Certain Limitations. The party making a claim under this 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 6.01 and Section 6.02 shall be subject to the following limitations: (a) The Indemnifying Party shall not be liable to the Indemnified Party for indemnification under Section 6.01(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price (the "Deductible"), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of the Deductible. (b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase Price. (c) 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. (d) 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 had knowledge of such inaccuracy or breach prior to the Closing.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 9.2 and Section 6.02 9.3 shall be subject to the following limitations:
(a) The Indemnifying Party Sellers, Shareholders, and the Member shall not be liable liable, jointly or severally, to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a9.2(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a9.2(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price Two Hundred Thousand Dollars ($200,000) (the "DeductibleBasket"), in which event the Indemnifying Party Sellers, Shareholders and Member shall only be required to pay or be liable for all such Losses in excess of the Deductible.
Two Hundred Thousand Dollars (b) $200,000). The aggregate amount of all Losses for which an Indemnifying Party Sellers shall be liable pursuant to Section 6.01(a9.2(a) or Section 6.02(a), as the case may be, shall not exceed 150% Fifteen Million Dollars ($15,000,000) (the "Cap").
(b) Buyer shall not be liable to the Sellers’ Indemnitees for indemnification under Section 9.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.3(a) exceeds the Purchase PriceBasket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 9.3(a) shall not exceed the Cap; except for all payments due hereunder.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 9.4(a) Seller and Section 9.4(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 5.1, Section 5.2, Section 5.8, Section 5.18(k), Section 5.18(l), Section 5.19(j), Section 5.20(a), Section 5.22, Section 6.1, Section 6.2 and Section 6.4, the covenants set forth in Section 3.4, Section 7.5, and Section 7.6, or fraud and/or intentional omission or intentional misrepresentation with respect to any representation or warranty of Sellers, Shareholders or the representations Member.
(d) For purposes of this Article IX, any inaccuracy in or warranties breach of Seller any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.2 and Section 6.02 8.3 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Purchaser Indemnitees for indemnification under Section 6.01(a8.2(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.2(a) or Section 6.02(bexceeds $215,360 (the “Basket”), as the case may be, exceeds 100% of the Purchase Price (the "Deductible"), in which event the Indemnifying Party shall and then only be required to pay or be liable for such Losses in excess of the Deductible.
(b) Basket. The aggregate amount of all Losses for which an Indemnifying Party Seller shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, Article VIII shall not exceed 150% $215,360 (the “Cap”).
(b) Purchaser shall not be liable to the Seller Indemnitees for indemnification under Section 8.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.3(a) exceeds the Basket, and then only for such Losses in excess of the Purchase PriceBasket. The aggregate amount of all Losses for which Purchaser shall be liable pursuant to Article VIII shall not exceed the Cap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, incidental, consequential, special, or indirect damages, including loss the limitations set forth in the first sentence of future revenue or income, loss Section 8.4(a) and the first sentence 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.
(dSection 8.4(b) Seller shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation or representation or warranty in Section 5.1, Section 5.2 and Section 5.7.
(d) For purposes of the representations this Article VIII, any inaccuracy in or warranties breach of Seller any representation or warranty, and any Loss, shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior warranty.
(e) Seller shall not be liable to the ClosingPurchaser Indemnitees for indemnification with respect to any Losses attributable to Taxes arising in any taxable period (or portion thereof) beginning after the Closing Date.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 Sections 8.2 and Section 6.02 8.3 shall be subject to the following limitations:
(a) The Indemnifying Party Shareholders shall not be liable to the Indemnified Party Parent Indemnitees for indemnification under Section 6.01(a8.2(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.2(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $250,000 (the "“Deductible"”), in which event the Indemnifying Party Shareholders shall only be required to pay or be liable for all such Losses in excess of the Deductible.
(b) . The aggregate amount of all Losses for which an Indemnifying Party Shareholders shall be liable pursuant to Section 6.01(a8.2(a) or Section 6.02(a), as the case may be, shall not exceed 150% the Indemnification and Adjustment Holdback Amount.
(b) Parent shall not be liable to the Shareholder Indemnitees for indemnification under Section 8.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.3(a) exceeds the Purchase PriceDeductible, in which event Parent shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Parent shall be liable pursuant to Section 8.3(a) shall not exceed the Indemnification and Adjustment Holdback Amount.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Sections 8.4(a) Seller and 8.4(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Sections 3.1, 3.2(a), 3.4, 3.19, 3.24, 4.1, 4.3, 4.11, 4.12 and 4.13.
(d) For purposes of the representations this Article VIII, any inaccuracy in or warranties breach of Seller any representation or warranty shall 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) The Indemnified Party’s right to indemnification under this Agreement if Buyer had knowledge Article VIII on account of any Losses shall be reduced by the net amount of all reductions in cash income Taxes paid by the Indemnified Party and its Affiliates by reason of such inaccuracy Loss in the taxable year or breach prior period in which the relevant Loss was incurred for income tax purposes. For purposes of this Agreement, the amount of any reduction in cash income Taxes paid by the Indemnified Party and its Affiliates shall be calculated by measuring the difference between the amount of income Taxes that would be due (without regard to payments or overpayments) to a Tax Authority with respect to the ClosingIndemnified Party and its Affiliates, without taking into account any deductions, credits, losses or other Tax attributes associated with any Loss, and the amount of Taxes actually due (without regard to payments or overpayments) to a Tax Authority with respect to the Indemnified Party and its Affiliates taking into account the deductions, credits, losses or other Tax attributes resulting from any Loss; provided, that if any such reduction in cash income Taxes paid is realized by the Indemnified Party and its Affiliates after any payment is made under this Article VIII, the Indemnified Party shall pay to the Indemnifying Party the amount of any such reduction in cash income Taxes paid within fifteen (15) days after filing any income Tax Return (which for this purpose shall not include any payment of estimated Taxes) that reflects any reduction in cash income Taxes paid by the Indemnified Party and its Affiliates.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party for indemnification Buyer Indemnitees under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $100,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Seller shall only be required to pay or be liable for all such Losses in excess of the Deductible.
(b) Basket. The aggregate amount of all Losses for which an Indemnifying Party Seller shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase PricePrice (the “Cap”).
(b) Buyer shall not be liable to the Seller 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 from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 8.04(a) Seller and Section 8.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 3.01, Section 3.03, Section 3.19, Section 3.20, Section 3.24 or Section 4.01 or any Liability that is not included as a Final Liability.
(d) For purposes of this ARTICLE VIII, any inaccuracy in or breach of any representation or warranty shall 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 indemnification obligation of the representations or warranties Seller pursuant to Section 8.02 shall be effected by wire transfer of immediately available funds from the Seller contained to an account designated in this Agreement if writing by the applicable Buyer had knowledge of such inaccuracy or breach prior to Indemnitee within fifteen (15) days after the Closingdetermination thereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (Spendsmart Networks, Inc.)
Certain Limitations. The party making a claim under this 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 6.01 9.02 and Section 6.02 9.03 shall be subject to the following limitations:
(a) The Indemnifying Party Stockholders shall not be liable to the Indemnified Party Parent Indemnitees for indemnification under Section 6.01(a9.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a9.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $200,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Stockholders shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party Stockholders shall be liable pursuant to Section 6.01(a9.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% $10,000,000 (the “Cap”).
(b) Parent shall not be liable to the Stockholder Indemnitees for indemnification under Section 9.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.03(a) exceeds the Purchase PriceBasket, in which event Parent shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Parent shall be liable pursuant to Section 9.03(a) shall not exceed the Cap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 9.04(a) Seller and Section 9.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in the first sentence of the representations Section 3.01, Section 3.02(a), Section 3.04, Section 3.10(a), Section 3.20, Section 3.26, Section 3.27, Section 3.29, Section 4.01, Section 4.03, Section 4.04, Section 5.01, Section 5.03 and Section 5.05.
(d) For purposes of this ARTICLE IX, any inaccuracy in or warranties breach of Seller any representation or warranty shall 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) Payments made by an Indemnifying Party pursuant to this Agreement if Buyer had knowledge ARTICLE IX in respect of any Losses shall be limited to the amount of any Loss that remains after deducting therefrom the amount of recovery by the relevant Indemnified Party under any insurance in respect of such inaccuracy matter.
(f) Except with respect to claims arising from fraud, criminal activity or breach prior willful misconduct on the part of a party hereto in connection with the transactions contemplated by this Agreement, in no event shall either the Stockholders or the Parent be liable to the Closingother for any consequential, exemplary or special damages (other than indemnification for amounts paid or payable to third parties in respect of any Third Party Claim for which indemnification hereunder is otherwise required).
(g) The Stockholders shall have no further obligation to indemnify Parent with respect to any Losses that would otherwise be indemnifiable under this ARTICLE IX to the extent that any such indemnification obligation is fully satisfied through a reduction in the Merger Consideration pursuant to the terms and conditions of ARTICLE II of this Agreement.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 9.2 and Section 6.02 9.3 shall be subject to the following limitations:
(a) The Indemnifying Party Stockholders and the Optionholders shall not be liable to the Indemnified Party Parent Indemnitees for indemnification under Section 6.01(a9.2(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a9.2(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $500,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Stockholders and Optionholders shall only be required to pay or be liable for all such Losses from the first dollar in excess accordance with the provisions, and subject to the limitations, of this Agreement. Except for Losses arising from a breach of a Fundamental Representations or a breach of the Deductiblerepresentations and warranties set forth in Section 3.8, a claim by Parent hereunder shall be limited to the amount of the remaining Escrow Fund. Losses arising from a breach of the Fundamental Representations and a breach of Sections 3.8, shall not be so limited but the aggregate amount of all Losses for which any Stockholder or Optionholder shall be liable pursuant to Section 9.2 shall not exceed the overall consideration received by such Stockholder or Optionholder under this Agreement.
(b) Parent shall not be liable to the Stockholder Indemnitees for indemnification under Section 9.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.3(a) exceeds the Basket, in which event Parent shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which an Indemnifying Party Parent shall be liable pursuant to Section 6.01(a9.3(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase Price$2,500,000.
(c) In no event The amount of any Loss subject to indemnification shall be calculated net of (a) any Tax Benefit inuring to the Indemnified Party on account of such Loss and (b) any insurance proceeds or any indemnity, contribution or other similar payment recoverable by the Indemnified Party from any third party with respect thereto. If the Indemnified Party receives such insurance proceeds, contribution or similar payments after being indemnified with respect to some or all of such Loss, such Indemnified Party shall pay to the Indemnifying Party be liable the lesser of (i) the amount of such insurance proceeds or indemnity, contribution or similar payment, less reasonable out-of-pocket expenses incurred in connection with such recovery and (ii) the aggregate amount paid to any such Indemnified Party for any punitivewith respect to such Loss. If the Indemnified Party receives a Tax Benefit after an indemnification payment is made to it, incidental, consequential, special, or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating the Indemnified Party shall promptly pay to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple.
(d) 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 Indemnifying Party the representations or warranties of Seller contained in this Agreement if Buyer had knowledge amount of such inaccuracy Tax Benefit at such time or breach prior times as and to the Closingextent that such Tax Benefit is realized by the Indemnified Party. For purposes hereof, “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes which otherwise would have been paid, in each case computed at the highest marginal tax rates applicable to the recipient of such benefit. The Indemnified Party shall seek full recovery under all insurance policies covering any Loss to the same extent as it would if such Loss were not subject to indemnification hereunder.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Sellers shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $25,000 (the "DeductibleBasket"), in which event the Indemnifying Party Sellers shall only be required to pay or be liable for all such Losses in excess from the first dollar. The aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 8.02(a) shall not exceed ten percent (10%) of the Deductibletotal Purchase Price actually paid by Buyer to such Seller (the "Cap").
(b) Buyer shall not be liable to the Seller 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 from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed ten percent (10%) of the total Purchase Price actually owed by Buyer under the Agreement as of the time of the applicable Loss.
(c) Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 3.01, Section 3.04, Section 3.13, Section 3.17, Section 3.21, Section 4.01 and Section 4.04.
(d) The aggregate amount of all Losses for which an Indemnifying Party any Seller shall be liable pursuant to Section 6.01(a8.02(a) and (b) and Section 6.02, whether or Section 6.02(a), as not such Losses are subject to the case may beCap, shall not exceed 150% be limited to the portion of the Purchase PricePrice actually received by such Seller hereunder (other than Losses arising from fraud or willful misconduct on the part of such Seller), provided, however, that for purposes of determining the portion of the Purchase Price actually received by such Seller pursuant to this Section 8.04(d), any Buyer Shares received by any Seller hereunder shall not be considered received by the appliable Seller until such Buyer Shares are no longer subject to the restrictions contained in Section 5.06.
(ce) 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 For purposes of this AgreementARTICLE VIII, or diminution of value or any damages based on any type of multiple.
(d) 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 representation or warranties of Seller warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(f) Each Indemnified Party and each Indemnifying Party shall use its commercially reasonable efforts to mitigate any Loss arising from or related to ARTICLE VI or this Agreement if Buyer had knowledge ARTICLE VIII upon becoming aware of such inaccuracy any event or breach prior to the Closingcircumstance that gives rise thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (Eyegate Pharmaceuticals Inc)
Certain Limitations. The party making a claim rights of Buyer Indemnitees and Seller Indemnitees to indemnification under this ARTICLE VI is referred to Article 10 shall be limited 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 6.01 10.5 and Section 6.02 shall be subject to the following limitationsas follows:
(a) No Claim Notice for indemnification may be provided with respect to any Claim for breach of a representation, warranty, covenant or other agreement in this Agreement beyond the survival period specified in Section 10.1; provided, however, that for purposes hereof, a second Claim Notice delivered pursuant to Section 10.5(c) shall be deemed to have been delivered at the same time as the initial Claim Notice to which the Claim relates.
(b) The Indemnifying Party aggregate liability of each Seller pursuant to Section 10.3(a) and Section 10.3(b)(i), together with all Losses recovered by the Buyer Indemnitees under Section 10.3(a) and Section 10.3(b)(i), shall not exceed the amount of the Aggregate Consideration received by such Seller.
(c) The recovery of Losses by any Buyer Indemnitee pursuant to Section 10.3(b)(ii) and Section 10.3(b)(iii), together with all Losses recovered by other Buyer Indemnitees under such provisions, shall be limited to an aggregate of $15,000,000, and the aggregate liability of each Seller pursuant to Section 10.3(b)(ii) and Section 10.3(b)(iii) shall not exceed such Seller’s Pro Rata Share of $15,000,000.
(d) The recovery of Losses by any Seller Indemnitee pursuant to Section 10.2(a) and Section 10.2(b), together with all Losses recovered by other Seller Indemnitees under such provisions, shall be limited to an aggregate of $15,000,000.
