10 for breaches of representations and warranties of the Seller, except for Buyer Losses Damages with respect to which the Buyer Indemnitees have Indemnitee has given the Seller written notice prior to such date.
date in accordance with Section 10.4 and (cii) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise10 for breaches of representations and warranties of the Buyer, except for Seller Losses Damages with respect to which the Seller Indemnitees have Indemnitee has given the Buyer or Buyer Parent written notice prior to such datedate in accordance with Section 10.4.
(db) No Buyer Losses or Seller Losses, as the case may be, The amount of Damages otherwise recoverable under this Article 10 shall be asserted by a Buyer (i) reduced to the extent to which any Federal, state, local or foreign tax liabilities of the Seller Indemnitee or a Seller the Buyer Indemnitee, as applicable, with or any of its Affiliates is decreased by reason of any Damage in respect to any matter that is covered by insurance, to the extent proceeds of which such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Seller Indemnitee or a Seller Buyer Indemnitee, as applicable, pursuant shall be entitled to the provisions of indemnity under this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate Agreement and then only (ii) increased to the extent such to which any Federal, state, local or foreign tax liabilities are incurred by the Seller Indemnitee or the Buyer Losses or Seller LossesIndemnitee, as the case may beapplicable, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount or any of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note its Affiliates as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average a result of the closing prices reported on receipt of the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on indemnity so that, after any such day) prior to decrease or increase, the date hereofposition of the indemnified party is the same on an after tax basis as it would have been had there been neither any tax benefit nor any tax cost associated with either the Damage or the indemnity.
Appears in 1 contract
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by Notwithstanding anything in Section 2 hereof to the followingcontrary:
(a) If the Closing Guarantor shall not have occurred, recovery of be required by this Guarantee to perform any Guaranteed Obligation or undertaking if the Buyer Indemnitees performance thereof is illegal or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
impossible under Law; (b) Two years after the Closing Date (or, Guarantor shall not be required to perform any Guaranteed Obligation while the performance of such Guaranteed Obligation is being disputed in good faith by the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect Person required to which the Buyer Indemnitees have given Seller written notice prior to perform such date.Guaranteed Obligation;
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses Guarantor’s liability hereunder with respect to which any Guaranteed Obligation shall not exceed the Seller Indemnitees have given Buyer liability of the Pattern B Member or Buyer Parent written notice prior the New Class B Member with respect to such date.Guaranteed Obligation, with reference specifically, but without limitation, to Section 6.2 of the ECCA and Section 11.02 of the LLC Agreement;
(d) No Buyer Losses or Seller Losses, as the case may be, Guarantor shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, have no liability hereunder with respect to any matter that is covered action or inaction of the Managing Member or Tax Matters Member or any breach or noncompliance by insurancethe Managing Member or Tax Matters Member with any of the Guaranteed Obligations, to if the extent proceeds Pattern B Member or the New Class B Member was not, at the time of such insurance are paid.action, inaction, breach or noncompliance the Managing Member or Tax Matters Member, as applicable;
(e) the Guarantor’s aggregate liability hereunder shall not exceed $120,000,000 less all amounts which have been paid by or on behalf of the Pattern B Member or the New Class B Member pursuant to either Section Six of the ECCA or Section 5.04 or Article 11 of the LLC Agreement (the “Aggregate Liability Amount”); provided that the aggregate liability of the Guarantor shall not exceed the amount calculated pursuant to Section 6(f); and
(f) the Guarantor’s aggregate liability from time to time hereunder, under Section 6.1 of the ECCA and Section 11.02 of the LLC Agreement shall not exceed (i) Anything if the Flip Point has not occurred, an amount the payment of which to the contrary herein notwithstandingBeneficiaries, the representations and warranties contained in clauses (a) through (eif treated as a Cash Flow for purposes of Section 5.06(b)(iii) of Section 3.15 and clauses (f) through (h) the LLC Agreement as of Section 3.15 (but only the Distribution Date immediately following payment of such amount, would cause the Flip Point to occur on or prior to the extent there was a violation date on which the Flip Point is projected to occur in the Base Case Model and (ii) if the Flip Point has occurred, zero. For purposes of applicable Environmental Laws at the time the event referred determining Guarantor’s maximum liability pursuant to in such clauses (f) through (h) occurred) this Section 6(f), all payments pursuant to this Guarantee shall be deemed to have been treated as Cash Flow for purposes of Section 5.06(b)(iii) of the LLC Agreement. Notwithstanding the foregoing, if any Tax contest or dispute applicable to a taxable period prior to or during which the Flip Point occurs relating to any Company Tax Return applicable to a year prior to or during which the Flip Point occurs shall cause any Beneficiary to fail to achieve the Flip Point (other than as a result of a change in a Fixed Tax Assumption), the indemnification obligations of the indemnifying party hereunder, under Section 6.1 of the ECCA and under Section 11.02 of the LLC Agreement shall not be breached only subject to the extent that any such breaches result limitations described in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
clause (ii) Anything until it shall have received sufficient cash, PTCs or other Tax Benefits to cause the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only Flip Point to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregateoccur.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
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Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, indemnification provided for claims under this Agreement in Section 8.02 and Section 8.03 shall be limited by subject to the followingfollowing limitations:
(a) If the Closing Parent shall not have occurred, recovery of be liable to the Buyer Indemnitees for indemnification under Section 8.02(a) (i) in respect of any individual claim or series of claims having the Seller Indemniteessame or substantially similar nature or origin or arising from the same or substantially similar facts and circumstances, as where the case may beaggregate amount of Losses relating to such claim or series of claims is less than $10,000 (the “Claim Threshold”), and such claim or series of claims with Losses relating thereto of less than the Claim Threshold will not be aggregated or counted for purposes of clause (ii) of this Section 8.04(a) and (ii) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) exceeds $350,000 (the “Basket”), in which event Parent shall be required to pay or be liable for all such Losses in excess of $175,000 (the “Deductible”). The aggregate amount of all Losses for which Parent shall be liable pursuant to Section 8.1 or Section 8.2, as 8.02(a) shall not exceed $10,000,000 (the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever“Cap”).
(b) Two years after Buyer shall not be liable to the Closing Date Seller Indemnitees for indemnification under Section 8.03(a) (ori) in respect of any individual claim or series of claims having the same or substantially similar nature or origin or arising from the same or substantially similar facts and circumstances, where the aggregate amount of Losses relating to such claim or series of claims is less than the Claim Threshold, and such claim or series of claims with Losses relating thereto of less than the Claim Threshold will not be aggregated or counted for purposes of clause (ii) of this Section 8.04(b) and (ii) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses in excess of the case Deductible. The aggregate amount of a claim all Losses for breach of which Buyer shall be liable pursuant to Section 3.15, three years after 8.03(a) shall not exceed the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such dateCap.
(c) Two years after Notwithstanding the Closing Dateforegoing, Buyer the limitations set forth in Section 8.04(a) and Buyer Parent Section 8.04(b) shall have no further obligations under this Article 8not apply to Losses based upon, this Agreement or otherwisearising out of, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such dateby reason of any inaccuracy in or breach of any representation or warranty in Section 3.01, Section 3.02, Section 3.03, Section 3.04, Section 3.05(a) and (b), Section 3.25, Section 4.01, Section 4.02(a) and (b), and Section 4.04.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(iiARTICLE VIII (including for purposes of determining the existence of any inaccuracy in, or breach of, any representation or warranty and for calculating the amount of any Loss with respect thereto), "Purchase Price Indemnification Amount" any inaccuracy in or breach of any representation or warranty shall mean the sum of be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(xe) Cdn$13,062,741 (plus or minus In no event shall any adjustment Indemnifying Party be liable to any Indemnified Party for any punitive damages, except to the Note as contemplated extent actually paid or payable by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior an Indemnified Party to the date hereofanother Person with respect to a Third-Party Claim.
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Certain Limitations. The liability (a) Notwithstanding anything to the contrary contained herein, (i) the Ceding Company shall not be obligated to indemnify and hold harmless the Reinsurer Indemnified Persons under Section 9.02(a)(i) or Section 9.02(a)(ii) and (ii) the Reinsurer shall not be obligated to indemnify and hold harmless the Ceding Company Indemnified Persons under Section 9.02(b)(i), in each case, (A) with respect to any claim or series of Sellerrelated claims arising from the same or similar facts, Buyer unless such claim or Buyer Parentseries of claims involves Indemnifiable Losses of such Indemnitees in excess of $[***] (the “Threshold Amount”) and (B) unless and until the aggregate amount of all Indemnifiable Losses of such Indemnitees (1) under Section 9.02(a)(i) or Section 9.02(b)(i), as applicable, relating to claims or series of related claims that exceed the Threshold Amount exceeds $[***] for all such Indemnifiable Losses (the “General Deductible Amount”) or (2) under Section 9.02(a)(ii) relating to claims or series of related claims that exceed the Threshold Amount exceeds $[***] (the “Specified Representation Deductible Amount”), at which point such Indemnitor shall be liable to the relevant Indemnitees for the value of such Indemnitee’s claims under this Agreement shall be limited by the following:
(aSection 9.02(a)(i), Section 9.02(a)(ii) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller IndemniteesSection 9.02(b)(i), as the case may be, pursuant to Section 8.1 that are in excess of the General Deductible Amount or Section 8.2the Specified Representation Deductible Amount, as applicable, subject to the case may be, shall be limited to actual out-of-pocket expenses and shall limitations set forth in no event include any special, indirect, incidental or consequential damages whatsoeverthis Article IX.