(e) No Buyer Indemnitee shall be entitled to recover Losses pursuant to Section 10.3(b)(i) or Section 10.3(b)(ii) and no Seller Indemnitee shall be entitled to recover losses pursuant to Section 10.2(b), unless:
(i) the Buyer Indemnitees, collectively, or the Seller Indemnitees, collectively, shall have suffered or incurred aggregate Losses otherwise recoverable under this Article 10 in an amount in excess of the Deductible, and then recovery shall be permitted only to the extent such Losses exceed $500,000 (i.e., $500,000 of the Deductible shall be recoverable); and
(ii) after the Deductible has been met, the Buyer 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 $50,000, 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. Notwithstanding the foregoing, any claim for indemnification (and the Losses recoverable therefrom) that may be brought under both (A) Section 10.3(b)(i) and/or Section 10.3(b)(iii), on the one hand, and (B) any other subsection of Section 10.3, on the other hand, shall not be liable subject to any limitation specified in this Section 10.4(e).
(f) Notwithstanding anything to the Indemnified Party contrary in this Agreement:
(i) For purposes of determining whether a representation or warranty contained herein, other than those set forth in Sections 4.12, 4.16, 5.3 and 5.4, has been breached for indemnification under Section 6.01(a) purposes of this Article 10 and Section 6.02(a)determining the amount of Losses suffered thereby by any Buyer Indemnitee or Seller Indemnitee, as the case may be, until each representation and warranty set forth in this Agreement (other than as aforesaid), and any qualification with respect to any such representation or warranty set forth in the aggregate Disclosure Schedule in the case of representations or warranties by Sellers, 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 10 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 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 2.3 to the extent of the amount of all Losses such Loss given effect in respect of indemnification under Section 6.01(a) or Section 6.02(b), as such adjustment to the case may be, exceeds 100% of the Purchase Price (the "Deductible"), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of the DeductibleAggregate Consideration.
(bg) The aggregate amount of all Losses for which an Indemnifying Party required to be paid pursuant to this Article 10 shall be liable pursuant reduced to Section 6.01(a) the extent of any tax benefits actually realized, or Section 6.02(a), as insurance proceeds directly or indirectly received by the case may be, shall not exceed 150% of the Purchase PriceIndemnified Party.
(ch) In no event shall any Indemnifying Party Any Losses required to be liable to any Indemnified Party for any punitive, incidental, consequential, special, paid by ACS hereunder may be paid in cash or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to in Transaction Units (valued at the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple.
(d) 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 Trailing Average Price as determined as of the representations or warranties date of Seller contained in this Agreement if Buyer had knowledge payment of such inaccuracy or breach prior to the ClosingLosses).
Appears in 1 contract
Sources: Contribution Agreement (Regency Energy Partners LP)
Certain Limitations. The party making a claim under this 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 6.01 and Section 6.02 shall be subject to the following limitations:
(a) The Indemnifying Party shall An indemnifying party will not be liable to the Indemnified Party for indemnification have any liability under Section 6.01(a10.1(a)(i) and or Section 6.02(a)10.1(b)(i) hereof, as the case may bebe (other than with respect to the representations and warranties in Sections 5.2, 5.19 and 6.5) until the aggregate amount of Losses actually incurred by the indemnified parties with respect to all Losses in respect of indemnification under Section 6.01(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price claims will exceed $50,000,000 (the "Deductible"“Basket”), in which event event, the Indemnifying Party shall only indemnifying party will be required to pay or be liable for the entire amount of such Losses in excess of the DeductibleBasket. Claims made pursuant to the representations and warranties contained in or made pursuant to Sections 5.2, 5.19 and 6.5 hereof will not be subject to the Basket. In addition to the foregoing, except for Losses arising out of, attributable to or resulting from any breach of the representations and warranties in Sections 5.2, 5.19 and 6.5, the maximum aggregate amount of Losses for which indemnity with respect to breaches of representations and warranties may be sought will be $500,000,000 (the “Cap”).
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase Price.
(c) 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 Subject to the breach or alleged breach provisions of this Agreement, or diminution of value or any damages based on any type of multiple.
(d) Seller shall not be liable under this ARTICLE VI for any Losses based upon or arising out of any inaccuracy in or breach Section 3.2 and Article XI and the indemnifications provisions of any of the representations or warranties of Seller contained Ancillary Agreements, in each case with respect to the matters covered thereby, the parties hereto agree that, following the Closing, the indemnification and other provisions set forth in this Agreement if Buyer had knowledge Article X will be the sole and exclusive remedy of such inaccuracy Parent against Northrop Grumman, TRW and TRW Automotive or breach prior their Affiliates, on the one hand, and of Northrop Grumman, TRW and TRW Automotive and their Affiliates against Parent or the Company and their Affiliates, on the other hand, arising out of this Agreement. Notwithstanding the foregoing, nothing herein will eliminate the availability to the Closingparties of any equitable remedies with respect to any dispute that may arise under this Agreement or limit any claim based upon fraud.
Appears in 1 contract
Sources: Master Purchase Agreement (Northrop Grumman Corp /De/)
Certain Limitations. The party making a claim under this ARTICLE VI is referred to as Parent may not receive any amounts from 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 Escrow Fund for in Section 6.01 and Section 6.02 shall be subject to the following limitations:
(a) The Indemnifying Party shall not be liable to the Indemnified Party for indemnification Losses arising under Section 6.01(a10.02(a)(i) or Section 10.02(a)(vi) unless and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification arising under Section 6.01(a10.02(a)(i) or and Section 6.02(b10.02(a)(vi) exceeds $431,250 (the “Basket Amount”), as subject to the case may be, exceeds 100% right of the Purchase Price (Shareholder Agent to object; and in such case, Parent may recover from the "Deductible"), in which event the Indemnifying Party shall only be required to pay or be liable for Escrow Fund all of such Losses in excess of the Deductible.
(b) The aggregate amount of all Basket Amount. Unless and until such cumulative Losses exceed the Basket Amount, Parent may not recover any amounts from the Escrow Fund for which an Indemnifying Party shall be liable pursuant to Losses arising under Section 6.01(a10.02(a)(i) or Section 6.02(a10.02(a)(vi). Notwithstanding the foregoing, the Basket Amount shall not apply to any (i) claims for Losses made under Section 4.01 (Organization and Qualification; Subsidiary), as Section 4.02 (Articles of Incorporation, Regulations and Minutes), Section 4.03 (Capitalization and Indebtedness), Section 4.04 (Authority Relative to this Agreement) and Section 4.27 (Brokers) (the case may beforegoing, collectively, the “Fundamental Representations”), (ii) claims for intentional or willful misrepresentation of material facts that constitute common law fraud under applicable Law, or (iii) claims for Losses under Section 10.02(a)(vii). For the avoidance of doubt, the Basket Amount shall not exceed 150% apply to any indemnification claims under Sections 10.02(a)(ii) through 10.02(a)(v) or Section 10.02(a)(vii). For the purpose of quantifying a Loss under this Article X or to determine if a breach of a representation or warranty has occurred, any representation or warranty of the Purchase Price.
Company that is qualified in scope as to materiality (cincluding a Company Material Adverse Effect) In shall be deemed to be made or given without such qualifications. There shall be no right of contribution for any Shareholder from any Parent Indemnitee (including the Surviving Entity) with respect to any Loss claimed by any Parent Indemnitee, and in no event shall any Indemnifying Party Shareholder be liable entitled to require that any Indemnified Party for claim be first made or brought against any punitiveother Person, incidental, consequential, specialincluding the Surviving Entity. No limit on indemnification in this Section 10.02 shall limit, or indirect damagesbe deemed to limit, 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.
(d) Seller shall not be liable under this ARTICLE VI for any Losses based upon or arising out rights of any inaccuracy in Parent Indemnitee against any Shareholder arising (i) under the letter of transmittal delivered by such Shareholder or breach of the other documents delivered by such Shareholder pursuant to Section 3.04 or (ii) under any of the representations or warranties of Seller contained in this Agreement if Buyer had knowledge of other agreement that such inaccuracy or breach prior to the ClosingShareholder has with any Parent Indemnitee.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 obligations provided for in Section 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller Parties shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02
(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price Two Hundred Seventy-Five Thousand Dollars ($275,000) (the "Deductible"“Basket”), in which event the Indemnifying Party Seller Parties shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party the Seller Parties shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as the case may be, shall not exceed 15015% of the Purchase Price (the “Cap”); provided, however, except in the event of Fraud, in no event shall the aggregate liability of the Seller Parties for all indemnification obligations hereunder exceed the amount of the Purchase Price.
(cb) 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.
(d) Seller Buyer shall not be liable to the Seller Indemnitees for indemnification under this ARTICLE VI 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 any all such Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.
(c) Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(b) shall not apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 4.02, Section 4.04, Section 4.12, Section 4.13, Section 5.01, Section 5.02 and Section 5.03.
(d) Solely for purposes of calculating the representations amount of Losses under this Article VIII, any inaccuracy in or warranties breach of Seller any representation or warranty shall 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) The amount of any indemnity obligation of any Indemnifying Party to the Indemnified Parties provided in this Agreement if Buyer had knowledge shall be computed net of any insurance proceeds actually received by an Indemnified Party (net of any deductible amounts, increases in premiums and costs and expenses incurred with respect to such inaccuracy insurance claims) in connection with or breach as a result of any claim giving rise to an indemnification claim hereunder. If the indemnity amount is paid to the Indemnified Parties by any Indemnifying Party prior to the ClosingIndemnified Party’s actual receipt of insurance proceeds related thereto, the Indemnified Party shall, if permissible by the terms of the applicable policy, assign its right to such insurance and allow the Indemnifying Party to pursue collection of such insurance proceeds or, if such payment has been made by any of the Indemnifying Parties, and an Indemnified Party subsequently receives such insurance proceeds, then the Indemnified Party shall promptly pay to the Indemnifying Party (or its designee) the amount of such insurance proceeds subsequently received (net of all related costs, expenses and other Losses), but not more, in the aggregate, than the indemnity amount paid by the Indemnifying Party. Notwithstanding the foregoing, no Indemnified Party shall be required to (i) pursue such insurance prior to seeking indemnification under this Article VIII or (ii) commence litigation to recover proceeds under such insurance policies if it is unreasonable do so.
(f) The amount of any indemnity provided in this Agreement shall be reduced (but not below zero) by the amount of any reduction in Taxes actually paid or payable by any Indemnified Party during the Tax year of the applicable Loss (with respect to such Loss) as a result of the matter giving rise to such indemnity claim.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 obligations provided for in Section 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller Parties shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price Five Hundred Thousand and 00/100 dollars ($500,000) (the "Deductible"“Basket”), in which event the Indemnifying Party Seller Parties shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party the Seller Parties shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as the case may be, shall not exceed 15015% of the Purchase Price (the “Cap”); provided, however, except in the event of Fraud, in no event shall the aggregate liability of the Seller Parties for all indemnification obligations hereunder exceed the amount of the Purchase Price.
(cb) 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.
(d) Seller Buyer shall not be liable to the Seller Indemnitees for indemnification under this ARTICLE VI 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 any all such Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.
(c) Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(b) shall not apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 4.02, Section 4.06(c)(i), Section 4.15, Section 4.16, Section 5.01, Section 5.02, Section 5.04 and Section 5.05.
(d) Solely for purposes of calculating the representations amount of Losses under this Article VIII, any inaccuracy in or warranties breach of Seller any representation or warranty shall 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) The amount of any indemnity obligation of any Indemnifying Party to the Indemnified Parties provided in this Agreement if Buyer had knowledge shall be computed net of any insurance proceeds actually received by an Indemnified Party (net of any deductible amounts, increases in premiums and costs and expenses incurred with respect to such inaccuracy insurance claims) in connection with or breach as a result of any claim giving rise to an indemnification claim hereunder. If the indemnity amount is paid to the Indemnified Parties by any Indemnifying Party prior to the ClosingIndemnified Party’s actual receipt of insurance proceeds related thereto, the Indemnified Party shall, if permissible by the terms of the applicable policy, assign its right to such insurance and allow the Indemnifying Party to pursue collection of such insurance proceeds or, if such payment has been made by any of the Indemnifying Parties, and an Indemnified Party subsequently receives such insurance proceeds, then the Indemnified Party shall promptly pay to the Indemnifying Party (or its designee) the amount of such insurance proceeds subsequently received (net of all related costs, expenses and other Losses), but not more, in the aggregate, than the indemnity amount paid by the Indemnifying Party. Notwithstanding the foregoing, no Indemnified Party shall be required to (i) pursue such insurance prior to seeking indemnification under this Article VIII or (ii) commence litigation to recover proceeds under such insurance policies if it is unreasonable to do so.
(f) The amount of any indemnity provided in this Agreement shall be reduced (but not below zero) by the amount of any reduction in Taxes actually paid or payable by any Indemnified Party during the Tax year of the applicable Loss (with respect to such Loss) as a result of the matter giving rise to such indemnity claim.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 9(b) and Section 6.02 9(c) shall be subject to the following limitations:
(ai) The Indemnifying Party Stockholders shall not be liable to the Indemnified Party 4Front Indemnitees for indemnification under Section 6.01(a9(b)(i) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a9(b)(i) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $165,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Stockholders shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party the Stockholders shall be liable pursuant to Section 6.01(a9(b)(i) or Section 6.02(a), as the case may be, shall not exceed 150% of $1,650,000 (the Purchase Price“Cap”).
(cii) 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.
(d) Seller The Company shall not be liable to the Island Indemnitees for indemnification under this ARTICLE VI Section 9(c)(i) until the aggregate amount of all Losses in respect of indemnification under Section 9(c)(i) exceeds the Basket, in which event the Company shall be required to pay or be liable for any all such Losses from the first dollar. The aggregate amount of all Losses for which the Company shall be liable pursuant to Section 9(c)(i) shall not exceed the Cap.
(iii) Notwithstanding the foregoing, the limitations set forth in Sections 9(d)(i) and 9(d)(ii) shall not apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Island Fundamental Representation or 4Front Fundamental Representation.
(iv) No Stockholder shall be responsible for Losses pursuant to this Section 9 in excess of the representations total consideration received by such Stockholder pursuant to this Agreement and/or the Exchange Agreement, except for Losses arising out of Fraud on the part of such Stockholder.
(v) For purposes of this Section 9, any inaccuracy in or warranties breach of Seller any representation or warranty shall be determined without regard to any materiality, Island Material Adverse Effect, Company Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller and Shareholders shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $200,000 (the "DeductibleBasket"), in which event the Indemnifying Party Seller and Shareholders shall only be required to pay or be liable for all Losses in excess of the Deductible.
(b) Basket. The aggregate amount of all Losses for which an Indemnifying Party Seller and Shareholders shall be liable pursuant to Sections 8.02(a), 8.02(f), 8.02(g), 8.02(h) and 8.02(i) shall not exceed $4,000,000 (the "Cap").
(b) Buyer shall not be liable to the Seller 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 Losses in excess of the Basket. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 6.01(a8.03(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase PriceCap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 8.04(a) Seller and Section 8.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation.