(b) Two years after The maximum aggregate liability of the Closing Date Ceding Company for any all Indemnifiable Losses under (ori) Section 9.02(a)(i) shall be $[***] (the “General Cap”) and (ii) Section 9.02(a)(ii) shall be $[***]. The maximum aggregate liability of the Reinsurer for any and all Indemnifiable Losses under Section 9.02(b)(i) shall be $[***]. For the purposes of this Agreement, in the case Specified Representation Deductible Amount and the $[***] cap applicable to claims under Section 9.02(a)(ii) shall only be applicable to Indemnifiable Losses of a claim for breach the Retrocessionaire and its Affiliates and not to those of the Reinsurer and its Affiliates, and any such Indemnifiable Losses of the Retrocessionaire and its Affiliates under Section 3.15, three years after 9.02(a)(ii) shall not count towards the Closing Date, and, in General Deductible Amount or the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such dateGeneral Cap.
(c) Two years after Any Indemnifiable Losses shall be net of any (i) amounts recovered by the Closing Date, Buyer and Buyer Parent shall have no further obligations Indemnitee (including under this Article 8, this the Retrocession Agreement or otherwiseany other Contract between the Reinsurer or its Affiliates, except on the one hand, and the Retrocessionaire or its Affiliates, on the other hand, related to the transactions contemplated by this Agreement) for Seller the Indemnifiable Losses for which such Indemnity Payment is made under any insurance policy, reinsurance agreement, warranty or indemnity or otherwise from any Person other than a party hereto or one of its Affiliates as reduced by the amount of any costs reasonably incurred by the Indemnitee in seeking such recovery, and the Indemnitee shall promptly reimburse the Indemnitor for any such amount that is received by it from any such other Person with respect to which Indemnifiable Losses after any indemnification with respect thereto has actually been paid pursuant to this Agreement less any costs incurred in recovering such amount and (ii) amounts reserved for on the Seller Indemnitees have given Buyer or Buyer Parent written notice prior Final Statement of Net Settlement; provided that such reimbursement shall only be required to such datethe extent the Indemnitee would otherwise retain an amount greater than the full amount of the Indemnifiable Losses incurred by the Indemnitee as a result of the underlying claim.
(d) No Buyer Each Indemnitee shall use commercially reasonable efforts to mitigate all Indemnifiable Losses or Seller Losses, as the case for which indemnification may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only sought hereunder to the extent such Buyer mitigation is required by Applicable Law; provided that the cost and expense of such mitigation shall constitute Indemnifiable Losses exceed Cdn$50,000 in the aggregatehereunder.
(iie) Anything For purposes of determining any Indemnifiable Losses or other recovery for a breach of Specified Representations the amount of Indemnifiable Losses resulting from data inaccuracies shall be determined on a net basis in the aggregate (but shall not be negative), taking into account both the damages and the benefits to the respective Indemnitee from such data inaccuracies. Notwithstanding the foregoing, for forty-five days after the Ceding Company’s receipt of notice of a claim of breach of Specified Representations, the Ceding Company shall have the right to assert, with appropriate support, countervailing errors unrelated to the data errors underlying the Indemnitee’s claim; provided that such assertion of countervailing errors shall be limited to those that were relevant to evaluation of the party seeking the indemnity.
(f) For the avoidance of doubt, limitations on recovery amounts or the period during which recovery is available, in each case as set forth in this Agreement, shall not be applied to any breach or non-fulfillment of any other agreement or covenant of the Ceding Company under any other Transaction Agreement, unless the same action, event, circumstance or occurrence would constitute a breach by the Ceding Company and its Affiliates of both this Agreement and the applicable Transaction Agreement.
(g) Notwithstanding anything to the contrary herein notwithstandingin this Agreement, in no event shall the representations Ceding Company be subject to, or liable for, duplicative Indemnifiable Losses hereunder (it being agreed that the Reinsurer and warranties contained in clauses (f) through (h) the Retrocessionaire may suffer or incur different Indemnifiable Losses arising from the same underlying set of Section 3.15 (but only facts or circumstances); provided that the foregoing shall not limit an Indemnitee’s ability to make a claim as to a breach of more than one representation, warranty, covenant or agreement arising from the extent not subject to clause (i) same state of this Section 8.3(e)) facts. For the avoidance of doubt, no Indemnitee shall be deemed entitled to be breached only duplication of recovery with respect to Indemnifiable Losses arising under the same underlying subject matter. To the extent that any such breaches result an Indemnitee has received payment from an Indemnitor in Buyer Losses in excess respect of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, an Indemnifiable Loss pursuant to the provisions of any other Transaction Agreement, such Indemnitee shall not be entitled to such Indemnifiable Loss from the same Indemnitor under this Article 8Agreement, unless and no Indemnitee may obtain duplicative indemnification or other recovery from the amount of Buyer same Indemnitor for Indemnifiable Losses under one or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the more provisions of this Article 8 (other than with respect to Section 8.1(d)Agreement, (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for one hand, and any other Transaction Agreement, on the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofother hand.
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Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under (a) Nothing in this Agreement shall be limited deemed to require any Sublessor Entity to indemnify any TowerCo Indemnitee for or in respect of any of the Real Estate Representations. Without limiting the generality of the foregoing, the sole remedies of TowerCo or TowerCo Parent in respect of a breach of any Real Estate Representation by any Sublessor Entity shall be to cause (i) such Sublessor Entity to continue to use reasonable efforts to cure such breach, as contemplated by Section 4.5, until the following:
Final Closing Date, or (aii) If the Site as to which such Real Estate Representation is breached to be, at the applicable Sublessor Entity's election, an Excluded Site or to defer the Closing of such Site to a later Closing Date, provided that the failure of any such deferred Site to become an Included Site on or prior to the Final Closing shall not have occurred, recovery of the Buyer Indemnitees constitute a default under this Agreement or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 give TowerCo Parent or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include TowerCo any special, indirect, incidental or consequential damages whatsoeverremedy.
(b) Two years after Notwithstanding anything to the Closing Date (orcontrary contained herein, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller no Sublessor Entity shall have no further obligations any obligation under this Article 8, this Agreement or otherwise, except for Buyer Losses Section 13 to TowerCo Indemnitees with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Datebreach of representations, Buyer warranties, covenants or agreements by SBCW, unless, until and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any the aggregate of all TowerCo Indemnified Losses from all such breaches result in Buyer Losses in excess exceeds on a cumulative basis one percent (1%) of Cdn$50,000 in the aggregate amount of all Rent having been paid to SBCW or any other Sublessor Entity under the Sublease as of the date on which the claim for indemnification arose (the "Deductible Amount"), and then only to the extent of such Buyer Losses exceed Cdn$50,000 in the aggregateexcess amount.
(iic) Anything in this Agreement to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only no event shall any Sublessor Entity be liable under this Agreement for any indemnification obligation pursuant to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses 13 in excess of Cdn$30,000 in 25% of the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant the Rent having been paid to SBCW or such Sublessor Entity under the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average SBCW Sublease on account of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades Site(s) owned by such Sublessor Entity as of Buyer Parent Common Stock occur on any such day) prior to the date hereofon which the claim for indemnification arose (the "Maximum Indemnification").
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Certain Limitations. (a) The Seller Parties shall not be required to indemnify Buyer Indemnitees with respect to any claim for indemnification pursuant to Section 9.1(a) unless and until the aggregate amount of all claims against the Seller Parties under Section 9.1(a) exceeds One Hundred Seventy-Five Thousand Dollars ($175,000) (the “Threshold Amount”), in which event the Seller Parties shall be responsible for the amount of such Losses back to the first dollar provided, however, that the aggregate liability of Sellerthe Seller Parties to Buyer Indemnitees under Section 9.1(a) shall not exceed Five Million Dollars ($5,000,000) (the “Cap”). Neither the Cap nor the Threshold Amount shall apply to indemnities for Losses relating to any Sales Tax, the representations and warranties contained in Section 2.1, 2.2, 2.8(a), 2.15 or 2.20 or any Losses to be indemnified pursuant to Section 9.1(e).
(b) Except with respect to claims for indemnification based on inaccuracies in the representations and warranties contained in Section 3.1, Victory and Buyer shall not be required to indemnify Seller Indemnitees with respect to any claim for indemnification pursuant to Section 9.2(a) unless and until the aggregate amount of all claims against Victory and Buyer under Section 9.2(a) shall exceed the Threshold Amount, in which event Victory and Buyer shall be responsible for the amount of such Losses back to the first dollar; provided, however, that the aggregate liability of Victory and Buyer to the Seller Parties under Section 9.2(a) shall not exceed the Cap.
(c) Notwithstanding any other provision of this Agreement, the rights and remedies of any party based upon, arising out of or Buyer Parentotherwise in respect of any inaccuracy or breach of any representation, as applicablewarranty, for claims under this Agreement covenant or agreement or failure to fulfill any condition shall in no way be limited by the following:fact that a set of facts upon which any claim of any such inaccuracy or breach is based may also be the subject matter of any other representation, warranty, covenant or agreement as to which there is no inaccuracy or breach, provided that such party shall not be entitled to multiple indemnification for claims based upon the same set of facts.
(ad) If Except as set forth in Section 8.5, The indemnity provided for in this Article IX shall be the Closing shall not have occurred, recovery sole and exclusive remedy of the Buyer Indemnitees or the Seller IndemniteesParties, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (orfor any inaccuracy of any representation or warranty of the Seller Parties or Buyer, in the case of a claim for respectively, herein or any other breach of Section 3.15this Agreement; provided, three years after the Closing Date, and, that nothing herein shall limit in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that way any such breaches result party’s remedies in Buyer Losses in excess respect of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstandingfraud, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim intentional misrepresentation or claims shall be asserted by a Buyer Indemnitee omission or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied intentional misconduct by the average of other party in connection herewith or the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereoftransactions contemplated hereby.
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Sources: Asset Purchase Agreement (Electronic Cigarettes International Group, Ltd.)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the followingFollowing Closing:
(a) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything the Sellers shall not be liable to Buyer Indemnified Persons under Section 10.2(a)(i) for any breach of or inaccuracy in any of the representations or warranties set forth in Article III (other than Fundamental Representations) unless the aggregate Losses incurred by the Buyer Indemnified Persons exceed (the “Basket”), and then the Sellers shall be jointly and severally liable to the contrary herein notwithstandingBuyer Indemnified Persons for the full amount of all Losses from the first dollar, including Losses needed to meet the representations and warranties contained in clauses Basket; provided, however, no claims for which the aggregate amount of Losses of the Buyer Indemnified Persons arising from such claims is less than (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred“Mini Basket”) shall be deemed to included in determining whether the Basket has been met; provided further, however, that once the Basket is met, all Losses (including Losses that are less than the Mini Basket) shall be breached only to recoverable by the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.Indemnified Persons;
(ii) Anything Buyer shall not be liable to the contrary herein notwithstandingSeller Indemnified Persons under Section 10.2(c)(i) for any breach of or inaccuracy in any of Buyer’s representations or warranties (other than Fundamental Representations) unless the aggregate Losses incurred by the Seller Indemnified Persons exceed the Basket, and then Buyer shall be liable for the representations and warranties contained full amount of all Losses from the first dollar, including Losses needed to meet the Basket; provided, however, no claims for which the aggregate amount of Losses of the Seller Indemnified Persons arising from such claims is less than the Mini Basket shall be included in clauses determining whether the Basket has been met; provided further, however, that once the Basket is met, all Losses (f) through (h) of Section 3.15 (but only to including Losses that are less than the extent not subject to clause (i) of this Section 8.3(e)Mini Basket) shall be deemed to be breached only to recoverable by the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.Seller Indemnified Persons;
(iii) No claim or claims shall the aggregate amount required to be asserted paid by a Buyer Indemnitee or a Seller Indemnitee, as applicable, the Sellers pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(ivSection 10.2(a)(i) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(dbreaches of Fundamental Representations), (eSection 10.2(a)(iv) and Section 10.2(b)(i) (fother than with respect to breaches of the Fundamental Representations) shall not exceed (the “Cap”);
(iv) by all Buyer Indemnitees shall be limited in the aggregate amount required to be paid by Buyer pursuant to Section 10.2(c)(i) (other than with respect to breaches of Fundamental Representations) shall not exceed the Purchase Price Indemnification Amount. For purposes of Cap;
(v) in no event will any Seller be liable under this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus Article X for any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average Losses in excess of the closing prices reported on cash proceeds or value of the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any Issued Units actually received by such day) prior to the date hereof.Seller;
Appears in 1 contract
Certain Limitations. The liability Notwithstanding the other provisions of Sellerthis Article VII, Buyer or Buyer Parentneither Seller Parent nor Purchaser, as applicable, shall have any indemnification obligations for claims under this Agreement shall be limited by the following:
(a) If the Closing shall not have occurred, recovery of the Buyer Indemnitees Losses under Section 7.1(a)(ii) or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date7.2(a)(ii), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only amount of all such Losses exceeds the Preliminary Purchase Price, (b) under Section 7.1(a) to the extent such Buyer Losses exceed Cdn$50,000 result from, arise out of or are the consequence of, in the aggregate.
(ii) Anything to the contrary herein notwithstandingwhole or part any intrusive investigation, the representations and warranties contained including any drilling, sampling, testing or monitoring of any soil, surface water or groundwater by or on behalf of Purchaser or any of its Affiliates, in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only each case, except to the extent such Buyer action or intrusive investigation was expressly required by Environmental Laws or Environmental Permits or is undertaken in response to a substantial threat to human health or the environment; or (c) Losses exceed Cdn$30,000 under Section 7.1(a)(iii) or 7.2(a)(iii), in respect of any individual item or group of items where the aggregate.
Loss relating thereto is less than $100,000 (iii) No claim the “De Minimis Claim Threshold”), or claims shall be asserted by a Buyer Indemnitee in respect of each individual item or a Seller Indemnitee, as applicable, pursuant group of related items where the Loss relating thereto is equal to or greater than the provisions of this Article 8De Minimis Claim Threshold, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer all such Losses recoverable pursuant exceeds $5,000,000 (the “Deductible”), in which event the applicable Party shall be required to pay only the amounts of such Losses from the first dollar of any such Losses but only up to a maximum amount of $100,000,000 (the “Maximum Indemnification Amount”); provided, that, notwithstanding anything in this Agreement to the provisions contrary, in no event shall the same Loss be taken into account more than once for purposes of calculations in connection with, or application of, the De Minimis Claim Threshold, the Deductible or the Maximum Indemnification Amount. Notwithstanding anything to the contrary set forth in this Article 8 Agreement, the limitations set forth in this Section 7.5 shall not apply to or count towards any indemnification obligation of (other than A) Seller Parent for Losses resulting from (1) any Excluded Asset, (2) any Retained Liability, (3) the Retained Businesses, (4) any breach of any representation or warranty of Seller Parent set forth in Section 4.1, Section 4.2, Section 4.3, Section 4.15 (except with respect to the Maximum Indemnification Amount, which shall apply for any indemnification obligations of Seller Parent with respect to Section 8.1(d4.15) and Section 4.19 (collectively, the “Seller Fundamental Representations”), or (5) Seller Parent’s fraud, and (B) Purchaser for Losses resulting from (1) any Purchased Asset, (2) any Assumed Liability, (3) the Business, (4) any breach of any representation or warranty of Purchaser set forth in Section 5.1, Section 5.2, Section 5.3, and Section 5.11 (collectively, the “Purchaser Fundamental Representations”, and together with the Seller Fundamental Representations, the “Fundamental Representations”), (e5) and any use by Purchaser or any of its Affiliates of the Hospira Marks pursuant to Section 6.18, (f)6) Purchaser’s or any of its Affiliates’ or Sublicensees’ (as defined in the Intellectual Property License Agreement) exercise of any license or other rights set forth in the Intellectual Property License Agreement, (7) the research, development, manufacture, use, sale, offer for sale, import or export of any Company Medical Device Products (as defined in the Intellectual Property License Agreement) or Company Solutions Products (as defined in the Intellectual Property License Agreement) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes or on behalf of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum Purchaser or any of its Affiliates or Sublicenseesor or (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof8) Purchaser’s fraud.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Icu Medical Inc/De)
Certain Limitations. The liability of Seller, Buyer Person or Buyer Parent, as applicable, for claims Persons making a claim under this Agreement Article 9 is referred to as the "Indemnified Party," and the Person or Persons against which such claims are asserted under this Article 9 is referred to as the "Indemnifying Party." Notwithstanding anything to the contrary in this Agreement, the indemnification provided for in Sections 9.02 and 9.03 shall be limited by subject to the followingfollowing limitations:
(a) If Other than with respect to indemnification with respect to breaches of Seller Fundamental Representations and claims based on any Seller's intentional misconduct or fraud, in which case the Closing following limitation shall not apply, Sellers shall not be liable to Buyer Indemnified Parties for indemnification under Section 9.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.02(a) exceeds $450,000 (the "Deductible"), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of the Deductible. Except for Seller Fundamental Representations and claims based on any Seller's intentional misconduct or fraud, Sellers shall not have occurredany liability for an Indemnification Claim under Section 9.02(a) for any individual item where the Losses related to such claim (or series of claims arising from the same or substantially similar facts or circumstances) are less than $15,000, recovery and once the aggregate amount of Losses for such claim (or series of claims arising from the Buyer Indemnitees same or substantially similar facts or circumstances) exceed $75,000 all Losses related thereto will be included in determining if the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverDeductible has been exceeded.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Subject to Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date9.05(a), Seller the Buyer Indemnified Parties shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses not be indemnified pursuant to Section 9.02(a) with respect to any Loss if the aggregate amount of all Losses for which the Buyer Indemnitees Indemnified Parties have given received indemnification pursuant to Section 9.02(a) is equal to or has exceeded an amount equal to the Indemnity Escrow Amount; provided, however that, notwithstanding the foregoing in this Section 9.04(b), with respect to Losses incurred or sustained by, or imposed upon the Buyer Indemnified Parties based upon, arising out of, with respect to or by reason of breaches of Seller written notice prior Fundamental Representations, the Buyer Indemnified Parties shall not be indemnified pursuant to Section 9.02(a) with respect to any Loss if the aggregate amount of all Losses for which the Buyer Indemnified Parties have received indemnification pursuant to Section 9.02(a) has exceeded the following amount: (i) the Purchase Price, less (ii) the aggregate amount, up to a maximum of $10,000,000, of the Company Indebtedness Payments. For the avoidance of doubt, in determining whether the aggregate amount of all Losses for which the Buyer Indemnified Parties have received indemnification pursuant to Section 9.02(a) of this Agreement has exceeded such dateamount, all amounts recovered by any Buyer Indemnified Party from the Indemnity Escrow Fund or under the Representations and Warranties Insurance Policy shall be counted as "Losses for which the Buyer Indemnified Parties have received indemnification pursuant to Section 9.02(a)."