(d) Solely for purposes of determining the amount of Losses payable with respect to an indemnification claim for an inaccuracy in or breach of representation and warranty, the amount of Losses shall 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) Each Shareholders' (i) liability to Buyer for indemnification for any individual claim hereunder shall be limited to the same percentage of the amount of the claim as shall equal his, her or its Pro Rata Share (provided, however, that if the basis for such claim is a breach by an individual Shareholder of any representation or warranty which such Shareholder made with respect to itself or himself [i.e., not a representation or warranty with respect to the Company], or a breach by such individual Shareholder of a covenant to which such Shareholder is subject, then the breaching Shareholder shall bear full liability to Buyer for the same, up to such Shareholder's Pro Rata Share of the Purchase Price, and to the extent that the Buyer shall have offset payments under the Buyer Parent Note for the same, the breaching Shareholder shall cross-indemnify each other Shareholder for the amounts which it or he was entitled to, but did not receive, under the Note; provided, that for the avoidance of doubt, no Shareholder other than such breaching Shareholder shall have any personal liability to Buyer for such breach other than in connection with Buyer's right to set off against the entire $4 million principal balance of the Buyer Parent Note pursuant to this Article VIII); and (ii) aggregate liability to Buyer for indemnification under this Agreement shall be limited to such Shareholder's Pro Rata Share of the Purchase Price; provided, however, that neither such limitations nor any other provision of this Agreement shall be interpreted or otherwise operate to limit Buyer's right to indemnification for the full amount of Losses arising out of a breach of a representation or warranty by any Shareholder, by means of Buyer exercising its right of setoff against the full $4,000,000 principal balance Buyer Parent Note , irrespective of any possible interpretation or application of the "Pro Rata" language in this Section or the limitations on which Shareholders are deemed to be making the representations or and warranties of Shareholders as stated in the preamble to Article III.
(f) Neither Seller contained nor the Shareholders shall have any liability to any Buyer Indemnitee for any expense or other Losses incurred after Closing by such Buyer Indemnitee or the Target Companies relating to FDA regulatory or franchise law compliance issues arising or actions made necessary as a result of the Restructuring, including, without limitation, the conversion of several Target Companies from corporations to limited liability companies in this Agreement if Buyer had knowledge of such inaccuracy or breach prior to the ClosingRestructuring.
Appears in 1 contract
Sources: Stock Purchase Agreement (Turning Point Brands, Inc.)
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) until and Section 6.02(a), as the case may be, until unless the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% three quarters of one percent (0.75%) of the Purchase Price (the "“Seller Deductible"”), in which event the Indemnifying Party Seller shall only be required to pay or be liable for all such Losses in excess of the Seller Deductible.
(b) . The aggregate amount of all Losses for which an Indemnifying Party Seller shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% the Indemnity Holdback Amount (the “Cap”).
(b) Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) shall not apply to Losses based upon, arising out of, with respect to or by reason of the Purchase Priceany inaccuracy in or breach any Fundamental Seller Reps.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special, punitive or indirect damages, special 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, unless actually paid to a third party.
(d) Seller shall not be liable For purposes of calculating the amount of Losses incurred under this ARTICLE VI for any Losses based upon or arising out of VIII in connection with any inaccuracy in or breach of any representation or warranty set forth in this Agreement, but not for purposes of the representations determining whether such breach or warranties of Seller inaccuracy has occurred, such representation or warranty shall be read without regard for, or giving effect to any reference to materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Sellers shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and or Section 6.02(a), as the case may be, 8.02(b) until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, 8.02(b) exceeds 100% of the Purchase Price $50,000 (the "“Deductible"”), in which event the Indemnifying Party Sellers shall only be required to pay or be liable for only those Losses in excess of the Deductible. Sellers shall not be liable to the Buyer Indemnitees for indemnification under Section 8.02(a) or Section 8.02(b) for any Losses in excess of $1,500,000 (the “Cap”).
(b) The aggregate amount of all Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) until such Losses for exceed the Deductible in which an Indemnifying Party event Buyer shall be required to pay or be liable pursuant to Section 6.01(a) or Section 6.02(a), as for only those Losses in excess of the case may be, Deducible. Buyer shall not exceed 150% be liable to the Seller Indemnitees for indemnification under Section 8.03(a) for any Losses in excess of the Purchase PriceCap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 8.04(a) Seller and Section 8.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 3.01, Section 3.02, Section 5.01 and Section 5.04, which Losses shall be limited to an amount equal to the Purchase Price.
(d) For purposes of the representations this Article VIII, any inaccuracy in or warranties breach of Seller any representation or warranty shall 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) Payments by an Indemnifying Party pursuant to Section 8.02 or Section 8.03 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 actually received by the Indemnified 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 insurance premiums or other chargebacks (it being agreed that neither party shall have any obligation to seek to recover any insurance proceeds in connection with making a claim under this Agreement if Buyer had knowledge Article VIII 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 inaccuracy or breach reduction in Losses for which the Indemnified Party was indemnified prior to the Closingrealization of reduction of such Losses). Furthermore, payments by an Indemnifying Party pursuant to Section 8.02 or Section 8.03 in respect of any Loss shall be (i) reduced by an amount equal to any Tax benefit actually realized as a result of such Loss by the Indemnified Party, and (ii) increased by an amount equal to any Tax imposed on the receipt of such indemnity payment. 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 minimum extent necessary to remedy the breach that gives rise to such Loss. No Losses may be claimed under Section 8.02 or Section 8.03 by any Indemnified Party to the extent such Losses are included in the calculation of any adjustment to the Purchase Price pursuant to Section 2.03.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Legend Oil & Gas, Ltd.)
Certain Limitations. The party making a claim under this 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 6.01 and Section 6.02 shall be subject to the following limitations:
(a) The Indemnifying Party No claim for Losses shall not be liable to the Indemnified Party for indemnification made under Section 6.01(a9.2(a) and or under Section 6.02(a), as the case may be, until 9.3(a) unless the aggregate amount of all Losses in respect of indemnification under Section 6.01(a) or Section 6.02(b), as exceeds [***] for which claims are made hereunder by the case may be, exceeds 100% of the Purchase Price Indemnified Party (the "DeductibleBasket"), in which event case the Indemnifying Indemnified Party shall only be required entitled to pay or be liable seek compensation for Losses in excess of the Deductible.
(b) The Basket, but only up to a maximum aggregate amount of [***] (the "Indemnification Cap"); provided, however, that the foregoing Basket and Indemnification Cap shall not apply to Losses resulting from (i) Seller's Fraud or (ii) any breach of any Fundamental Rep made by Seller; provided, further, that aggregate indemnification obligations of the Indemnified Party for all Losses for resulting from any breach of any Fundamental Rep shall not exceed an amount equal to [***] (the "[***]"). Notwithstanding anything to the foregoing, with respect to any claim as to which an Indemnifying the Indemnified Party may be entitled to indemnification under Section 9.2(a) or under Section 9.3(a), (x) no Party shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase Price.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special, Loss resulting from 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.
(d) 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 representation or warranty if the representations or warranties of Seller contained in this Agreement if Buyer Party seeking indemnification for such Loss had knowledge of such inaccuracy breach or the underlying facts of such breach prior before the Initial Closing and (y) the Indemnifying Party shall not be liable for any individual or series of related Losses which do not exceed [***] (the "De Minimis Amount") (which Losses shall not be counted toward the Basket); provided, however, that such de minimis limitation shall not apply with respect to Fraud. The aggregate indemnification obligations of the Indemnified Party for claims made under Section 9.2(b) or Section 9.3(b) shall not exceed the [***] . For the avoidance of doubt, none of the Basket, Indemnification Cap, [***] or De Minimis Amount limitations shall apply with respect to any Losses under Section 9.2(c) or Section 9.3(d).
(b) The amount of any Loss for which indemnification is provided under Section 9.2 or Section 9.3 shall be net of (i) any amounts actually received by the Indemnified Party pursuant to any indemnification by or indemnification agreement with any third party in respect of such Loss and (ii) any insurance proceeds actually received in respect of such Loss as an offset against such Loss. If the amount to be netted hereunder from any payment required under Section 9.2 or Section 9.3 is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party pursuant to this Article IX, the Indemnified Party shall repay to the ClosingIndemnifying Party, promptly after such determination, any amount that the Indemnifying Party would not have had to pay pursuant to this Article IX had such determination been made at the time of such payment.
(c) Indemnified Party shall take, and shall cause its Affiliates to take, all reasonable steps to mitigate Losses, including incurring costs only to the minimum extent necessary to remedy the breach.
(d) All payments made pursuant to this Article IX shall be treated for Tax purposes as an adjustment to the purchase price, unless otherwise required by applicable Law.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.2 and Section 6.02 8.3 shall be subject to the following limitations:
(a) The Indemnifying Party Sellers and Aero shall not be liable to the Indemnified Party Buyer Indemnitees for an individual claim or series of related claims for indemnification under Section 6.01(a8.2(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect for such claim or series of indemnification under Section 6.01(arelated claims exceeds TWENTY THOUSAND DOLLARS ($20,000) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price (the "DeductibleThreshold"), in which event the Indemnifying Party Sellers and Aero shall only be required require to pay or be liable for all such Losses from the first dollar; provided, however that the Threshold shall not apply to any inaccuracy in excess or misrepresentation of the Deductible.
(b) any representation or warranty in Section 4.1, Section 4.2, Section 4.8, Section 4.17, Section 4.19, or Section 4.20. The aggregate amount of all Losses for which an Indemnifying Party Sellers and Aero shall be liable pursuant to Section 6.01(a8.2(a) or Section 6.02(a), as the case may be, shall not exceed 150% FIVE HUNDRED THOUSAND ($500,000); provided, however that the aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 8.2(a) with respect to or by reason of any inaccuracy in or misrepresentation of any representation or warranty in Section 4.1, Section 4.2, Section 4.8, Section 4.17, Section 4.19, and Section 4.20 shall not exceed the Purchase Price.
(b) Buyer shall not be liable to the Sellers Indemnitees for an individual claim or series of related claims for indemnification under Section 8.3(a) until the aggregate amount of Losses for such claim or series of related claims exceeds the Threshold, in which event Buyer shall be require to pay or be liable for all such Losses from the first dollar; provided, however that the Threshold shall not apply to any inaccuracy in or misrepresentation of any representation or warranty in Section 5.1, and Section 5.2. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.3(a) shall not exceed the Purchase Price.
(c) 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 For purposes of this AgreementArticle VIII, or diminution of value or any damages based on any type of multiple.
(d) 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 representation or warranties of Seller warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Sources: Asset Purchase Agreement (Addvantage Technologies Group Inc)
Certain Limitations. The party Party making a claim under this ARTICLE VI Article VII is referred to as the "“Indemnified Party," ”, and the party Party against whom such claims are asserted under this ARTICLE VI Article VII is referred to as the "“Indemnifying Party." ”. The indemnification provided for in Section 6.01 7.02 and Section 6.02 7.03 shall be subject to the following limitations:
(a) The Indemnifying Party Neither the MCRC Parties nor the Partnership Parties shall not be liable to the Investors or any other Investor Indemnified Party for indemnification Losses entitled to be indemnified under Section 6.01(a) and 7.02 or Section 6.02(a), 7.03 until such time as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a) 7.02 or Section 6.02(b), as the case may be, 7.03 exceeds 100% of the Purchase Price $1,500,000 (the "Deductible"“Indemnification Threshold”), in which event the Indemnifying Party MCRC Parties or Partnership Parties, as applicable, shall only be required to pay or be liable for all Losses in excess of for which the DeductibleInvestors and other Investor Indemnified Parties are entitled to be indemnified hereunder (including any Losses below the Indemnification Threshold).
(b) The maximum aggregate amount of all Losses for which the Partnership Parties may be liable pursuant to Section 7.03, except with respect to breaches of Fundamental Representations, shall not exceed $300,000,000. The aggregate amount of all Losses for which an Indemnifying Party shall the Investors may be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, 7.04 shall not exceed 150% of the Purchase Price$300,000,000.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 7.05(a) Seller and Section 7.05(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representations or in the case of fraud found to have been committed by the Indemnifying Party by a court of competent jurisdiction in a judgment which has become final in that it is no longer subject to appeal or review.
(d) Notwithstanding anything to the contrary herein, the sole and exclusive remedy for indemnification pursuant to Section 7.03(a) hereof shall be made in accordance with Section 9(g) of the representations or warranties Second Amended and Restated LP Agreement, and the Investor Indemnified Parties shall not seek recourse for claims under Section 7.03(a) by any other means.
(e) Upon making any payment in respect of Seller contained claim as provided for in this Agreement if Buyer had knowledge Article VII, the Indemnifying Party will, to the extent of such inaccuracy payment, be subrogated to all rights of Indemnified Party against any third person (other than an insurance company) in respect of the Loss to which such payment related; provided, however, that (i) the Indemnifying Party shall then be in compliance with its obligations under this Agreement in respect of such Loss and (ii) until Indemnified Party fully recovers payment of its Loss, any and all claims of the Indemnifying Party against any such third person on account of such payment will be subordinated in right of payment to Indemnifying Party’s rights against such third person. Without limiting the generality or breach prior effect of any other provision hereof, each such Indemnifying Party and Indemnified Party will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights. To the extent that insurance proceeds or other third party proceeds are received after payment has been made by an Indemnifying Party, the Indemnified Party shall promptly pay to the ClosingIndemnifying Party an amount equal to such proceeds (up to, but not in excess of, the amount previously paid by the Indemnifying Party to the Indemnified Party). Any payment hereunder shall be treated as provided by the Code and applicable Treasury Regulations in order to comply with Section 7(d) of the Second Amended and Restated LP Agreement consistent with the economic arrangement of the Parties.
(f) The Indemnified Party shall seek to mitigate the amount of any Losses to the extent, if any, required by applicable law. Without limiting the foregoing, Losses shall be calculated net of actual payments received by an Indemnified Party pursuant to such Indemnified Party’s existing insurance policies (net of reasonable collection costs). Each Indemnified Party hereby agrees to use commercially reasonable efforts to collect any and all insurance proceeds to which it may be entitled in respect of any such Losses that may reduce or eliminate any applicable Losses to the same extent as it would if such Losses were not subject to indemnification hereunder; it being understood that no Indemnified Party shall be obligated to bring a lawsuit against any insurer to obtain a recovery under any insurance policies with respect to any particular Losses and the failure of an Indemnified Party to obtain recovery under any insurance policies despite using commercially reasonable efforts to do so shall not in any way affect or modify such Indemnified Party’s rights to which the Indemnified Party would have otherwise been entitled pursuant to this Article VII.
(g) The amount of Losses payable by an Indemnifying Party pursuant to this Article VII shall be without duplication, and in no event shall an Indemnified Party be indemnified under different provisions of this Agreement for the same Losses.
Appears in 1 contract
Sources: Preferred Equity Investment Agreement (Mack Cali Realty L P)
Certain Limitations. The party making a claim under this 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 6.01 and Section 6.02 7.02(a) shall be subject to the following limitations:
(a) The Indemnifying Party Sellers and ▇▇▇▇▇▇▇▇▇▇ shall not be liable to the Indemnified Party Buyer for indemnification under Section 6.01(a7.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a7.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price (the "Deductible")$50,000, in which event the Indemnifying Party Sellers and ▇▇▇▇▇▇▇▇▇▇ shall only be required to pay or be liable for such Person’s Indemnity Portion of all such Losses in excess of the Deductible.
(b) such sum. The aggregate amount of all Losses for which an Indemnifying Party all Sellers and ▇▇▇▇▇▇▇▇▇▇ shall collectively be liable pursuant to Section 7.02(a) shall not exceed 10% of the aggregate amounts received by such persons under this Agreement other than pursuant to Section 2.07 (Net Operating Capital).
(b) ▇▇▇▇▇▇▇ shall not be liable to Buyer for indemnification under Section 7.04 until the aggregate amount of all Losses in respect of indemnification under Section 7.04 exceeds $2,500, in which event ▇▇▇▇▇▇▇ shall be required to pay or be liable for all such Losses in excess of such sum. The aggregate amount of all Losses for which ▇▇▇▇▇▇▇ shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, 7.04 shall not exceed 15010% of the Purchase Priceaggregate amounts received by ▇▇▇▇▇▇▇ under this Agreement attributable to the Group Companies other than WEC, other than pursuant to Section 2.07 (Net Operating Capital).
(c) In no event Buyer’s sole recourse against Sellers for indemnification pursuant to Section 7.03 shall be to offset any Indemnifying Party sums due and payable pursuant to Section 7.03 against any unpaid additional consideration payable pursuant to Sections 2.08 and/or 2.09 and the provisions of the final two (2) sentences of Section 7.08 shall apply mutatis mutandis. The aggregate amount of all Losses for which Sellers shall collectively be liable pursuant to Section 7.03 shall not exceed, at any Indemnified Party for given time, the greater of (i) $3,000,000 and (ii) the amount of any punitive, incidental, consequential, special, or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating additional consideration that may become due and payable pursuant to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multipleSections 2.08 and/or 2.09.
(d) Seller Notwithstanding the foregoing, the foregoing limitations shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of (i) any inaccuracy in or breach of any Fundamental Representation; or (ii) intentional common law fraud. None of the representations Sellers, ▇▇▇▇▇▇▇▇▇▇ or warranties ▇▇▇▇▇▇▇ shall be liable to Buyer for indemnification under Section 7.02(a) or Section 7.04 with respect to any inaccuracy in or breach of Seller contained any Fundamental Representation in an amount in excess of (x) such Person’s Indemnity Portion of the aggregate amounts received by such persons under this Agreement if Buyer had knowledge other than pursuant to Section 2.07 (Net Operating Capital) attributable to WEC (in the case of such inaccuracy indemnification under Section 7.02) or breach prior (y) the aggregate amounts received by ▇▇▇▇▇▇▇ under this Agreement other than pursuant to Section 2.07 (Net Operating Capital) attributable to WIA/WF (in the Closingcase of indemnification under Section 7.04).
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller and EcoArk shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $50,000 (the "DeductibleBasket"), in which event the Indemnifying Party Seller and EcoArk shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party Seller and EcoArk shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% $500,000 (the "Cap").
(b) Seller and EcoArk shall not be liable to the Buyer Indemnitees for indemnification under Section 8.02 where the Losses are the result of (i) acts, actions or inaction of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and/or ▇▇▇ ▇▇▇▇ prior to the Purchase PriceClosing Date that constitute negligence or misconduct by either of them in the performance of their duties for Seller, or (ii) a breach of a representation or warranty of Seller contained in this Agreement, the other Transaction Documents or in any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement and ▇▇▇▇▇▇▇ ▇▇▇▇▇ and/or ▇▇▇ ▇▇▇▇ had actual knowledge of facts and circumstances giving rise to such breach but failed to disclose such facts and circumstances to Seller prior to the Closing Date.
(c) 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.
(d) Seller Buyer shall not be liable to the Seller Indemnitees for indemnification under this ARTICLE VI 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 any all such Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap. Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(c) shall not apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 4.02, Section 4.08, Section 4.14, Section 4.16, Section 4.17, Section 5.01, Section 5.02 and Section 5.04.
(d) For purposes of the representations this Article VIII, any inaccuracy in or warranties breach of Seller any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 and Section 6.02 shall be subject to the following limitations:8.2 and
(a) The Indemnifying Party Company Parent shall not be liable to the Indemnified Party Investor Indemnitees for indemnification under Section 6.01(a8.2(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.2(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $100,000 (the "“Deductible"”), in which event the Indemnifying Party Company Parent shall only be required to pay or be liable for all such Losses in excess of that exceed the Deductible.
(b) . The aggregate amount of all Losses for which an Indemnifying Party Company Parent shall be liable pursuant to Section 6.01(a8.2(a) or Section 6.02(a), as the case may be, 8.2(e) shall not exceed 150% $3,650,000 (the “Cap”).
(b) Investor shall not be liable to the Company Parent Indemnitees for indemnification under Section 8.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.3(a) exceeds the Purchase PriceDeductible, in which event Investor shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Investor shall be liable pursuant to Section 8.3(a) shall not exceed the Cap.
(c) In no event Notwithstanding the foregoing, the limitations set forth in Section 8.4(a) and Section 8.4(b) shall any Indemnifying Party be liable not apply to any Indemnified Party for any punitiveLosses based upon, incidental, consequential, specialarising out of, or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged resulting from (i) a party’s breach of this Agreementthe Fundamental Representations or Tax Representations, or diminution of value (ii) a party’s criminal activity (except with respect to Federal Cannabis Laws), intentional misconduct or any damages based on any type of multiplefraud.
(d) Seller The obligation to provide indemnity by an Indemnifying Party pursuant to Section 8.2(a) and Section 8.3(a) 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 Indemnified Party (including the Company) in respect of such claim.
(e) Notwithstanding any provision to the contrary herein or in the Certificate of Incorporation or by-laws of the Company, Company Parent shall not be liable under this ARTICLE VI entitled to indemnification from the Company 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 for which Company Parent shall be liable pursuant to this Agreement if Buyer had knowledge of such inaccuracy or breach prior to the ClosingARTICLE VIII.
Appears in 1 contract
Sources: Investment Agreement
Certain Limitations. The party making a claim under this 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 6.01 and Section 6.02 shall be subject to the following limitations:
(a) The Indemnifying Party indemnification obligations of Sellers under Section 6.1(b) shall not be liable apply to the Indemnified Party for indemnification under Section 6.01(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price (the "Deductible")first $1,000,000, in which event the Indemnifying Party shall only aggregate, of Losses referred to therein, except to the extent that such Losses may be required to pay incurred by virtue of or be liable for Losses in excess of the Deductibleresult from fraud or intentional misrepresentation.
(b) The indemnification obligations of Sellers under Sections 6.1(b) shall not exceed $10,000,000 in the aggregate, and the indemnification obligations of each Seller under this Article VI shall not exceed the aggregate amount Purchase Price received by such Seller for his, her or its Shares; provided however, that the foregoing limitations shall not apply to any Losses resulting from a breach of all Losses for which an Indemnifying Party shall be liable pursuant to the representations and warranties contained in Section 6.01(a2.4 (Capitalization of the Company; Subsidiaries and Investments) or Section 6.02(a), as the case 2.7(a) (Ownership and Condition of Assets) or that that may be, shall not exceed 150% be incurred by virtue of the Purchase Priceor result from fraud or intentional misrepresentation.
(c) In no event All representations and warranties of Sellers contained in this Agreement shall any Indemnifying Party be liable to any Indemnified Party survive the Closing for any punitive, incidental, consequential, special, or indirect damages, including loss a period of future revenue or income, loss eighteen (18) months (the "Claims Period"): except that (A) the representations and warranties in Section 2.4 (Capitalization of business reputation or opportunity relating the Company; Subsidiaries and Investments) and Section 2.7(a) (Ownership and Condition of Assets) shall survive the Closing indefinitely and (B) the representations and warranties in Section 2.18 (Environmental Matters) and Section 2.15 (Taxes) shall survive the Closing for a period of six (6) years from the date Sellers file the last tax return described in Section 5.2(a). Any claim made by Buyer with respect to the breach representations and warranties of Sellers contained in this Agreement must be initiated by Buyer during the Claims Period, except that any claim with respect to the representations and warranties in Section 2.18 (Environmental Matters) or alleged breach in Section 2.15 (Taxes) must be initiated within six (6) years following the filing by Sellers of the last tax return required to be filed pursuant to Section 5.2(a) of this AgreementAgreement and there shall be no time limit on when claims may be initiated with respect to the representations and warranties in Section 2.4 (Capitalization of the Company; Subsidiaries and Investments) and Section 2.7(a) (Ownership and Condition of Assets). All of the representations and warranties of Sellers contained in this Agreement shall in no respect be limited or diminished by any past or future inspection, investigation, examination or diminution possession on the part of value Buyer or its representatives or any damages based on notice pursuant to Section 4.16. All covenants and agreements made by Sellers contained in this Agreement (including, without limitation, the obligation of Sellers to convey the Shares to Buyer free and clear of any type Lien and the indemnification obligations of multipleSellers set forth in this Article VI) shall survive the Closing Date until fully performed or discharged.
(d) Seller shall not be liable under this ARTICLE VI for any Losses based upon or arising out The amount of any inaccuracy in or breach Loss subject to indemnification by Sellers hereunder shall be reduced by the amount of any of insurance proceeds received by Buyer or the representations or warranties of Seller contained Company in this Agreement if Buyer had knowledge respect of such inaccuracy Loss (net of retrospective premium payment or breach prior to the Closingprospective premium increases).
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Company Holders shall not be liable to the Indemnified Party Parent Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $92,500 (the "Deductible"“Basket”), in which event the Indemnifying Party Company Holders shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party the Company Holders shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% the Holdback Amount (the “Cap”).
(b) The Parent shall not be liable to the Company Holder 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 Purchase PriceBasket, in which event the Parent shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which the Parent shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.
(c) In no event Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(b) shall any Indemnifying Party be liable not apply to any Indemnified Party for any punitiveLosses based upon, incidentalarising out of, consequential, specialwith respect to, or indirect damages, including loss by reason of future revenue fraud 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.
(d) 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 Fundamental Representation.
(d) Notwithstanding anything to the representations or warranties of Seller contrary contained in this Agreement, except with respect to claims for equitable remedies, and claims based on fraud or willful breach or intentional misrepresentation, payment from the Holdback Amount shall be the sole and exclusive source of recovery by the Parent Indemnitees. Except for indemnifiable Losses arising directly from a Company Holder’s own fraud, the liability of each Company Holder for indemnifiable Losses pursuant to this Article VIII or Article VI shall not exceed the amount of the total Merger Consideration payable to such Company Holder. Except in the case of indemnifiable Losses arising directly as a result of fraud or willful breach or intentional misrepresentation committed by such Company Holder, any payment required to be made by a Company Holder under this Agreement if Buyer had knowledge shall be made from such Company’s Holder’s share of such the Holdback Amount.
(e) For purposes of this ARTICLE VIII, any inaccuracy in or breach prior of any representation or warranty and the amount of any Losses incurred or suffered in connection with such breach or inaccuracy shall be determined without regard to the Closingany materiality, Material Adverse Effect, or other similar qualification contained in or otherwise applicable to such representation or warranty.
Appears in 1 contract
Sources: Merger Agreement (VNUE, Inc.)
Certain Limitations. The party making a claim under this 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 6.01 and Section 6.02 shall be subject to the following limitations:
(a) The Indemnifying Party Notwithstanding anything in this Agreement to the contrary, in the absence of fraud, neither party shall indemnify or otherwise be liable to the other party with respect to any claim for any breach of a representation or warranty, or for the breach of any covenant contained in this Agreement, unless notice of the claim is given within the relevant survival period specified in Section 10.1.
(b) Notwithstanding anything in this Agreement to the contrary, in the absence of fraud, and except with respect to Aurora’s Loss attributable to matters described in Section 10.2(b), Sellers shall not be liable to Aurora in respect of any indemnification hereunder except to the Indemnified Party for indemnification under Section 6.01(aextent that (i) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification Aurora’s Loss (together with any Loss suffered by BlueStone under Section 6.01(athe BlueStone Purchase Agreement) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price Seventy Five Thousand Dollars ($75,000.00) (the "Deductible"“Threshold Amount”) (and then only to the extent such Loss exceeds the Threshold Amount), ; provided that all materiality qualifications in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess representations and warranties of the Deductible.
(b) The aggregate amount of all Losses for which an Indemnifying Party with respect to which the other party as Claimant shall claim Loss shall be liable pursuant disregarded solely for purposes of determining the occurrence of any untrue representation or breach of warranty and the amount of Loss to Section 6.01(a) or Section 6.02(a)be counted towards the Threshold Amount; and provided, as further, that the case may be, foregoing shall not exceed 150% of apply to any amounts owed in connection with the Purchase Price.
(c) In no event Notwithstanding anything in this Agreement to the contrary, in the absence of fraud, and except with respect to Aurora’s Loss attributable to matters described in Section 10.2(b), Sellers 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 indemnify Aurora hereunder only to the breach or alleged breach extent the aggregate amount of this Aurora’s Loss (together with any loss suffered by BlueStone under the BlueStone Purchase Agreement, or diminution ) in excess of value or any damages based on any type of multiplethe Threshold Amount is less (in the aggregate) than One Million Dollars ($1,000,000.00) (the “Indemnity Cap”).
(d) Seller Notwithstanding any other provision of this Agreement to the contrary, in no event shall not a party be liable under this ARTICLE VI entitled to indemnification for such party’s incidental, special, exemplary or punitive damages, regardless of the theory of recovery. Each party hereto agrees to use reasonable efforts to mitigate any losses, which form the basis for any Losses based upon claim for indemnification hereunder.
(e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall the Threshold Amount or arising out the Indemnity Cap apply to (i) breaches of Sellers’ representations and warranties contained in Sections 3.2 (Authorization and Binding Obligation), 3.9 (Title to Properties), 3.11 (Taxes), and 3.19 (Broker); or (ii) Sellers’ obligations with respect to any inaccuracy in Excluded Assets or breach Retained Liabilities.
(f) In the event that Aurora, as Indemnifying Party, shall be obligated to pay any Loss hereunder with respect to any indemnity claim by Sellers, as Claimant, and BlueStone shall be obligated to pay or shall have paid a Performance Penalty pursuant to the JSA (and as defined therein) with respect to the events giving rise to such Loss, then the amount of any such Loss payable by Aurora shall be reduced by and to the extent of the representations or warranties amount of Seller contained in this Agreement if Buyer had knowledge of the Performance Penalty paid to Sellers less any separate damages payable to Sellers with respect to such inaccuracy or breach prior events pursuant to the ClosingJSA.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Certain Limitations. The party making a claim under this 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 6.01 7.02 and Section 6.02 7.03 shall be subject to the following limitations:
(a) The Indemnifying Party Except with respect to claims for inaccuracies or breaches of Fundamental Representations (for which no such limitation shall apply), Sellers shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a7.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a7.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $59,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Sellers shall only be required to pay or be liable for all such Losses in excess from the first dollar, without consideration of the Deductible.
(b) The Basket. Except with respect to claims for inaccuracies or breaches of Fundamental Representations, the aggregate amount of all Losses for which an Indemnifying Party Sellers shall be liable pursuant to Section 6.01(a7.02(a) shall not exceed $1,350,000 (the “Cap”). Sellers’ maximum aggregate liability to the Buyer Indemnitees for indemnification under Section 7.02(a), for inaccuracies or breaches of Fundamental Representations, or Section 6.02(a7.02(b), as the case may befor any breach or non-fulfillment of any covenant, agreement or obligation, shall not exceed 150% the Purchase Price.