(c) Two years after Notwithstanding anything to the Closing Datecontrary in Sections 9.04(a) or 9.04(b), Buyer the limitations set forth in Sections 9.04(a) and Buyer Parent 9.04(b) shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses not apply with respect to which Losses recoverable from Sellers to the Seller Indemnitees have given Buyer or Buyer Parent written notice prior extent that such Losses are caused by Sellers' Actual Fraud, but subject to such datethe limitations in Section 9.05.
(d) No Buyer Losses Payments by an Indemnifying Party pursuant to Sections 9.02 or Seller Losses, as the case may be, 9.03 in respect of any Loss shall be asserted limited to the amount of any Loss that remains after deducting therefrom any insurance proceeds (other than any proceeds of the Representations and Warranties Insurance Policy, the use of which proceeds is addressed by Section 9.05) and any indemnity, contribution or any other payment or reimbursement received by the Indemnified Party in respect of any such matter or claim, including, with respect to Buyer, those recovered by any Company after Closing (collectively, the "Insurance Proceeds"). Any Losses incurred by any Indemnified Party with respect to any matter shall be calculated net of any Insurance Proceeds. If any Insurance Proceeds are received by any Indemnified Party after an Indemnifying Party has made a Buyer Indemnitee or a Seller Indemniteepayment to such Indemnified Party pursuant to this Article 9, as applicable, any such Indemnified Party shall promptly remit such Insurance Proceeds to the applicable Indemnifying Party. The Indemnified Party agrees to use its commercially reasonable efforts to pursue recovery of any Insurance Proceeds with respect to any matter that is covered the subject of a claim for indemnification prior to seeking indemnification under this Agreement.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable actions to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto.
(f) No Indemnifying Party shall be liable under Section 9.04(a) or 9.04(b) for any Losses if and to the extent such Losses consist of amounts that are payable by insuranceeither Party pursuant to Section 2.04. In other words, there shall be no double counting or double recovery, under Section 9.04(a) or 9.04(b), with respect to amounts payable pursuant to Section 2.04.
(g) Notwithstanding anything herein to the contrary, Sellers shall not be liable to any Buyer Indemnified Party with respect to any Losses, to the extent proceeds of that such insurance are paid.
(i) Anything to Losses would not have arisen but for, or have been increased as a result of, any voluntary act, omission or transaction carried out before the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws Closing by either Company at the time written direction or request or with the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess written consent of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregateBuyer.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereof.
Appears in 1 contract
Sources: Share Purchase Agreement (Vse Corp)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims party making a claim under this Agreement Article VII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article VII is referred to as the “Indemnifying Party”. The indemnification provided for in Section 5.03(b) and Article VII shall be limited by subject to the followingfollowing limitations:
(a) If the Closing Sellers shall not have occurredbe liable to the Indemnified Party for indemnification under Section 7.02(a)(i) (I) for any Loss or any series of related Losses that do not exceed $75,000 (a “Qualifying Loss”) and (II) until the aggregate amount of all Losses (whether or not Qualifying Losses) incurred by the Buyer Indemnified Parties with respect to the matters covered thereunder exceeds $2,000,000 (the “Deductible”), recovery in which event Sellers shall only be required to pay or be liable for Qualifying Losses in excess of the Buyer Indemnitees Deductible; provided, however, (A) any Losses related to the Fundamental Representations and the Tax Representations shall constitute a Qualifying Loss notwithstanding the size of such Loss and (B) the Deductible shall not apply to (i) any claim for intentional breach of a representation or fraud or (ii) any breach of the Tax Representations or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverFundamental Representations.
(b) Two years after The aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 7.02(a)(i) shall not exceed $55,000,000 (the Closing Date “Cap”); provided, however, the Cap shall not apply to (or, in the case i) any claim for intentional breach of a claim for representation or fraud or (ii) any breach of Section 3.15, three years after the Closing Date, and, in Tax Representations or the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such dateFundamental Representations.
(c) Two years after Subject to the Closing Dateother limitations imposed by this Article VII, all claims against the Sellers for indemnification under this Agreement, including any claims for the Tax Indemnity and claims under Article VII, shall first be paid and satisfied from the Escrow Account, to the extent of any funds then remaining, and only secondarily by the Sellers; provided, however, that Losses that could be asserted under the indemnification provisions of Section 7.02(b) shall not be satisfied from the Escrow Account but instead, Buyer may only seek to recover such Losses directly against the offending Seller (severally and Buyer Parent not jointly and severally against others). The Institutional Sellers shall have no further be jointly and severally liable for the indemnification obligations under this Article 8of the Sellers pursuant to Section 7.02(a) and the Tax Indemnity, this Agreement or otherwise, except and the Individual Sellers shall be severally (and not jointly) liable for Seller Losses with respect such indemnification obligations in proportion to which each such Individual Seller’s respective Percentage Interest of the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such dateapplicable Loss.
(d) No Buyer Losses or Seller Losses, as Except in the case may beof intentional breach of a representation or fraud, the aggregate liability of Sellers hereunder for all claims, including for the Tax Indemnity and under this Article VII, shall not exceed the Purchase Price. No Individual Seller shall be asserted by a Buyer Indemnitee liable for any claim for indemnification under Section 7.02 or a Seller Indemniteefor the Tax Indemnity in excess of such Individual Seller’s Percentage Interest in such claim, as applicable, and with respect to any matter that is covered claims subject to the Cap, each Individual Seller’s aggregate liability for all such claims for indemnification shall not exceed such Individual Seller’s Percentage Interest of the Cap. The maximum liability hereunder for any Individual Seller for the Tax Indemnity shall not, when aggregated with all other indemnification obligations of such Individual Seller hereunder, exceed the Purchase Price actually received by insurancesuch Individual Seller.
(e) The amount of any Loss subject to indemnification pursuant to Section 5.03(b) or Article VII shall be calculated net of any insurance proceeds and any indemnity, contribution or other similar payment actually received by the Indemnified Party (or the Company) in respect of any such Loss. The Indemnified Party shall use commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses. The amount of any indemnity payment hereunder shall initially be determined without regard to any such insurance proceeds or indemnity, contribution or other similar payments and shall be subject to adjustment if and when any such insurance proceeds indemnity, contribution or other similar payments are actually received. If and to the extent that any insurance proceeds or indemnity, contribution or other similar payments are recovered by an Indemnified Party with respect to any Losses for which it has already been indemnified by an Indemnifying Party hereunder, such Indemnified Party shall pay to the Indemnifying Party (or, in cases where the Sellers are the Indemnifying Party, the Stockholder Representative, for the benefit of the Sellers) within thirty (30) days of receiving such insurance proceeds or payment, an amount equal to the excess of (i) the amount previously received by the Indemnified Party under Section 5.03(b) or this Article VII with respect to such claim plus the amount of the insurance proceeds and indemnity, contribution or other similar payments received, over (ii) the amount of Losses with respect to such claim which the Indemnified Party has become entitled to receive under Section 5.03(b) or this Article VII; provided, however, that if the Sellers were the Indemnifying Parties, the applicable indemnification payment was made from the Escrow Account and the Escrow Account remains in effect, then the Buyer Indemnified Party shall make such payment to the Escrow Account.
(f) The amount of any Loss subject to indemnification pursuant to Section 5.03(b) or Article VII shall be calculated net of any Tax Benefit actually realized by the Indemnified Party on account of such insurance Loss. The amount of any indemnity payment hereunder shall initially be determined without regard to any such Tax Benefit, and shall be subject to adjustment if and when any such Tax Benefit is actually realized. If and to the extent that any Tax Benefit is realized by an Indemnified Party with respect to any Losses for which it has already been indemnified by an Indemnifying Party hereunder, such Indemnified Party shall pay to the Indemnifying Party (or, in cases where the Sellers are paidthe Indemnifying Party, the Stockholder Representative, for the benefit of the Sellers) within 30 days of realizing such Tax Benefit, an amount equal to the excess of (i) the amount previously received by the Indemnified Party under Section 5.03(b) or this Article VII with respect to such claim plus the amount of the Tax Benefit realized by the Indemnified Party, over (ii) the amount previously received by the Indemnified Party under Section 5.03(b) or this Article VII with respect to such claim; provided, however, that if the Sellers were the Indemnifying Parties, the applicable indemnification payment was made from the Escrow Account and the Escrow Account remains in effect, then the Buyer Indemnified Party shall make such payment to the Escrow Account.
(g) No Seller shall have any liability with respect to a breach of any of the Several Representations by any other Seller and ▇▇▇▇▇ agrees not to seek recovery against a Seller with respect to a breach of the Several Representations by another Seller.
(h) Notwithstanding anything contained elsewhere in this Agreement, the amount of any Loss subject to indemnification under Section 7.02 shall be calculated net of any amounts to the extent, but only to the extent, that such Loss was included as a Current Liability in calculating the Company’s Working Capital and actually taken into account in determining the Final Adjustment Amount.
(i) Anything The parties hereto agree that Buyer shall not have any rights to the contrary herein notwithstandingset-off any Loss it may have against Sellers against any amount otherwise due to any of Sellers.
(j) If an Indemnified Party is entitled to indemnification under more than one clause or subclause of this Agreement with respect to Losses, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but then such Indemnified Party shall be entitled to only one indemnification or recovery for such Losses to the extent there was it arises out of the same set of circumstances and events; it being understood that this Section 7.04(j) is solely to preclude a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregateduplicate recovery by Indemnified Party.
(iik) Anything Upon making any indemnity payment pursuant to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller IndemniteeAgreement, as applicable, pursuant the Indemnifying Party (or, in cases where the Sellers are the Indemnifying Party, the Stockholder Representative, on behalf of the Sellers) shall be subrogated to all rights of the provisions Indemnified Party against any third party in respect of this Article 8the Losses to which the payment related. The Indemnifying Party shall not, unless however, have the right to collect aggregate payments from such third party or third parties in excess of the actual amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than indemnification payment previously paid with respect to Section 8.1(d)such Losses. The parties hereto will execute upon request, (e) all instruments reasonably necessary to evidence and (f)) by all Buyer Indemnitees shall be limited in perfect the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofabove described subrogation rights.
Appears in 1 contract
Certain Limitations. The (i) Notwithstanding anything to the contrary contained in this Agreement:
(A) the Seller will not have any liability for indemnification pursuant to Section 11.1(a)(i) or Section 11.1(a)(ii) (other than for fraud, intentional misrepresentation, the Fundamental Representations, for which the following limitation will not apply) until the aggregate amount of all such Losses sustained by the Buyer Indemnitees exceeds an amount equal to $55,000, in which case the Seller will be liable for all such Losses exceeding such amount provided, however, that no Losses may be claimed by any Indemnified Party or shall be reimbursable by the Seller or shall be included in calculating the aggregate Losses for purposes of this clause (A) other than Losses in excess of $7,500 resulting from any single claim or aggregated claims arising out of the same facts, events or circumstances;
(B) the Seller will have no liability for indemnification pursuant to Section 11.1(a)(i) or Section 11.1(a)(ii) (other than for fraud, intentional misrepresentation, the Fundamental Representations, for which the following limitation will not apply) in excess of an amount equal to 30% of the Initial Purchase Price;
(C) the Seller will have no liability for indemnification pursuant to Section 11.1(a)(v) in excess of an amount equal to 30% of the Initial Purchase Price;
(D) the Seller will have no liability for indemnification pursuant to this Article 11 in excess of the Purchase Price actually received by the Seller, except in the case of fraud or intentional misrepresentation;
(E) the Seller shall not be obligated to indemnify any Indemnified Party with respect to any Loss to the extent that a specific | accrual or reserve for the amount of such Loss was reflected on the Interim Financial Statements, the Financial Statements or the notes thereto;
(F) no Buyer Indemnitee shall be entitled to indemnification for Losses with respect to (i) Taxes that arise from any breach of a covenant or agreement made or to be performed by the Buyer or its Affiliates (including, from and after the Closing, the Group Companies) pursuant to this Agreement, (ii) Taxes that arise from any action taken by the Buyer or its subsidiaries (including, from and after the Closing, the Group Companies) on the Closing Date following the Closing outside the ordinary course of business, (iii) the amount of any net operating loss, Tax basis, Tax credit or other Tax attribute (or the loss, unavailability or reduction thereof), except to the extent resulting directly in additional cash Tax liability of Sellerthe Group Companies for a Pre-Closing Tax Period or any Pre-Closing Straddle Period that otherwise would not have been imposed, (iv) any Transfer Taxes that are the responsibility of the Buyer under Section 10.2 or (v) any Taxes to the extent taken into account as a liability in Final Working Capital, Final Indebtedness or Final Selling Expenses.
(ii) The amount of Losses for which a Buyer Parent, as applicable, for Indemnitee claims indemnification under this Agreement shall be limited reduced to take account of any net Tax benefits actually realised by the following:
(a) If the Closing shall not have occurred, recovery of the any Buyer Indemnitees or the Seller Indemnitees, as the case may be, pursuant to Section 8.1 or Section 8.2, as the case may be, shall be limited to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses Indemnitee with respect to which such Losses. For the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Datepurposes of this Agreement, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only have “actually realized” a net Tax benefit to the extent extent, and at such time as, the amount of Taxes required to be paid by the Buyer Indemnitee is reduced below the amount of Taxes that any it would have been required to pay but for deductibility of such breaches result Losses, in Buyer each case: (i) during the immediately succeeding year in which the relevant Losses in excess of Cdn$50,000 in the aggregate occurred; and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything calculated so that the items related to the contrary herein notwithstanding, Indemnifying Party’s indemnification obligations are the representations and warranties contained in clauses (f) through (h) last to be recognized. The amount of Section 3.15 (but only any reduction hereunder shall be adjusted to reflect any final determination with respect to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to Buyer Indemnitee’s liability for Taxes, consistent with the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregateforegoing.
(iii) No claim or claims The amount of any and all Losses under this Article 11 shall be asserted determined net of any insurance, indemnity, reimbursement arrangement, contract or other recovery actually received by a Buyer Indemnitee the Indemnified Party or a Seller Indemnitee, as applicable, pursuant its Affiliates (net of costs for recovery) in connection with the facts giving rise to the provisions right of this Article 8indemnification. In the event that any insurance or other recovery is made by an Indemnified Party or its Affiliates with respect to any Losses for which an Indemnified Party has been indemnified hereunder, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only a refund equal to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The net aggregate amount of Buyer Losses recoverable pursuant the recovery shall be made promptly to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofIndemnifying Parties.
Appears in 1 contract
Certain Limitations. The (a) Notwithstanding anything herein to the contrary, Purchaser shall incur no obligation or liability to the Seller Indemnitees under provision (2) of SellerSection 13.3 until the aggregate total of all such Losses exceeds $450,000.00, Buyer in which event Purchaser shall be required to pay or Buyer Parentbe liable for all such Losses that exceed $450,000.00; provided, as applicablehowever, that this limitation shall not apply to the Purchaser Fundamental Representations.
(b) Notwithstanding anything herein to the contrary, Seller shall incur no obligation or liability to the Purchaser Indemnitees under provision (3) of Section 13.4 until the aggregate total of all such Losses exceeds $450,000.00, in which event Seller shall be required to pay or be liable for claims under all such Losses that exceed $450,000.00; provided, however, that this Agreement limitation shall not apply to the Seller Fundamental Representations.
(c) Any such liability or obligation shall be limited to economic damages incurred by Purchaser due to such breach and Purchaser shall not be entitled to seek to rescind the following:transaction by reason of a failure of a condition precedent to Closing.
(ad) If The representations, warranties and covenants of the Closing Indemnifying Party, and the Indemnified Party’s right to indemnification with respect thereto, shall not have occurred, recovery be affected or deemed waived by reason of any investigation made by or on behalf of the Buyer Indemnitees Indemnified Party (including by any of its representatives) or by reason of the Seller Indemniteesfact that the Indemnified Party or any of its representatives knew or should have known that any such representation or warranty is, was or might be inaccurate or by reason of the Indemnified Party’s waiver of any condition to Closing, as the case may be.
(e) Solely for purposes of determining the amount of Losses under this ARTICLE XIII with respect to any inaccuracy in or breach of any representation, warranty or covenant, the amount of Losses shall be determined without regard to any materiality or other similar qualification contained in or otherwise applicable to such representation, warranty or covenant (such qualifiers shall continue to apply for purposes of determining whether a breach occurred).