(b) Except with respect to claims for inaccuracies or breaches of Fundamental Representations (for which no such limitation shall apply), Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 7.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 7.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar, without consideration of the Basket. Except with respect to claims for inaccuracies or breaches of Fundamental Representations, the aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 7.03(a) shall not exceed the Cap. Buyer’s maximum aggregate liability to the Seller Indemnitees for indemnification under Section 7.03(a), for inaccuracies or breaches of Fundamental Representations, or Section 7.03(b), for any breach or non-fulfillment of any covenant, agreement or obligation, shall not exceed the Purchase Price.
(c) In no event Notwithstanding the foregoing, the limitations set forth in Section 7.04(a) and Section 7.04(b) shall not apply in any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special, or indirect damages, including loss case 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 multiplefraud.
(d) Seller shall not be liable under this ARTICLE VI for For purposes of Section 7.02(a), any Losses based upon or arising out of any resulting from an inaccuracy in or breach of any of the representations representation or warranties of Seller warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to any such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Kingsway Financial Services Inc)
Certain Limitations. The party making a claim under this 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 6.01 8.01 and Section 6.02 8.02 shall be subject to the following limitations:
(a) The Indemnifying Party Sellers shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.01(a) and Section 6.02(a)until (i) the individual breach or liability or series of breaches or liabilities related to such Seller warranty breaches or indemnified liabilities, as the case may beapplicable, until exceeds $10,000 and (ii) the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.01(a) or Section 6.02(bexceeds $150,000 (the “Basket”), as in which event Sellers shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 8.01(a) (other than in the case may beof any fraud, exceeds intentional misrepresentation, willful misconduct or criminal conduct by or on behalf of any Seller or the Company) shall not exceed 100% of the Purchase Price (the "Deductible"“Cap”). Any payment to Buyer for Losses may be made in cash or shares of Buyer Stock by Seller(s) valued at the then current market price therefor in the sole discretion of the tending Seller(s); however, should the value of the shares of Buyer Stock not be sufficient to satisfy such Losses, then the balance of such Losses shall be payable by Seller in cash.
(b) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 8.02(a) until (i) the individual breach or liability or series of breaches or liabilities related to such Buyer warranty breaches or indemnified liabilities, as applicable, exceeds $10,000 and (ii) the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) exceeds the Basket, in which event the Indemnifying Party Buyer shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party Buyer shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as (other than in the case may beof any fraud, intentional misrepresentation, willful misconduct or criminal conduct by or on behalf of the Buyer) shall not exceed 150% of the Purchase PriceCap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(d) Seller limitations set forth in Error! Reference source not found. and Error! Reference source not found. shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 3.03, Section 3.04, Section 3.05, Section 3.08, Section 3.11, Section 3.13, Section 4.01, Section 4.02, Section 4.13, Section 4.16, Section 4.20, Section 4.23, Section 5.01 and Section 5.06.
(d) For purposes of the representations this ARTICLE VIII, any inaccuracy in or warranties breach of Seller any representation or warranty shall 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) Notwithstanding anything in this Agreement if Buyer had knowledge to the contrary and for the avoidance of doubt, none of the limitations on indemnification set forth in this Error! Reference source not found. shall apply to any indemnification claims arising out of, relating to or resulting from fraud, intentional misrepresentation, willful misconduct or criminal conduct.
(f) An Indemnified Party shall not be entitled to indemnification for any punitive damages, except to the extent any such damages are payable to a third party in connection with a Third Party Claim or except in connection with any fraud, intentional misrepresentation, willful misconduct or criminal conduct.
(g) The amount of any Losses for indemnification hereunder shall be calculated net of any amounts actually recovered by the Indemnified Party for such Losses under any applicable third party insurance policies (excluding self-insurance arrangements) or from any third party alleged to be responsible therefor (the “Collateral Sources”), less the costs and expenses incurred by the Indemnified Party to collect any such insurance proceeds or other amounts (including reasonable attorneys’ fees and expenses and, in the case of insurance proceeds, any deductibles or self‑insured retentions, any increases in premium or any retroactive premium adjustments directly related to obtaining such insurance proceeds) (collectively, the “Recovery Costs”), it being agreed and understood that no Indemnified Party shall have any obligation to seek recovery under any insurance policy prior to making any indemnification claim hereunder. If the Indemnified Party actually receives any amounts from any Collateral Source for any Damages after receiving an indemnification payment from the Indemnifying Party in respect of such inaccuracy or breach prior Damages, then the Indemnified Party shall promptly reimburse the Indemnifying Party for any such indemnification payment up to the Closingamount actually received by the Indemnified Party from such Collateral Source, less the Recovery Costs.
Appears in 1 contract
Sources: Stock Purchase Agreement (ParcelPal Logistics Inc.)
Certain Limitations. The party making a claim under this 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 6.01 9.02 and Section 6.02 9.03 (and, with respect to Section 9.04(c), Section 6.03) shall be subject to the following limitationslimitations and additional provisions:
(a) The Indemnifying Party Except as set forth in Section 9.04(c), Stockholders shall not be liable to the Indemnified Party Parent Indemnitees for indemnification under Section 6.01(a9.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a9.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price an amount equal to $637,624 (the "“Deductible"”), in which event the Indemnifying Party Stockholders shall only be required to pay or be liable for all such Losses in excess of the Deductible.
(b) The . Except as set forth in Section 9.04(c), the aggregate amount of all Losses for which an Indemnifying Party Stockholders shall be liable pursuant to Section 6.01(a9.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% an amount equal to $12,752,480 (the “Cap”) (except for (i) any Losses related to any inaccuracy in or breach of any Fundamental Representations, which are subject to the limitation set forth in Section 9.04(c), and (ii) any Losses on the part of the Purchase PriceParent Indemnitee claiming indemnification hereunder resulting from ▇▇▇▇▇, intentional misrepresentations and intentional misconduct, which shall not be subject to the Cap).
(b) Except as set forth in Section 9.04(c), Parent shall not be liable to the Stockholder Indemnitees for indemnification under Section 9.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.03(a) exceeds the Deductible, in which event Parent shall be required to pay or be liable for all such Losses in excess of the Deductible. Except as set forth in Section 9.04(c), the aggregate amount of all Losses for which Parent shall be liable pursuant to Section 9.03(a) shall not exceed the Cap (except for any Losses on the part of a Stockholder Indemnitee claiming indemnification hereunder resulting from Fraud, intentional misrepresentations and intentional misconduct, which shall not be subject to the Cap).
(c) 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 Notwithstanding anything to the breach or alleged breach of this Agreementcontrary herein, or diminution of value or any damages based on any type of multiple.
(di) Seller the limitations set forth in Section 9.04(a) and Section 9.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation, (ii) the aggregate amount of all Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation, for which Stockholders shall be liable pursuant to Section 9.02(a), or for which Parent shall be liable pursuant to Section 9.03(a), shall not exceed one hundred percent (100%) of the representations Actual Closing Merger Consideration, (iii) in no event shall the Stockholders’ liability pursuant to Article VI and this Article IX exceed the value (as if such amounts were all received as of Closing) of the Actual Closing Merger Consideration that the Stockholders actually receive, and (iv) in no event shall any Stockholder’s liability pursuant to Article VI or warranties this Article IX exceed the value (as if such amounts were all received as of Seller Closing) of its Pro Rata Share of the Actual Closing Merger Consideration that such Stockholder actually received.
(d) For purposes of this Section 9.04, in determining the existence of an inaccuracy in or a breach of any representation or warranty and for purposes of calculating the amount of any Losses with respect to any inaccuracy in or breach of any representation or warranty, the amount of such Losses shall 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 indemnification payment required under this Article IX shall be adjusted for the amount of any Losses that are actually recovered from any insurance proceeds (net of cost of enforcement and collection of insurance proceeds and deductibles and increases in insurance premiums) and any indemnity, contribution or similar payment received by the Indemnified Party in respect of any such Losses. Each party shall use commercially reasonable efforts to assert a claim where coverage for such claim may be available pursuant to applicable existing insurance policies; provided, that neither Parent Indemnitees nor Stockholder Indemnitees will have any obligation to have any claims under such insurance policies finally resolved prior to making a claim for indemnification hereunder.
(f) No party shall be entitled to (i) double recovery for any indemnifiable Losses even though such Losses may have resulted from the breach of more than one of the representations, warranties, agreements and covenants in this Agreement if Buyer had knowledge of such inaccuracy or breach prior (ii) recover any Losses with respect to Excluded Taxes or, without duplication, any amounts to the Closingextent such amounts were treated as liabilities or were otherwise specifically taken into account in computing the Total Merger Consideration.
(g) Nothing in this Agreement is intended to limit any obligation under applicable Law with respect to mitigation of damages.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Company Shareholder shall not be liable to the Indemnified Party Parent Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a(other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any of the Company Surviving Representations (the “Parent’s Basket Exclusions”), as the case may be), until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) (other than those based upon, arising out of, with respect to or Section 6.02(b), as the case may be, exceeds 100% by reason of the Purchase Price (the "Deductible")Parent’s Basket Exclusions) exceeds $100,000, in which event the Indemnifying Party Company Shareholder shall only be required to pay or be liable for all such Losses in excess of the Deductiblesuch amount.
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase Price.
(c) 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.
(d) Seller Parent shall not be liable to the Company Shareholder Indemnitees for indemnification under this ARTICLE VI Section 8.03(a) (other than with respect to a claim for any Losses indemnification based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any of the representations Parent’s Surviving Representations (the “Company Shareholder’s Basket Exclusions”)) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) (other than those based upon, arising out of, with respect to or warranties by reason of Seller contained the Company Shareholder’s Basket Exclusions) exceeds $100,000, in this Agreement if Buyer had knowledge which event Parent shall be required to pay or be liable for all such Losses in excess of such inaccuracy or breach prior amount.
(c) The Parties acknowledge and agree that the maximum liability of the Company Shareholder, on the one hand, and the Parent, on the other hand, for indemnification pursuant to this Article VIII shall be the sum of $1,000,000 (the “Cap”), and neither the Parent, on the one hand, nor the Company Shareholder, on the other hand, shall have any liability to the Closingother in excess of the Cap.
(d) All liabilities and obligations of the Company Shareholder that may arise under Section 8.02(a) (“Parent Indemnification Liabilities”), if any, will be satisfied only out of Merger Consideration received by the Company Shareholder; and the Company Shareholder will be liable to return, transfer, and assign to Parent, irrevocably, that number of shares of Parent Common Stock included in the Merger Consideration, valued at the Assumed Parent Common Stock Value, as is equal in value to the Parent Indemnification Liabilities then being paid. Such return, transfer, and assignment will be deemed in full payment and satisfaction of the Parent Indemnification Liabilities with respect to which payment is being made.
(e) Subject to the notice, dispute and other procedures herein, Parties hereby agree that any amounts due to Parent as required to satisfy the Company Shareholder’s indemnification obligations with respect to any claim for Losses required to be paid by the Company Shareholder pursuant to this Article VIII shall be paid via the delivery by the Company Shareholder to the Parent of a number of shares of Parent Common Stock equal to (1) the amount owed divided by (2) the Assumed Buyer Common Stock Value, and the Company Shareholder agrees to return to Parent the Company Shareholder’s pro rata portion of any such required return of shares of Parent Common Stock.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 9.2(b) and Section 6.02 9.2(c) shall be subject to the following limitations:
(ai) The Indemnifying Party Company shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a9.2(b) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a9.2(b) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $250,000 (the "Deductible"), in which event the Indemnifying Party Company shall only be required to pay or be liable for Losses in excess of only such amounts that exceed the Deductible.
(b) . The aggregate amount of all Losses for which an Indemnifying Party Company shall be liable pursuant to Section 6.01(a9.2(b) or Section 6.02(a), as the case may be, shall not exceed 150% of $1,500,000 (the Purchase Price"Cap").
(cii) 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.
(d) Seller Buyer shall not be liable to the Company Indemnitees for indemnification under this ARTICLE VI Section 9.2(c) until the aggregate amount of all Losses in respect of indemnification under Section 9.2(c) exceeds the Deductible, in which event Buyer shall be required to pay or be liable for any only such amounts that exceed the Deductible. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 9.2(c) shall not exceed the Cap.
(iii) Notwithstanding the foregoing, the limitations set forth in Section 9.2(d)(i) and Section 9.2(d)(ii) shall not apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation; provided that the aggregate amount of Losses to which the representations Company shall be liable in respect of Fundamental Representations shall not exceed the Purchase Price.
(iv) The Company shall have no indemnification obligations hereunder for any Losses arising out of a breach of or warranties inaccuracy of Seller contained any representation, warranty, covenant or agreement set forth in this Agreement if Buyer had knowledge (and the amount of any Losses incurred in respect of such breach or inaccuracy shall not be included in the calculation of any limitations on indemnification set forth herein) if the matter giving rise to such breach or breach prior to inaccuracy was included in the Closingdetermination of the release of the Escrow Amount under the Escrow Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (First Bancshares Inc /MS/)
Certain Limitations. The party making a claim under this 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 6.01 9.02 and Section 6.02 9.04 shall be subject to the following limitations:
(a) The Indemnifying Party Sellers shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a9.02(a) and Section 6.02(a), as the case may be, (b) until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a9.02(a) or Section 6.02(b), as the case may be, and (b) exceeds 100% of the Purchase Price $300,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Sellers shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party Sellers shall be liable pursuant to Section 6.01(a9.02(a) or Section 6.02(a), as the case may be, and (b) shall not exceed 150% $1,000,000 (the “Cap”).
(b) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 9.03(a) and (b) until the aggregate amount of all Losses in respect of indemnification under Section 9.03(a) and (b) exceeds the Purchase PriceBasket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 9.03(a) and (b) shall not exceed the Cap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 9.05(a) Seller and Section 9.05(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 4.03, Section 4.18, Section 4.19, Section 4.27, and Section 5.01.
(d) For purposes of the representations this Article IX, any inaccuracy in or warranties breach of Seller any representation or warranty made by Sellers shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 and Section 6.02 shall be subject Notwithstanding anything herein to the following limitationscontrary:
(ai) The Indemnifying Party shall not be liable to the Indemnified Party for indemnification maximum aggregate liability of Seller under Section 6.01(a8.2(a) and (other than as set forth in Section 6.02(a8.2(e)(iii), as the case may be, until the aggregate ) shall be limited to an amount of all Losses in respect of indemnification under Section 6.01(a) or Section 6.02(b), as the case may be, exceeds equal to 100% of the Purchase Price (the "Deductible"“Overall Cap”);
(ii) the maximum aggregate liability of Buyer and CIFR under Section 8.2(b) (other than as set forth in Section 8.2(e)(iii) or a breach of the payment obligations set forth in Section 2.2) shall be limited to the Overall Cap;
(iii) an Indemnitor’s obligation to indemnify the Indemnitee for any breach of any representation, warranty, or covenant made or given by Indemnitor in which event the Indemnifying Party this Agreement or any Transaction Document shall only be required apply to pay or be liable the extent the aggregate damages for Losses in excess of the Deductible.