(f) Notwithstanding anything to the contrary contained in this Agreement: (1) Seller shall not be required to indemnify Purchaser Indemnitees under provision (3) of Section 13.4 for aggregate Losses in excess of twenty percent (20%) of the Purchase Price, provided, however, that this limitation shall not apply to the Seller Fundamental Representations, (2) Seller’s liability under Section 13.2(f) shall be reduced by the amount of the P&A Escrow released to Purchaser pursuant to Section 8.1 or Section 8.23.4(b), as the case may beif any, shall be limited to actual out-of-pocket expenses and (3) Seller’s aggregate liability under this Agreement shall in no event include any special, indirect, incidental or consequential damages whatsoever.
(b) Two years after the Closing Date (or, in the case exceed 100% of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paid.
(i) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofPrice.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Viking Energy Group, Inc.)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If the Closing shall not have occurredExcept for claims arising from Intentional Fraud, recovery criminal activity or willful breaches of the Buyer Indemnitees or covenants, any Damages for which the Seller Indemnitees, as the case may be, shall be liable pursuant to Section 8.1 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 8.27.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), as and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case may beof any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be limited directly liable to actual out-of-pocket expenses the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and shall in no event include any specialcomply with the terms and conditions thereof (including the deductible provided for therein, indirectthe coverage limit being exceeded or coverage being denied), incidental or consequential damages whatsoeverup to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Two years after Notwithstanding anything to the Closing Date (or, in the case of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwisecontrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer Losses with respect to which for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer Indemnitees have given Seller written notice prior pursuant to such datethis Agreement.
(c) Two years after The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the Closing Dateevent of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, Buyer and Buyer Parent shall have no further obligations under this Article 8warranty, this Agreement covenant or otherwiseagreement hereunder, except for Seller Losses with respect (ii) to which the Seller Indemnitees have given Buyer extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or Buyer Parent written notice prior to such date(iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted An Indemnified Person entitled to indemnification by a Buyer Indemnitee or a Seller Indemnitee, as applicable, an Indemnifying Person pursuant to this Article VII with respect to any matter claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that is covered by insurance, such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent proceeds such Damages were taken into account in the calculation of such insurance are paid.
the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (iii) Anything for any Damages relating to the contrary herein notwithstanding, the representations and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only any matter to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 there is included in the aggregate and then only Interim Financial Statements a specific liability or reserve relating to the extent such Buyer Losses exceed Cdn$50,000 in the aggregatematter.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) For purposes of Section 3.15 (but only to the extent not subject to clause determining (i) whether there has been any misrepresentation or breach of this Section 8.3(e)a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregatedisregarded.
(iiig) No claim Seller makes no representations or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless warranties regarding the amount or availability of Buyer Losses any net operating loss, capital loss, tax credit carryover or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses other Tax asset or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average liability of the closing prices reported on Acquired Companies in any taxable period (or portion thereof) beginning after the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofClosing.
Appears in 1 contract
Certain Limitations. (a) The liability of SellerSeller Indemnity Parties shall not be required to indemnify the Purchaser Indemnified Parties for Damages under Section 9.1(a)(i) (except for the Fundamental Representations and Warranties), Buyer and the Purchaser shall not be required to indemnify the Seller Indemnified Parties for Damages under Section 9.2(a), until (i) an individual claim for Damages exceeds $[***] or Buyer Parent(ii) claims for Damages in the aggregate exceed $[***] (the “Basket”), in which case the Seller Indemnity Parties or Purchaser, as applicable, shall be liable for claims all such Damages including the Basket.
(b) The Seller Indemnity Parties shall not be required to indemnify the Purchaser Indemnified Parties for those portions of any Damages (i) that were specifically deducted in determining any adjustments pursuant to Article III or (ii) to the extent resulting primarily from any material breach of Purchaser’s obligations under this Agreement. Purchaser shall not be required to indemnify the Seller Indemnified Parties for those portions of any Damages (x) that were specifically deducted in determining any adjustments pursuant to Article III or (y) to the extent resulting primarily from any material breach of the Company’s, any Seller’s or the Seller Representative’s obligations under this Agreement. No Person shall be indemnified more than once for the same Damages.
(c) Except in the case of Fraud, the Seller Indemnity Parties’ aggregate liability (i) under Section 9.1(a)(i) (other than with respect to the Fundamental Representations and Warranties and the Tax Representations) shall not exceed one-third (1/3) of the Purchase Price.
(d) Except in the case of Fraud, the aggregate liability of the Seller Indemnity Parties (i) under Section 9.1(a) under this Agreement, other than Section 9.1(a)(i), and the Ancillary Agreements shall not exceed the Purchase Price.
(e) Except in the case of Fraud, the aggregate liability of Purchaser under this Agreement shall be limited not exceed the Purchase Price.
(f) Any amounts owed by the following:Seller Indemnity Parties for indemnification to the Purchaser Indemnified Parties under Section 9.1 shall be exclusively satisfied as follows: (i) first, as a payment by the Escrow Agent from the Indemnification Escrow Fund (on a joint and several basis by the Sellers to the extent of such funds), and after such Indemnification Escrow Fund has been exhausted (ii) second, directly against the Seller Indemnity Parties jointly and severally (which shall include a right of set-off against any Performance Amounts, if any).
(ag) If the Closing shall not have occurred, recovery of the Buyer Indemnitees or Any indemnity payment made by the Seller IndemniteesIndemnity Parties to any Purchaser Indemnified Party, as on the case may beone hand, or by Purchaser to any Seller Indemnified Party, on the other hand, pursuant to Section 8.1 or Section 8.2, as the case may be, this Article IX shall be limited reduced by an amount equal to actual any insurance proceeds actually received by such indemnified party in respect of such claim minus any out-of-pocket expenses (including reasonable and shall in no event include any special, indirect, incidental or consequential damages whatsoeverdocumented attorneys’ fees and expenses) relating to the recovery of such proceeds.
(bh) Two years after Each of the Closing Date (orPurchaser Indemnified Parties and the Seller Indemnified Parties shall take all commercially reasonable steps to mitigate any Damages upon becoming aware of any event or circumstance that would be reasonably expected to, in the case or does, give rise thereto. The reasonable costs and expenses of a claim for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller mitigation hereunder shall have no further obligations constitute indemnifiable Damages under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such date.
(c) Two years after the Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such date.
(d) No Buyer Losses or Seller Losses, as the case may be, shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, with respect to any matter that is covered by insurance, to the extent proceeds of such insurance are paidAgreement.
(i) Anything Notwithstanding anything to the contrary herein notwithstandingset forth in this Agreement, (i) in no event shall any indemnifying party be liable to any indemnified party for any punitive, incidental, consequential, special, or indirect Damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the representations breach or alleged breach of this Agreement, or diminution of value or any Damages based on any type of multiple unless and warranties contained in clauses (a) through (e) of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was the indemnified party is required to pay any such Damages to a violation third party, arising from breaches of applicable Environmental Laws at any covenants or other obligations of the time Company contained in this Agreement or any Ancillary Agreement (other than Specified Offer Letters) and (ii) a Person’s indemnification obligations pursuant to Section 9.1 or Section 9.2 (for the event referred purposes of determining the existence of any inaccuracy or breach of any representation and warranty and calculation of the Damages attributable to in such clauses (f) through (h) occurredinaccuracy or breach) shall be deemed determined without giving effect to any qualification or exception with respect to “material,” “materiality,” “materially,” “Material Adverse Effect” or similar language with respect to materiality contained in any representation or warranty set forth in Article IV; provided, however, that such qualifications will not be breached only disregarded with respect to Sections 4.6(a) and (b) and the extent that any such breaches result in Buyer Losses in excess definition of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate“Material Contract”.
(iij) Anything The waiver of any condition based upon the accuracy of any representation or warranty, or on the performance of or compliance or non-compliance with any covenant or obligation, will not affect the right to indemnification, compensation or other remedy based upon such representations, warranties, covenants and obligations.
(k) The right to indemnification compensation or other remedy based upon the representation, warranties, covenants or obligations contained in this Agreement (or any certificate or document delivered pursuant hereto) will not be affected by any investigations (including any environmental investigation or assessment) conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the contrary herein notwithstandingaccuracy or inaccuracy of or compliance with any such representation, the representations and warranties contained in clauses warranty, covenant or obligation.
(fl) through (h) of Section 3.15 (but only to the extent not subject to clause Each Seller Indemnity Party hereby agrees that (i) the availability of indemnification of the Purchaser Indemnified Parties under this Section 8.3(e)) Article IX shall be deemed determined without regard to any right to indemnification, advancement, contribution or reimbursement that such Seller Indemnity Party may have from the Company (whether such rights may arise from or pursuant to applicable Law, Contract, the Organizational Documents of the Company, the Sellers, or otherwise), and (ii) such Seller Indemnity Party shall not be breached only entitled to any indemnification, advancement, contribution or reimbursement from Purchaser, the extent that Company or any such breaches result in Buyer Losses in excess of Cdn$30,000 in their respective Affiliates for amounts for which the aggregate and then only Purchaser Indemnified Parties would be entitled to the extent such Buyer Losses exceed Cdn$30,000 in the aggregateindemnification under this Article IX (determined without regard to any thresholds, deductibles, caps, survival periods or other limitations).