(b) The aggregate all Claims exceeds an amount of all Losses for which an Indemnifying Party shall be liable pursuant equal to Section 6.01(a) or Section 6.02(a), as the case may be, shall not exceed 1500.5% of the Purchase Price.Price (the “Deductible”), and then such Party shall be entitled to indemnification or defense for all damages from the first dollar without any regard to the Deductible up to an amount not to exceed the Overall Cap (subject to other applicable limitations contained herein); provided, that the Deductible and Overall Cap shall not apply to claims for indemnification (A) related to a breach of any Seller Fundamental Representation or Buyer Fundamental Representation, (B) related to a breach of any representation or warranty set forth in Section 3.9 (Tax Matters) and Section 3.10 (Environmental Matters), (C) related to a breach of any covenant to pay Taxes in Section 8.2(a)(iii) or Section 8.2(b)(iii), or (D) to the extent such claim arises from fraud or willful misconduct;
(civ) an Indemnitor’s indemnification liability pursuant to Section 8.2(a) or Section 8.2(b) shall be reduced by the insurance proceeds received by an Indemnitee with respect to any such Loss (less any costs and expenses incurred in connection with recovery of any such insurance proceeds and any related increases in insurance premiums). Each Indemnitee shall use commercially reasonable efforts to collect the proceeds of any insurance that would have the effect of reducing the Indemnitor’s indemnification liability;
(v) payments by an Indemnitor pursuant to Section 8.2(a) or Section 8.2(b) in respect of any Loss shall be (i) reduced by an amount equal to any Tax benefit actually realized as a result of such Loss by the Indemnitee and (ii) increased by an amount equal to any tax detriment associated with the receipt of such indemnity payment;
(vi) each Indemnitee shall, and shall cause its Affiliates to, use their respective commercially reasonable efforts to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto;
(vii) in any case where an Indemnitee or any of its Affiliates recovers from a third party any payments in respect of a matter with respect to which an Indemnitor has made indemnification payments to such Indemnitee with respect to such matter pursuant to this Article 8 and such Indemnitee has received an aggregate amount from such indemnification payments and third party recoveries that collectively exceeds all Losses suffered or incurred by such Indemnitee in respect of such matter, such Indemnitee shall promptly pay over to the Indemnitor the amount so recovered, received or accrued (net of any reasonable costs to such Indemnitee to obtain such recovery, including any related increases in insurance premiums and any Taxes imposed on any such payments), but not in excess of (A) the aggregate amount by which the sum of such recovered amounts and such indemnification payments exceed the Indemnitee’s Losses in respect of such matter, or (B) the sum of any amount previously so paid by the Indemnitor to or on behalf of the Indemnitee in respect of such matter;
(viii) the representations, warranties, covenants and obligations of Seller, and the rights and remedies that may be exercised by the Buyer Related Parties based on such representations, warranties, covenants and obligations, will not be limited or affected by any investigation conducted by Buyer Related Party with respect to, or any knowledge acquired (or capable of being acquired) by any Buyer Related Party at any time, whether before or after the execution and delivery of this Agreement, with respect to the accuracy or inaccuracy of or compliance with or performance of any such representation, warranty, covenant or obligation, and no Buyer Related Party shall be required to show that it relied on any such representation, warranty, covenant, or obligation of Seller in order to be entitled to indemnification pursuant to this Section 8.2; and
(ix) In no event shall any Indemnifying Party Indemnitor be liable to any Indemnified Party Indemnitee 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.
; provided that, notwithstanding any other provision in this Agreement to the contrary, none of the following shall be deemed to be punitive, incidental, consequential, special, or indirect damages subject to waiver pursuant to this Section 8.2(e)(ix): (dA) Seller shall not be liable under this ARTICLE VI for any Losses based upon or arising out damages that relate to Taxes as a result of any inaccuracy in or breach of any of the representations representation or warranties of warranty made by Seller contained in this Agreement if Buyer had knowledge of such inaccuracy Section 3.9, and (B) damages related to third party claims, fraud or breach prior willful misconduct for which any Party is obligated to the Closingindemnify another Party hereunder.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Parent and Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $250,000 (the "DeductibleBasket"), in which event the Indemnifying Party Parent and Seller shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party Seller shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% $1,000,000 (the "Cap").
(b) Buyer shall not be liable to the Seller 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 Purchase PriceBasket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 8.04(a) Seller and Section 8.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in the Fundamental Representations. The aggregate amount of Losses for which each Party shall be liable for Fundamental Representations shall be the representations or warranties Purchase Price.
(d) For purposes of Seller contained in determining the amount of Losses that are subject matter of a claim for indemnification under this Agreement if Buyer had knowledge Article VIII, but not for purposes of such determining whether (i) there is an inaccuracy or breach prior of a representation or warranty by a party and (ii) the other party may bring a claim for indemnification under this Article VIII, any inaccuracy in or breach of any representation or warranty shall be read without regard to the Closingany materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
Appears in 1 contract
Certain Limitations. The party making a claim liability of Buyer and Seller under this 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 6.01 4.2 and Section 6.02 4.3 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a4.2(a) and or its indemnity in the Assignment of Intangibles (as defined in Section 6.02(a2.2) until the aggregate amount of all Losses in respect of a breach of any representation or warranty under Section 4.2(a) exceeds $5,000,000.00 (the “Basket Amount”), as in which event Seller shall be required to pay or be liable for such Losses above the case may beBasket Amount. Notwithstanding any provision in this Agreement to the contrary, the aggregate amount of all Losses for which Seller shall be liable pursuant to Section 4.2 and its indemnity in the Assignment of Intangibles shall not exceed ten percent (10%) of the Purchase Price (the “Cap”) in the aggregate for all such Losses.
(b) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 4.3(a), until the aggregate amount of all Losses in respect of indemnification a breach of any representation or warranty under Section 6.01(a4.3(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price (the "Deductible")$5,000,000.00, in which event the Indemnifying Party Buyer shall only be required to pay or be liable for all such Losses in excess of above the DeductibleBasket Amount, but shall not exceed the Cap.
(bc) The aggregate amount Notwithstanding the foregoing, the limitations set forth in Section 4.4(a) and Section 4.4(b) shall not apply to Losses based on actual fraud or any costs of all Losses for which an Indemnifying Party shall be liable pursuant to Section 6.01(a) enforcing this Agreement or Section 6.02(a)the Land Contract or amounts owed under the Land Contract, and/or Seller’s liability or Buyer’s liability, as the case may be, in respect thereof shall not exceed 150% of the Purchase Price.
(cd) In no event shall For purposes of determining the existence of any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special, inaccuracy in or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of any representation or warranty set forth in this Agreement, or diminution in calculating the amount of value any Losses incurred in connection with any inaccuracy in or breach of any damages based on representation or warranty in this Agreement, any type of multipleand all references in this Agreement to “material” or “material adverse effect” or “Material Adverse Effect” (or other correlative or similar terms or qualifiers contained herein) shall be ignored and disregarded and treated as if they are not included in this Agreement.
(de) With respect to Losses related to environmental response activities for which indemnification is provided to Seller by Buyer under this Agreement, Seller shall use commercially reasonable efforts to pursue any available remedies to Seller related to environmental response activities under the 2017 Purchase Agreement but only if both (i) Buyer pays the cost of pursuing such rights and remedies and (ii) Seller in its reasonable judgement determines that it has a reasonable good faith basis to assert a claim or right. If Seller recovers under 2017 Purchase Agreement with respect to such indemnification obligations and with respect to environmental response activities, then Seller shall, at Buyer’s sole discretion, use such recovered amounts to satisfy its obligations under this Article IV, or pay Buyer any amounts Seller has recovered up to the amount due to Buyer under this Article IV. Notwithstanding any provision in this Agreement to the contrary, Seller makes no representation or warranty regarding the existence or likelihood of success of any claim against AM General pursuant to the 2017 Purchase Agreement and discloses to Buyer that any assignment of rights under the 2017 Purchase Agreement by Seller may require the written consent of AM General pursuant to the terms of the 2017 Purchase Agreement.
(f) No party shall have a right to make a claim for any Loss for contingent or inchoate claims and may claim only for a Loss that has, in fact, been paid or incurred.
(g) Seller shall not be liable under this ARTICLE VI Article IV or otherwise under this Agreement or the Land Contract for any Losses based upon on or arising out of any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement if any director, officer or employee of Buyer had knowledge of such inaccuracy or breach prior to the ClosingPossession Date.
(h) No party shall have any liability under any provision of this Agreement for any punitive, incidental, consequential, special or indirect damages, including business interruption, diminution of value, loss of future revenue, profits or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement and, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise.
(i) For the purposes of this Agreement, “Losses” means losses, damages, liabilities, deficiencies, interest, awards, penalties, fines, costs or expenses, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers. “Affiliate” means, with respect to any party, any other person who, directly or indirectly, controls, is controlled by, or is under common control with such party, including, without limitation, any general partner, managing member, officer, director or trustee of such party.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Electric Last Mile Solutions, Inc.)
Certain Limitations. The party making a claim (i) If the Closing occurs, Sellers shall have no liability with respect to claims under this ARTICLE VI is referred Section 11.2(a) and Section 11.2(e) until the aggregate of all Losses suffered by all Buyer Indemnified Persons with respect to as the "Indemnified Party," and the party against whom such claims are asserted exceeds Seven Hundred Fifty Thousand Dollars and 00/100 ($750,000.00) (it being agreed that in the event such threshold is reached and exceeded, the Buyer Indemnified Persons shall only be entitled to recover Losses in excess of such amount). The limitation of the preceding sentence shall not apply to any Breach(es) of the Fundamental Representations.
(ii) If the Closing occurs, the aggregate liability of Sellers with respect to Losses for claims under this ARTICLE VI is referred to as the "Indemnifying Party." The indemnification provided for in Section 6.01 11.2(a) and Section 6.02 11.2(e) shall be not exceed Ten Million Dollars and 00/100 ($10,000,000.00); provided, that the aggregate liability with respect to Losses resulting from a Breach of the Fundamental Representations and all other Losses not subject to the following limitations:Ten Million Dollar and 00/100 ($10,000,000.00) limitation shall not exceed the Closing Payment.
(aiii) The Indemnifying Party For purposes of this Section 11.6, any single Loss that is less than Seven Thousand Five Hundred Dollars and 00/100 ($7,500.00) shall be disregarded (and Buyer Indemnified Parties shall not be liable entitled to the Indemnified Party for indemnification under Section 6.01(a11.2 with respect thereto); provided, however, that any series of Losses arising out of the same occurrence or recurring Losses of a similar nature shall be aggregated and treated as a single Loss.
(iv) Notwithstanding anything to the contrary herein, the limitations of this Section 11.6 will not apply to Breaches or other Losses based on or otherwise involving the fraud or willful misconduct of one or more Sellers.
(b) All indemnification or reimbursement payments required pursuant to this Agreement with respect to any Loss shall be net of amounts actually received by an Indemnified Person with respect to such Loss (i) as proceeds of insurance policies, but not to exceed the limits contained in the Company and Section 6.02(aits Subsidiaries’ insurance policies as of the Closing Date (the “Acquired Companies’ Insurance Policies”), and (ii) from third parties having a contractual relationship with the Company or its Subsidiaries prior to Closing, including through indemnification, counterclaim, reimbursement arrangement, contract or otherwise (collectively, “Alternative Arrangements”). With respect to any Loss that is the subject of a claim for indemnity under this Article XI, Buyer shall use commercially reasonable efforts to collect proceeds relating to insurance policies of the Company or its Subsidiaries in effect prior to Closing; provided however, nothing herein shall require Buyer or an applicable Acquired Company to commence and prosecute a lawsuit or other Proceeding against such insurer(s) as a condition of Sellers’ obligation to indemnify as provided herein, but it shall be sufficient that Buyer or the applicable Acquired Company make demand upon such insurer(s) for such insurance or liability or Loss, as the case may be, until the aggregate amount and subject to Sellers’ rights of all Losses in respect of indemnification under Section 6.01(a) reimbursement as provided below. If any amounts are received by Buyer or Section 6.02(b), as the case may be, exceeds 100% any of the Purchase Price Acquired Companies with respect to such Losses after Buyer or the applicable Acquired Company has received such amounts from an indemnifying party, Buyer or the applicable Acquired Company shall promptly, but in any event no later than ten (10) Business Days after the "Deductible"actual receipt of such amounts, pay such amount to the indemnifying party up to the amount received by Buyer or applicable Acquired Company from the indemnifying party, subject to the limits set forth in Section 11.6(b)(i). To the extent that any amount has been delivered or credited to an indemnifying party under this Section 11.6(b) with respect to a Loss, such Loss shall be deemed adjusted downward by such amount and such Loss shall not be counted in which event the Indemnifying Party shall only be required determination of whether any threshold or cap hereunder has been met to pay or be liable for Losses in excess the extent of the Deductible.
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase Priceincluded in such adjustment.
(c) In no event shall To the extent that any Indemnifying Party Losses which would otherwise be liable subject to any indemnification pursuant to this Article XI were reflected in the calculation of the Purchase Price or for which a working capital adjustment was made pursuant to Section 2.7, (i) Buyer 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.
(d) Seller Persons shall not be liable under this ARTICLE VI able to recover for such Losses, and (ii) such Losses shall not be counted in the determination of whether any Losses based upon threshold or arising out of any inaccuracy cap hereunder has been met, in or breach of any each case only to the extent of the representations amount included in such calculation or warranties of Seller contained in this Agreement if Buyer had knowledge of such inaccuracy or breach prior to the Closingadjustment.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Lmi Aerospace Inc)
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) exceeds $120,000 (the “Basket”), in which event Seller shall be required to pay or be liable for all such Losses from the first dollar. With respect to any claim as to which the Indemnified Party may be entitled to indemnification under Section 8.02(a) or Section 6.02(b8.03(a), as the case may be, exceeds 100% the Indemnifying Party shall not be liable for any individual or series of related Losses which do not exceed $5,000 (which Losses shall not be counted toward the Purchase Price Basket). The aggregate amount of all Losses for which Seller shall be liable pursuant to Section 8.02(a) shall not exceed $1,500,000 (the "Deductible"“Cap”).
(b) Buyer shall not be liable to the Seller 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 the Indemnifying Party Buyer shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party Buyer shall be liable pursuant to Section 6.01(a8.03(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase PriceCap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 8.04(a) Seller and Section 8.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 4.02, Section 4.08, Section 4.22, Section 5.01, Section 5.02 and Section 5.04. The aggregate amount of all Losses for which Seller shall be liable pursuant to Section 8.02(b) and (c) and for which Buyer shall be liable pursuant to Section 8.03(b) and (c) shall not exceed the representations Purchase Price actually received; provided, however, that the foregoing limitations shall not apply to any claims by Seller related to any Earnout Payments.
(d) Payments by an Indemnifying Party pursuant to Section 8.02 or warranties Section 8.03 in respect of Seller 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 entitled to be received by the Indemnified Party 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 prior to seeking indemnification under this Agreement.
(e) Payments by an Indemnifying Party pursuant to Section 8.02 or Section 8.03 in respect of any Loss shall be reduced by an amount equal to any Tax benefit realized as a result of such Loss by the Indemnified Party.