(iiim) No Notwithstanding anything in this Article IX to the contrary, if a claim may be characterized in multiple ways in accordance with this Article IX such that such claim may or may not be subject to different caps, time limitations and other limitations depending on such characterization, then an indemnified party shall have the right to characterize such claim in a manner that maximizes the recovery and time to assert claims permitted in accordance with this Article IX, and may assert the claim under multiple bases for recovery hereunder; provided, however, that the foregoing shall not be interpreted to allow, and no indemnified party shall be asserted by a Buyer Indemnitee or a Seller Indemniteeentitled to, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock double recovery for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereofsame claim.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Gambling.com Group LTD)
Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims party making a claim under this Agreement Article VIII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article VIII is referred to as the “Indemnifying Party”. The indemnification provided for in Section 8.02 and Section 8.03 shall be limited by subject to the followingfollowing limitations:
(a) If the Closing The aggregate amount of all Losses for which an Indemnifying Party shall not have occurred, recovery of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, be liable pursuant to Section 8.1 8.02(a) or Section 8.28.03(a), as the case may be, shall be limited not exceed the value of the Sale Shares (as measured at the time such claim is made). For the avoidance of doubt, Seller may in its sole and absolute discretion satisfy the amount of any such claim pursuant to actual out-of-pocket expenses the forfeiture and shall in no event include any special, indirect, incidental or consequential damages whatsoevercancellation of the number of Sale Shares equivalent to the dollar value of such claim.
(b) Two years Payments by an Indemnifying Party pursuant to Section 8.02(a) or Section 8.03(a) in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be received by the Closing Date (orIndemnified Party in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, in the case of a claim contribution or other similar agreements for breach of Section 3.15, three years after the Closing Date, and, in the case of a claim for breach of Section 3.11, six years after the Closing Date), Seller shall have no further obligations any such Losses prior to seeking indemnification under this Article 8, this Agreement or otherwise, except for Buyer Losses with respect to which the Buyer Indemnitees have given Seller written notice prior to such dateAgreement.
(c) Two years after In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the Closing Datebreach or alleged breach of this Agreement, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer diminution of value or Buyer Parent written notice prior to such dateany damages based on any type of multiple.
(d) No Buyer Losses Each Indemnified Party shall take, and cause its Affiliates to take commercially reasonable steps to mitigate any Loss subject to Sections 8.02(a) or Seller Losses8.03(a), as the case may be, shall upon becoming aware of any event which would reasonably be asserted by a Buyer Indemnitee expected to, or a Seller Indemniteedoes, as applicablegive rise thereto, with respect to any matter that is covered by insurance, including incurring costs only to the minimum extent proceeds of necessary to remedy the breach that gives rise to such insurance are paidLoss.
(ie) Anything to the contrary herein notwithstanding, No party hereto shall be liable for any Losses based upon or arising out of any inaccuracy in or breach of any of the representations and or warranties of the other party contained in clauses (a) through (e) this Agreement if such party had knowledge of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 in the aggregate.
(ii) Anything to the contrary herein notwithstanding, the representations and warranties contained in clauses (f) through (h) of Section 3.15 (but only to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 in the aggregate.
(iii) No claim inaccuracy or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, pursuant to the provisions of this Article 8, unless the amount of Buyer Losses or Seller Losses, as the case may be, equals at least Cdn$350,000 in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(d), (e) and (f)) by all Buyer Indemnitees shall be limited in the aggregate to the Purchase Price Indemnification Amount. For purposes of this Section 8.3(e)(ii), "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus any adjustment to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) breach prior to the date hereofClosing.
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Certain Limitations. The liability of Seller, Buyer or Buyer Parent, as applicable, for claims under this Agreement shall be limited by the following:
(a) If the Closing shall not have occurred, recovery No Investor Indemnified Party may recover in respect of the Buyer Indemnitees or the Seller Indemnitees, as the case may be, any claim for indemnification made pursuant to Section 8.1 10.2(a) unless and until the aggregate amount of Losses that may be claimed pursuant to Section 10.2(a) exceed $8,726,722.50 (the “Deductible”), and once the Deductible has been reached, the Investor Indemnified Parties may make claims for indemnification for all Losses in excess of the Deductible. No Vantage Indemnified Party may recover in respect of any claim for indemnification made pursuant to Section 10.3(a) unless and until the aggregate amount of Losses that may be claimed pursuant to Section 10.3(a) exceed the Deductible, and once the Deductible has been reached, the Vantage Indemnified Parties may make claims for indemnification for all Losses in excess of the Deductible. Notwithstanding the foregoing, the Deductible will not apply to Losses arising out of or Section 8.2resulting from any inaccuracy in or breach of the Fundamental Representations, as the case may be, shall be limited or with respect to actual out-of-pocket expenses and shall in no event include any special, indirect, incidental or consequential damages whatsoeverclaims relating to any fraud.
(b) Two years after Any Losses recoverable hereunder by an Investor Indemnified Party will be reduced in amount by (i) any insurance proceeds (including under or from the Closing Date R&W Policy) or (orii) any indemnification amounts paid by third parties under any agreement with such third party, in each case, in respect of such Losses and actually obtained by any Investor Indemnified Party in connection with such Losses (in all such cases net of fees, expenses, increases in insurance premiums or any other costs incurred by any Investor Indemnified Party in order to obtain any such proceeds (to the case extent not covered by such proceeds)), except that, for the avoidance of a claim for breach doubt, insurance proceeds actually obtained by any Investor Indemnified Party under the R&W Policy will not be reduced by the insurance premium paid as part of the R&W Policy Costs pursuant to Section 3.157.4), three years and the Investors will (A) use commercially reasonable efforts to obtain such proceeds (other than with respect to claims pursuant to Section 10.2(h)(i)) and (B) to the extent any such proceeds are actually obtained by any Investor Indemnified Party (and other than the insurance premium paid as part of the R&W Policy Costs pursuant to Section 7.4, net of fees, expenses, increases in insurance premiums or any other costs incurred by any Investor Indemnified Party in order to realize any such proceeds to the extent not explicitly covered by such insurance proceeds) after such Losses are recovered from the Closing DateRetained Owners pursuant to this Article X, promptly repay the amount of such Losses, not to exceed the amount of such proceeds net of fees, expenses, increases in insurance premiums or any other costs incurred by any Investor Indemnified Party in order to realize any such proceeds and, in the case of a claim for breach insurance proceeds, not explicitly covered by such insurance (except that, in the case of the insurance premium paid as part of the R&W Policy Costs pursuant to Section 3.117.4, six years after without such adjustment) to the Closing Date), Seller shall have no further obligations under this Article 8, this Agreement or otherwise, except for Buyer Losses Retained Owners. Other than with respect to claims pursuant to Section 10.2(h)(i), the Investors will use commercially reasonable efforts to recover any Losses under the R&W Policy (which Losses are recoverable under the Buyer Indemnitees have given Seller written notice R&W Policy) prior to seeking indemnity from the Retained Owners, in each case, pursuant to the terms of this Agreement (including appealing any denial of coverage with respect to a matter covered by the terms of the R&W Policy and, if applicable, the commencement of any Proceeding against the insurer under the R&W Policy) it being understood and agreed that (1) the Investors will be entitled to seek indemnity from the Retained Owners concurrently with appealing any such date.denial of coverage (it being understood that any and all fees, costs and other expenses incurred by the Investors appealing or litigating any such denial of coverage will constitute indemnifiable Losses hereunder to the extent it is determined that the Losses underlying such claim are indemnifiable hereunder) and (2) with respect to Losses not covered pursuant to the terms of the R&W Policy, the Investors will be entitled to seek indemnity from the Retained Owners without seeking recourse from the R&W Policy. Without limiting the foregoing, each Investor agrees that, in using its commercially reasonable efforts to recover Losses under the R&W Policy, it will, to the extent commercially reasonable to do so, attempt to recover under the R&W Policy all Losses that could be characterized as a breach of the representations and warranties set forth in Article IV regardless of whether such Losses could also be recoverable from the Retained Owners pursuant to this Article X.
(c) Two years after Losses will be determined without duplication of any other Loss for which an indemnification claim has been made or could be made under any representation, warranty, covenant or agreement. The Investor Indemnified Parties and the Vantage Indemnified Parties will not be entitled to recover more than once for the same Loss (including through the determination of the Final Closing Date, Buyer and Buyer Parent shall have no further obligations under this Article 8, this Agreement or otherwise, except for Seller Losses with respect to which the Seller Indemnitees have given Buyer or Buyer Parent written notice prior to such dateConsideration).
(d) No Buyer Notwithstanding anything to the contrary set forth herein, but subject to Section 10.5(j), the maximum amount of indemnifiable Losses that the Retained Owners shall be liable for after the Closing, or Seller that may be recovered by the Investor Indemnified Parties from the Retained Owners, in the aggregate pursuant to Section 10.2(a) after the Closing shall be limited to $8,726,722.50, and the Investor Indemnified Parties shall only be entitled to recover such amount from the Indemnity Escrow Amount in accordance with the terms of the Escrow Agreement, and once the Indemnity Escrow Amount is depleted the Investor Indemnified Parties shall have no further right to recover from the Retained Owners for any indemnifiable Losses pursuant to Section 10.2(a); provided, however, the foregoing shall not apply to Losses arising out of or resulting from any inaccuracy in or breach of the Fundamental Representations; provided, further, to the extent any portion (the “Indemnifiable Portion”) of the Indemnity Escrow Amount is depleted in connection with an indemnification claim pursuant to (i) Section 10.2(a) and arising out of or resulting from any inaccuracy in or breach of the Fundamental Representations or (ii) Sections 10.2(b)-10.2(g), then the Investor Indemnified Parties shall be entitled to recover from the Retained Owners for any indemnifiable Losses arising out of or resulting from any inaccuracy in or breach of any representation or warranty other than Fundamental Representations, up to the amount of the Indemnifiable Portion, in the manner described in Section 10.5(g). For the avoidance of doubt, nothing in this Section 10.5(d) applies to indemnification obligations pursuant to Section 10.2(h), which is addressed in Section 10.5(g)(ii). Notwithstanding anything herein to the contrary, (i) any Losses that are DC REIT Indemnified Taxes and any Losses pursuant to Section 10.2(h) (such Losses, as collectively, the case may be“Aviator Investor Indemnifiable Losses”), in each case, that are recovered from the Indemnity Escrow Funds, shall only be asserted by a Buyer Indemnitee or a Seller Indemniteerecovered from the then-remaining Aviator Investor Indemnity Escrow Amount (and not from the Other Indemnity Escrow Amount) (but the foregoing shall not limit the right of the Investor Indemnified Parties to otherwise recover any such Losses from Aviator Investor under this Agreement), as applicable, (ii) with respect to any matter that Losses (other than Aviator Investor Indemnifiable Losses) recovered hereunder from the Indemnity Escrow Funds, such Losses shall first be recovered from the Other Indemnity Escrow Amount, and after the Other Indemnity Escrow Amount is covered by insurancefully depleted, such Losses shall thereafter be recovered from the Aviator Investor Indemnity Escrow Amount, and (iii) only Aviator Investor shall be liable for any Indemnifiable Portion attributable to any Aviator Investor Indemnifiable Losses previously recovered from the Aviator Investor Indemnity Escrow Amount, and otherwise recoverable pursuant to the extent proceeds last proviso of the first sentence of this Section 10.5(d).
(e) After the Closing, the first $1,000,000 of Losses recoverable hereunder by an Investor Indemnified Party under Section 10.2(a) arising out of or resulting from any inaccuracy in or breach of the Fundamental Representations and Sections 10.2(b)-10.2(g) will be recovered first from the Indemnity Escrow Funds, until the Indemnity Escrow Funds have been distributed to the Retained Owners in accordance with the Escrow Agreement and Section 10.13 or have been exhausted, and thereafter the Investor Indemnified Parties shall be entitled to recover from the Retained Owners for any remaining portion of such insurance are paidLosses in the manner described in Section 10.5(g) (it being understood and acknowledged that for any such Losses in excess in of $1,000,000, the Investor Indemnified Parties shall be entitled to recover from the Retained Owners in the manner described in Section 10.5(g)).
(f) Subject to the requirement set forth in Section 10.5(e), after the Closing any Losses recoverable hereunder by an Investor Indemnified Party under Section 10.2(a) arising out of or resulting from any inaccuracy in or breach of the Fundamental Representations and Sections 10.2(b)-10.2(g) will be recovered, at the sole election of the Investor Indemnified Party, from the Indemnity Escrow Funds, until such amounts have been distributed to the Retained Owners in accordance with the Escrow Agreement and Section 10.13 or have been exhausted, and/or in the manner described in Section 10.5(g).
(i) Anything Notwithstanding anything to the contrary herein notwithstandingset out herein, but subject to Section 10.5(j), the representations and warranties contained in clauses (a) through (e) maximum amount of Section 3.15 and clauses (f) through (h) of Section 3.15 (but only to indemnifiable Losses that the extent there was a violation of applicable Environmental Laws at the time the event referred to in such clauses (f) through (h) occurred) Retained Owners shall be deemed to liable for after the Closing, or that may be breached only to recovered by the extent that any such breaches result in Buyer Losses in excess of Cdn$50,000 in Investor Indemnified Parties from the aggregate and then only to the extent such Buyer Losses exceed Cdn$50,000 Retained Owners, in the aggregate.
(ii) Anything , pursuant to this Agreement after the Closing shall be limited to the contrary herein notwithstanding, the representations Indemnity Escrow Funds and warranties contained in clauses (f) through (h) of Section 3.15 (but only an amount recoverable as described below not to the extent not subject to clause (i) of this Section 8.3(e)) shall be deemed to be breached only to the extent that any such breaches result in Buyer Losses in excess of Cdn$30,000 in the aggregate and then only to the extent such Buyer Losses exceed Cdn$30,000 $30,000,000.00 in the aggregate.
, and subject to the terms set forth in this Section 10.5 (iii) No claim or claims shall be asserted by a Buyer Indemnitee or a Seller Indemnitee, as applicable, excluding indemnification pursuant to Section 10.2(h), to which Section 10.5(g)(ii) shall apply). In the provisions event of this Article 8, unless any outstanding Losses recoverable by an Investor Indemnified Party from the amount of Buyer Losses Retained Owners (or Seller Losses, as in the case may beof DC REIT Indemnified Taxes, equals at least Cdn$350,000 solely from Aviator Investor) as contemplated in the aggregate and then only to the extent such Buyer Losses or Seller Losses, as the case may be, exceed Cdn$350,000 in the aggregate.
(iv) The aggregate amount of Buyer Losses recoverable pursuant to the provisions of this Article 8 (other than with respect to Section 8.1(dSections 10.5(d), (e) and (f), the Investor Indemnified Party shall, to the extent not satisfied in cash by the Retained Owners or solely by Aviator Investor, as applicable (whether by way of distributions of Indemnity Escrow Funds in accordance with, and to the extent permitted by, the terms hereof and the Escrow Agreement, or directly), be entitled to receive, and shall receive, for (A) any Losses recoverable by the Investor Indemnified Parties under Sections 10.2(b), (c), (d) (other than DC REIT Indemnified Taxes) (e), (f) and (g), all Buyer Indemnitees distributions made by the applicable YieldCo or YieldCos in respect of any Equity Securities of any YieldCo or YieldCos held by any of the Retained Owners or any transferee thereof and (B) DC REIT Indemnified Taxes, all distributions made by YieldCo 1 in respect of any Equity Securities of YieldCo 1 held by Aviator Investor. For clarity, DC REIT Indemnified Taxes recoverable by the Investor Indemnified Parties under Section 10.2(d) shall be recoverable solely against Aviator Investor.
(ii) Any Losses recoverable by the Investor Indemnified Parties under Section 10.2(h) shall be recoverable solely against Aviator Investor. To the extent not satisfied in cash by Aviator Investor, the Investor Indemnified Parties shall be entitled to receive, and shall receive, to the extent of such Losses, all distributions made by YieldCo 1 in respect of any Equity Securities of YieldCo 1 held by Aviator Investor. Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge and agree that the recourse set forth in this Section 10.5(g)(ii) constitutes the Investors’ sole recourse with respect to indemnification pursuant to Section 10.2(h).
(iii) For the avoidance of doubt, Aviator Investor shall be solely liable for any Losses attributable to DC REIT Indemnified Taxes and no other Retained Owner shall have any liability with respect to DC REIT Indemnified Taxes.
(h) As solely among the Investors, each Investor agrees that upon any receipt of any payment with respect to any indemnification claim under this Article X, such Investor, if applicable, shall further transmit such payment, or the applicable portion thereof, to the other Investors (or other applicable Investor Indemnified Party) to the extent the Losses resulting from or arising out of such indemnification claim were imposed upon, suffered or incurred by such other Person.
(i) The maximum amount of indemnifiable Losses that the Investors shall be liable for after the Closing, or that may be recovered by the Vantage Indemnified Parties from the Investors, in the aggregate pursuant to this Agreement after the Closing shall be limited to $30,000,000.00. The maximum amount of indemnifiable Losses that the Investors shall be liable for, or that may be recovered by the Vantage Indemnified Parties from the Investors, in the aggregate pursuant to Section 10.3(a) shall be limited to $8,726,722.50; provided, however, the Purchase Price Indemnification Amount. For purposes foregoing shall not apply to Losses arising out of or resulting from any inaccuracy in or breach of the Fundamental Representations.
(j) No limitations set forth in this Article X, including this Section 8.3(e)(ii)10.5, "Purchase Price Indemnification Amount" shall mean the sum of (x) Cdn$13,062,741 (plus or minus will apply with respect to any adjustment claims relating to the Note as contemplated by Section 1.4(e)) and (y) the product of 1,000,000 multiplied by the average of the closing prices reported on the Nasdaq National Market for Buyer Parent Common Stock for the twenty trading days (whether or not any trades of Buyer Parent Common Stock occur on any such day) prior to the date hereoffraud.
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