(f) 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 minimum extent necessary to remedy the breach that gives rise to such Loss.
(g) For purposes of this Article VIII, any Losses resulting from any inaccuracy in or breach of any representation or warranty contained in this Agreement shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty (other than those set forth in (a) the definition of Material Contract and Permitted Exceptions, (b) any provisions of any representation or warranty made by the Company in this Agreement that require the Company to list items in the Schedules, and (c) the representations set forth in Section 4.01, Section 4.06(a), Section 4.08, Section 5.01, and Section 5.11).
(h) In no event shall any Buyer Indemnitees or Seller Indemnitees be entitled to seek or receive indemnification for the same Loss more than once under this Article VIII even if Buyer had knowledge a claim for indemnification in respect of such inaccuracy Loss has been made as a result of a breach of more than one (1) representation, warranty, covenant or breach prior to the Closingagreement contained in this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cryo Cell International Inc)
Certain Limitations. The party making a claim liability of Sellers or Buyer, as applicable, for claims under this 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 6.01 and Section 6.02 Agreement shall be subject to limited by the following limitationsfollowing:
(a) The Indemnifying Party amount of Losses otherwise recoverable under this Article VI shall not be liable reduced to the Indemnified Party for indemnification under Section 6.01(a) and Section 6.02(a)extent to which any federal, state, local or foreign tax liabilities of the Seller or Buyer, as the case may beapplicable, until the aggregate amount or any of all Losses their respective affiliates is decreased by reason of any Loss in respect of indemnification under Section 6.01(a) which Seller or Section 6.02(b)Buyer, as the case may beapplicable, exceeds 100% of the Purchase Price (the "Deductible"), in which event the Indemnifying Party shall only be required entitled to pay or be liable for Losses in excess of the Deductibleindemnity under this Agreement.
(b) The aggregate If any matters giving rise to a claim of indemnification pursuant to Article VI may be covered by any insurance policy, then no amount of all Losses for which an Indemnifying Party shall be liable recovered pursuant to Section 6.01(a) Article VI unless and until Buyer or Section 6.02(a), as the case may be, Seller shall not exceed 150% of the Purchase Pricehave made a claim against its insurers under such policy and such insurance claim shall have been finally decided.
(c) In no event No claim or claims with respect to Losses shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special, asserted by Seller or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating Buyer pursuant to the breach provisions of this Article VI, unless the amount of such Losses exceeds at least $35,000 in the aggregate (such $35,000 amount, the "Indemnity Threshold") and then to the full extent of such Losses, provided, however, that the limitations set forth in this Section 6.4(c) shall not apply with respect to the inaccuracy or alleged breach of this Agreementany representation or warranty set forth in Section 3.1(i) or (s) or the last sentence of Section 3.1(h), provided further that any claim for Losses under such sections shall not be counted as contributing to either the Indemnity Threshold or diminution of value or any damages based on any type of multiplethe Indemnity Deductible.
(d) The aggregate amount of Losses recoverable pursuant to the provisions of Article VI by Buyer and 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 had knowledge of such inaccuracy or breach prior limited to the Closing$700,000.
Appears in 1 contract
Sources: Stock Purchase Agreement (Argan Inc)
Certain Limitations. The party making a claim (a) In addition to the other limitations set forth in this Article 10, the Effective Time Holders’ obligations under this ARTICLE VI is referred to as the "Indemnified Party," and the party against whom such claims Section 10.02(a) are asserted under this ARTICLE VI is referred to as the "Indemnifying Party." The indemnification provided for in Section 6.01 and Section 6.02 shall be subject to the following limitations:
(ai) The Indemnifying Party shall the Effective Time Holders will not be liable to the Indemnified Party for indemnification have any obligation under Section 6.01(a10.02(a) unless and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a) or Section 6.02(b), as for which the case may be, Effective Time Holders are obligated thereunder exceeds 100% of the Purchase Price $2,000,000 (the "“Deductible"), in which event ”) and then only for the Indemnifying Party shall only be required to pay or be liable for amount of such Losses in excess of the Deductible, subject to the other terms of this Article 10; and
(ii) in no event shall the Effective Time Holders’ aggregate liability for Losses pursuant to Section 10.02(a) or otherwise exceed, in the aggregate, the Escrow Amount (the “Cap”), subject to the other terms of this Article 10.
(b) The aggregate Notwithstanding the foregoing, (i) Sections 10.03(a)(i) and (ii) will not limit any Effective Time Holder’s obligations under Section 10.02(a) with respect to (A) any Special Representation, (B) Losses under Section 10.02(a)(iii), (C) Losses caused by the Company’s fraud (which, for purposes of clarity, shall be intentional and knowing) or (D) any breach of Section 5.08 (collectively, the “Special Claims”), (ii) the amount of all Losses for which an Indemnifying Party shall hereunder with respect to any Special Claim will not be liable pursuant to used in determining if the Deductible has been reached and will not be counted toward the Cap, and (iii) Section 6.01(a10.03(a)(i) or will not limit any Effective Time Holder’s obligations under Section 6.02(a10.02(a)(iv), as the case may be, shall not exceed 150% of the Purchase Price.
(c) The Escrow Amount will be the sole source of funds from which to satisfy the Effective Time Holders’ indemnification obligations under Section 10.02(a) other than with respect to the Special Claims. Other than with respect to the Special Claims, in no event shall any individual Effective Time Holder’s liability for Losses pursuant to Section 10.02(a) or otherwise exceed, as to each and any claim for indemnification under Section 10.02(a), such Effective Time Holder’s Pro Rata Share of the Losses relating to such claim, subject to the other terms of this Article 10. In no event shall any Indemnifying Party be liable individual Effective Time Holder’s liability for Losses pursuant to this Article 10 (including in the event of fraud and with respect to any Indemnified Party for any punitiveSpecial Claims) or otherwise exceed, incidentalin the aggregate, consequential, special, or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating an amount equal to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple.
(d) 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 net cash proceeds actually received by such Effective Time Holder pursuant to this Agreement if Buyer had knowledge and the Paying Agent Agreement in respect of such inaccuracy or breach prior to the ClosingEffective Time Holder’s shares of Company Capital Stock and/or Qualifying Company Options.
Appears in 1 contract
Sources: Merger Agreement (Bankrate, Inc.)
Certain Limitations. The party making a claim under this 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 6.01 and Section 6.02 8.02 shall be subject to the following limitations:
(a) The Indemnifying Party Effective Time Holders shall not be liable to the Indemnified Party Parent Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a) or Section 6.02(b), as the case may be, thereunder exceeds 100% of the Purchase Price $350,000 (the "“Deductible"”), in which event the Indemnifying Party Effective Time Holders shall only be required to pay or be liable for all such Losses in excess of the Deductible, but not in an amount to exceed $350,000 in the aggregate (the “Cap”).
(b) The aggregate amount of all Losses Parent Indemnitees must bring claims for which an Indemnifying Party shall be liable pursuant to indemnification under (i) Section 6.01(a) or Section 6.02(a8.02(f), as (ii) with respect to the case may benon-payment of any Transaction Expenses, shall not exceed 150% or (iii) the Specific Tax Indemnity Matter, prior to the twelve (12) month anniversary of the Purchase PriceClosing Date after which time the Effective Time Holders will be under no obligation to provide indemnification under those sections provided, that, if a claim under this Section 8.04(b) is brought prior to the expiration of such twelve (12) month anniversary of the Closing Date, such claim shall survive until finally resolved.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 8.04(a) Seller shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representations, or, for the avoidance of any doubt, any claim for indemnification pursuant to Section 7.03 or Section 8.02(b) through Section 8.02(i).
(d) In addition to the limitations set forth in Section 8.04(a), none of the representations Effective Time Holders shall be liable to the Parent Indemnitees for indemnification under Section 7.03 or warranties Section 8.02 for (i) any amount exceeding such Effective Time Holder’s Pro Rata Share of Seller any Losses or (ii) any amount exceeding the amount of the pre-Tax Merger Consideration actually received by each such Effective Time Holder pursuant to this Agreement; provided however, that in the case of Fraud, indemnification is several (and not joint) and not subject to the limitation in clause (i) as to the Effective Time Holder who committed the Fraud, but is still subject to the limitation in clause (ii).
(e) For purposes of this Article VIII, any inaccuracy in or breach of any representation or warranty, and any Losses with respect thereto, shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $125,000 (the "DeductibleBasket"), in which event the Indemnifying Party Seller shall only be required to pay or all such Losses from the first dollar. The aggregate amount of all Losses for which Seller shall be liable for Losses in excess pursuant to Section 8.02(a) shall not exceed twenty percent (20%) of the Deductiblesum of (x) Five Million Dollars ($5,000,000) plus (y) the Earn-Out Components calculated in accordance with Section 2.06 and payable to Seller pursuant to Section 2.06(e) (the "Cap"); provided, however, that the limitation set forth in this Section 8.04(a) shall not apply to (i) any breach or inaccuracy of any of the applicable Fundamental Representations or the representations and warranties set forth in Section 4.21 or (ii) any claims relating to fraud or willful misconduct.
(b) The aggregate amount of all Losses for which an Indemnifying Party Buyer shall be liable pursuant to Section 6.01(a8.03(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase PriceCap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 8.04(a) Seller and Section 8.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 4.02, Section 4.18, Section 4.19, Section 4.21, Section 5.01, Section 5.02 and Section 5.04. (d) Payments by an Indemnifying Party pursuant to Section 8.02 or Section 8.03 in respect of any Loss shall be limited to the representations amount of any liability or warranties damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Indemnified Party in respect of Seller contained in this Agreement if Buyer had knowledge of any such inaccuracy claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or breach indemnity, contribution or other similar agreements for any Losses prior to the Closingseeking indemnification under this Agreement.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02(a) and Section 6.02 8.03(a) shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a): (i) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price US$1,000,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Seller shall only be required to pay or be liable for all such Losses from the first dollar or (ii) in an aggregate amount in excess of the DeductiblePurchase Price actually paid by Buyers to Seller.
(b) The Buyers shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses for in respect of indemnification under Section 8.03(a) exceeds the Basket, in which an Indemnifying Party event Buyers shall be required to pay or be liable pursuant to Section 6.01(a) or Section 6.02(a), as for all such Losses from the case may be, shall not exceed 150% of the Purchase Pricefirst dollar.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 8.04(a) Seller and Section 8.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 4.02, Section 4.06, Section 4.09, Section 4.12, Section 4.12(f), Section 5.01 and Section 5.02 or in respect of fraud, criminal activity or willful misconduct.
(d) For purposes of this Article 8, the representations breach of a representation, warranty or warranties covenant in this Agreement, and any Losses resulting from the breach of Seller any representation, warranty or covenant in this Agreement, shall be determined by disregarding the words, “material,” “material respects,” “Material Adverse Effect” or any other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.2 and Section 6.02 8.3 shall be subject to the following limitations:
(a) The Indemnifying Party Except as otherwise set forth in this Section 8.4, Seller shall not be liable to the Indemnified Party Parent Indemnitees for indemnification under Section 6.01(a8.2(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.2(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price Two Hundred and Seventy Five thousand dollars ($275,000) (the "Deductible"“Basket”), in which event the Indemnifying Party Seller shall only be required to pay or be liable for all such Losses from the first dollar. With respect to any claim as to which the Parent Indemnitees may be entitled to indemnification under Section 8.2(a), Seller shall not be liable for any individual or series of related Losses which do not exceed $5,000 (which Losses shall not be counted towards the other limits in excess of this Section 8.4(a)). Except as otherwise set forth in Section 8.4(c), the Deductible.
(b) The aggregate amount of all Losses for which an Indemnifying Party Seller shall be liable pursuant to Section 6.01(a8.2(a) or Section 6.02(a), as the case may be, shall not exceed 150% $3,225,000 (the “Cap”).
(b) Parent shall not be liable to the Seller Indemnitees for indemnification under Section 8.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.3(a) exceeds the Purchase PriceBasket, in which event Parent shall be required to pay or be liable for all such Losses from the first dollar. With respect to any claim as to which the Seller Indemnitees may be entitled to indemnification under Section 8.3(a), Parent shall not be liable for any individual or series of related Losses which do not exceed $5,000 (which Losses shall not be counted towards the other limits in this Section 8.4(b)). Except as otherwise set forth in Section 8.4(c), the aggregate amount of all Losses for which Parent or Merger Sub shall be liable pursuant to Section 8.3(a) shall not exceed the Cap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, incidentalthe Basket, 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.
(dCap and other limitations set forth in Section 8.4(a) Seller and Section 8.4(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any of the Seller Fundamental Representations, the Parent Fundamental Representations, or any indemnification claims pursuant to Section 8.2(b) through (d) or Section 8.3(b). The maximum aggregate liability of Parent or Seller in respect of any claims by a Parent Indemnitee or Seller Indemnitee, as applicable, for Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any of the Seller Fundamental Representations, the Parent Fundamental Representations, or any indemnification claims pursuant to Section 8.2(b) through (d) or Section 8.3(b), shall not exceed the Purchase Price.
(d) For the purposes of calculating Losses to which any Indemnified Party (as defined below) is entitled under this Article 8, (a) such Losses shall not include any punitive, special, exemplary or consequential damages, damages for lost profits, incidental damages, indirect damages, unrealized expectations, damages for diminution in value or damages computed on a multiple of earnings or similar basis, except to the extent actually awarded to a Governmental Authority or other third party; (b) such Losses shall be determined without duplication of recovery by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (c) such Losses shall be reduced by the amount of any proceeds that any Indemnified Party receives pursuant to the terms of any insurance policies, 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 8); (d) such Losses shall be reduced by the amount of any prior or subsequent recovery by a Parent Indemnitee from any other Person with respect to such Losses (less any related costs and expenses of recovering such amount from such other Person); and (e) each of the representations and warranties that are qualified by the words “material” or warranties “Material Adverse Effect” (or any correlative terms) shall be deemed to have been given as though there were no such qualifications for purposes of Seller contained in this Agreement if Buyer had knowledge calculating the amount of such Losses arising out of or caused by any breach off inaccuracy in any such representation or warranty and for the threshold issue as to whether or not there is a breach prior or inaccuracy with respect to any representation or warranty; provided, that with respect to clauses (c) and (d), if any Indemnified Party actually receives insurance proceeds or any amounts from any other Person with respect to such Losses after receipt by such Indemnified Party of an indemnification payment hereunder, such Indemnified Party shall promptly reimburse the ClosingIndemnifying Party for the aggregate amount actually received from such other Person less any related costs or expenses as specified in such subsections (c) and (d). Except as otherwise set forth herein, Parent Indemnitees shall use commercially reasonable efforts (taking into account the existence of any customer relationships and the merits of the claim) to pursue payment from any third party under any agreement, contract, arrangement or commitment pursuant to which Parent is entitled to indemnification for any Loss for which a Parent Indemnitee seeks indemnification pursuant to this Article 8.
Appears in 1 contract
Sources: Merger Agreement (CardConnect Corp.)
Certain Limitations. The party making a claim under this 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 6.01 5.1 and Section 6.02 5.2 shall be subject to the following limitations:
(a) The Indemnifying Party Seller and Seller Principals, in their capacity as an Indemnitor, shall not be liable to the Indemnified Party any Indemnitee for indemnification under Section 6.01(a) and Section 6.02(a), as the case may be, 5.1 until the aggregate amount of all Losses Damages in respect of indemnification under Section 6.01(a) or Section 6.02(b), as the case may be, 5.1 exceeds 100% of the Purchase Price $25,000.00 (the "Deductible"“Basket), in which event the Indemnifying Party Purchaser Parties Indemnitees may claim indemnification for all Damages, including Damages less than or equal to the Basket. Purchaser and Parent, in their capacity as an Indemnitor, shall only be required to pay or not be liable to any Indemnitee for Losses indemnification under Section 5.2 until the aggregate amount of all Damages in excess respect of indemnification under Section 5.2 exceeds the DeductibleBasket, in which event the Seller Parties Indemnitees may claim indemnification for all Damages, including Damages less than or equal to the Basket.
(b) The aggregate amount of all Losses Damages for which an Indemnifying Party Seller and Seller Principals shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, 5.1 shall not exceed 150% $2,000,000.00 (the “Cap”). The aggregate amount of all Damages for which Purchaser and Parent shall be liable pursuant to Section 5.2 shall not exceed the Cap. Asset Purchase Price.Agreement Information Management Solutions, L.L.C. and PDS Acquisition, Corp.
(c) In no event shall any Indemnifying Party Seller, Seller Principals, purchaser or parent be liable to any Indemnified Party Indemnitee for any punitive, incidental, consequential, special, 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 AgreementAgreement or any Operative Document, or diminution of value or any damages based on any type of multiple.
(d) 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 had knowledge of such inaccuracy or breach prior to the Closing.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 6.2 and Section 6.02 6.3 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a6.3(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a6.3(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $35,000.00 (the "Deductible"“Basket”), in which event the Indemnifying Party Seller shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party Seller shall be liable pursuant to Section 6.01(a6.3(a) or Section 6.02(a), as the case may be, shall not exceed 150% of $350,000.00 (the Purchase Price.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive“Cap”). Notwithstanding the foregoing, 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.
(d) Seller limitations set forth herein shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation or in the case of fraud.
(b) Buyer shall not be liable to the representations Seller Indemnitees for indemnification under Section 6.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 6.2(a) exceeds the Basket, in which event Buyer shall be required to pay or warranties be liable for all such Losses from the first dollar. The aggregate amount of Seller all Losses for which Buyer shall be liable pursuant to Section 6.2(a) shall not exceed the Cap.
(c) For purposes of this Article 6 (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), any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Sources: Asset Purchase Agreement (bioAffinity Technologies, Inc.)
Certain Limitations. The party making a claim under this 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 6.01 Sections 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party shall not be liable Notwithstanding anything in this Agreement to the contrary, no indemnification claims for Losses shall be asserted by the Buyer Indemnified Party for Parties under Article VIII unless (i) any individual Loss or group or series of related Losses in respect of indemnification under Section 6.01(a8.02 exceeds FIFTY THOUSAND DOLLARS ($50,000) and Section 6.02(a(such Loss or group or series of related Losses that does not exceed $50,000, the “DeMinimis Losses”), as the case may be, until and (ii) the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02 (which shall not include for such purposes DeMinimis Losses) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price THREE MILLION DOLLARS ($3,000,000) (the "Deductible"“Basket”), in which event the Indemnifying Party Shareholders, in proportion to their Pro Rata Share, severally shall only be required to pay or be liable for all such Losses (only for amounts in excess of the Deductible.
(b) Basket). The aggregate amount of all Losses for which an Indemnifying Party the Shareholders shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, 8.02 shall not exceed 150% THIRTY MILLION DOLLARS ($30,000,000) (the “Cap”).
(b) Buyer shall not be liable to the Seller Indemnified Parties for indemnification under Section 8.03(a) for DeMinimis Losses and unless the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) (which shall not include for such purposes DeMinimis Losses) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses (only for amounts in excess of the Purchase PriceBasket). The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.
(c) In Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and 8.04(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of claims pursuant to Section 8.02(a)(iii), a breach of any Fundamental Representation or a breach of Section 3.22; provided, however, that the cumulative indemnification obligations of the Shareholders under Section 8.02, on the one hand, and Buyer under Section 8.03, on the other hand, shall 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 in the aggregate exceed an amount equal to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multipleFinal Merger Consideration (the “Merger Consideration Cap”).
(d) Seller For purposes of this Article VIII, any breach of any representation or warranty (other than Section 3.06, Section 3.07, Section 3.08, Section 3.09(a), Section 3.12(d), Section 3.16(a), Section 3.20(a) and Section 3.20(b)) shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty; provided, however, that such qualification shall not be liable read out of any defined term that incorporates such materiality qualification (e.g. “Material Contract”, “Material Customer”, “Material Supplier”). For purposes of the indemnity in Section 8.02(a)(i), any breach of Section 3.19 shall be determined without regard to the matters disclosed in Item 2 of Schedule 3.19.
(e) Notwithstanding the foregoing, the Shareholders shall only be obligated to indemnify the Buyer Indemnified Parties for fifty (50) per cent of the Losses otherwise indemnifiable pursuant to Section 8.02(a)(vi), up to a maximum amount of THREE MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS ($3,250,000) indemnified by the Shareholders pursuant to Section 8.02(a)(vi), and the limitations on indemnification set forth in Sections 8.04(a) and (c) shall not apply to the indemnification obligations of the Shareholders pursuant to Section 8.02(a)(vi).
(f) No indemnification shall be available to any of the Buyer Indemnified Parties pursuant to Section 8.02(a)(i) to the extent that any Losses are a result of, arise out of or relate to (i) environmental conditions identified at any of the Real Property through the conduct of any invasive environmental sampling or testing, or (ii) environmental conditions identified in the Phase One environmental site assessments identified in Item 2 of Schedule 3.19 with respect to which the Buyer Indemnified Parties undertake remediation or further invasive environmental sampling or testing after the Closing Date, in each case, except to the extent that such remediation, sampling or testing is required pursuant to Environmental Laws.
(g) Section 8.02(a)(vi) shall be the sole source of indemnification under this ARTICLE VI Agreement for any Losses based upon or as a result of, arising out of or relating to any inaccuracy Releases of Hazardous Materials at the Real Property at Dowagiac, Michigan, Marnaz, France or Kamienna Gora, Poland arising out of an environmental condition identified in or breach of any of the representations or warranties of Seller contained in this Agreement if Buyer had knowledge Phase One environmental site assessment of such inaccuracy or breach prior to the ClosingReal Property listed in Item 2 of Schedule 3.19.
Appears in 1 contract
Sources: Merger Agreement (Nn Inc)
Certain Limitations. The party making a claim under this 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 6.01 6.02 and Section 6.02 6.03 shall be subject to the following limitations:
(a) The Indemnifying Party Except with respect to claims for inaccuracies or breaches of Fundamental Representations (for which no such limitation shall apply), Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a6.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a6.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $65,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Seller shall only be required to pay or be liable for all such Losses in excess from the first dollar, without consideration of the Deductible.
(b) The Basket. Except with respect to claims for inaccuracies or breaches of Fundamental Representations, the aggregate amount of all Losses for which an Indemnifying Party Seller shall be liable pursuant to Section 6.01(a6.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% $1,300,000 (the “Cap”). Seller’ maximum aggregate liability to the Buyer Indemnitees for indemnification under Section 6.02(a) for inaccuracies or breaches of Fundamental Representations shall not exceed the Purchase Price.
(b) Except with respect to claims for inaccuracies or breaches of Fundamental Representations (for which no such limitation shall apply), Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 6.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 6.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar, without consideration of the Basket. Except with respect to claims for inaccuracies or breaches of Fundamental Representations, the aggregate amount of all Losses for which Seller shall be liable pursuant to Section 6.03(a) shall not exceed the Cap. Buyer’s maximum aggregate liability to the Seller Indemnitees for indemnification under Section 6.03(a) for inaccuracies or breaches of Fundamental Representations shall not exceed the Purchase Price.
(c) In no event Notwithstanding the foregoing, the limitations set forth in Section 6.04(a) and Section 6.04(b) shall not apply in any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special, or indirect damages, including loss case 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 multiplefraud.
(d) Seller shall not be liable under this ARTICLE VI for any Losses based upon or arising out For purposes of Section 6.02(a), any inaccuracy in or breach of any of the representations representation or warranties of Seller warranty, and any Losses resulting therefrom, shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Sources: Asset Purchase Agreement (Kingsway Financial Services Inc)
Certain Limitations. The party making a claim under this 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 6.01 9.02 and Section 6.02 9.02(d) shall be subject to the following limitations:
(a) The Indemnifying Party Stockholders shall not be liable to the Indemnified Party Parent Indemnitees for indemnification under Section 6.01(a9.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a9.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $175,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Stockholders shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party Stockholders shall be liable pursuant to Section 6.01(a9.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase PricePrice (the “Cap”).
(b) Parent shall not be liable to the Stockholder Indemnitees for indemnification under Section 9.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.03(a) exceeds the Basket, in which event Parent shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Parent shall be liable pursuant to Section 9.03(a) shall not exceed the Cap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 9.04(a) Seller and Section 9.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 3.01, the first two sentences of Section 3.02(a), Section 3.04, Section 3.19, Section 3.20, Section 3.25, Section 4.01, Section 4.02, Section 4.05, Section 5.01 and Section 5.04.
(d) For purposes of this Article IX and a claim for indemnification relating to a breach or alleged breach of a representation or warranty that may only be considered breached if the defect, inaccuracy, mistake or misrepresentation is material, or has a Material Adverse Effect or similar qualification contained in or otherwise applicable to such representation or warranty, the materiality (or Material Adverse Effect or similar qualification contained in or otherwise applicable to such representation or warranty) of such defect, in accuracy, mistake or misrepresentation will not be considered for purposes of determining whether a breach of such representation or warranty has occurred or for determining the amount of the representations or warranties of Seller contained in this Agreement if Buyer had knowledge Losses arising out of such inaccuracy or breach prior to the Closingbreach.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 (and, with respect to Section 8.04(c), Section 5.08) shall be subject to the following limitationslimitations and additional provisions:
(a) The Indemnifying Party Except as set forth in Section 8.04(c), neither the Class A Stockholder nor any other Company Stockholder shall not be liable to the Indemnified Party Parent Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price an amount equal to $80,000 (the "“Deductible"”), in which event the Indemnifying Party Class A Stockholder shall only be required to pay or be liable for all such Losses in excess of the Deductible.
(b) The . Except as set forth in Section 8.04(c), the aggregate amount of all Losses for which an Indemnifying Party Stockholders shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% an amount to $800,000 (the “Cap”).
(b) Except as set forth in Section 8.04(c), the aggregate amount of all Losses for which Parent shall be liable pursuant to Section 8.03(a) shall not exceed the Purchase PriceCap (except for any Losses on the part of a Stockholder Indemnitee claiming indemnification hereunder resulting from Fraud, intentional misrepresentations and intentional misconduct, which shall not be subject to the Cap).
(c) 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 Notwithstanding anything to the breach or alleged breach contrary herein, (i) the aggregate amount of this Agreement, or diminution of value or any damages based on any type of multiple.
(d) Seller shall not be liable under this ARTICLE VI for any all Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation, for which the Class A Stockholder shall be liable pursuant to Section 8.02(a), or any breach of any breach of any covenant set forth in this Agreement, for which the Class A Stockholder shall be liable pursuant to Section 8.02(b) shall not exceed $8,000,000, (ii) except as provided in clause (iii) below, in no event shall the Class A Stockholder’s liability pursuant to Section 5.08 and this ARTICLE VIII exceed the value (as if such amounts were all received as of Closing) of the representations Closing Merger Consideration, and (iii) any Losses on the part of the Parent Indemnitee claiming indemnification hereunder resulting from Fraud, intentional misrepresentations and intentional misconduct, shall not be subject to the Cap.
(d) Any indemnification payment required under this ARTICLE VIII shall be adjusted for the amount of any Losses that are actually recovered from any insurance proceeds (net of cost of enforcement and collection of insurance proceeds and deductibles and increases in insurance premiums) and any indemnity, contribution or warranties similar payment received by the Indemnified Party in respect of Seller contained any such Losses. Each Party shall use commercially reasonable efforts to assert a claim where coverage for such claim may be available pursuant to applicable existing insurance policies; provided, that neither Parent Indemnitees nor Stockholder Indemnitees will have any obligation to have any claims under such insurance policies finally resolved prior to making a claim for indemnification hereunder.
(e) No Party shall be entitled to (i) double recovery for any indemnifiable Losses even though such Losses may have resulted from the breach of more than one of the representations, warranties, agreements and covenants in this Agreement if Buyer had knowledge of such inaccuracy or breach prior (ii) recover any Losses with respect to Excluded Taxes or, without duplication, any amounts to the Closingextent such amounts were treated as liabilities or were otherwise specifically taken into account in computing the Closing Merger Consideration or Actual Merger Consideration, as applicable.
(f) Nothing in this Agreement is intended to limit any obligation under applicable Law with respect to mitigation of damages.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) (i) 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 $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 Section 6.02(a), as the case may be, (ii) until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $350,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Seller shall only be required to pay or be liable for all such Losses in excess of $175,000 (the “Deductible.
(b) ”). The aggregate amount of all Losses for which an Indemnifying Party Seller shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% $12,130,000 (the “Cap”).
(b) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) (i) 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 Purchase PriceDeductible. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.
(c) Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(b) shall not apply to Losses based upon, arising out of, with respect to or by 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), Section 3.25, Section 4.01, Section 4.02(a), Section 4.03, and Section 4.04, for which, together with all payments made under Section 6.03 and all other Losses payable by such party based upon, arising out of, with respect to or by reason of any inaccuracy in, breach of, any such representations, warranties, covenants, agreements or obligations under this Agreement shall not exceed one hundred percent (100%) of the Purchase Price in the aggregate.
(d) For purposes of this ARTICLE 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), any inaccuracy in or breach of any representation or warranty shall 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 similar damages, including loss of future revenue or income, loss of business reputation or opportunity relating except to the extent, in each case, (i) such damages are actually paid or payable by an Indemnified Party to another Person with respect to a Third-Party Claim or (ii) such damages (x) naturally and necessarily flow from the breach or alleged breach causing such damages and (y) were reasonably foreseeable at the time of execution of this Agreement, or diminution of value or any damages based on any type of multiple.
(d) 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 had knowledge of such inaccuracy or breach prior to the Closing.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 and Section 6.02 shall be subject to the following limitations:
(a) The Indemnifying provisions of this Section 10.3 shall not limit or impair any obligation to provide indemnification under Article VI or Article VII or Section 10.5 for any liability relating to ACL Excluded Assets, ACL Excluded Liabilities, Vectura Excluded Assets or Vectura Excluded Liabilities or a breach of the covenants contained in Section 2.1, Section 5.4, Section 5.8 or Section 5.9 hereof.
(b) The obligations of CSX or the Vectura Parties to indemnify any Indemnified Party pursuant to Section 10.2 shall terminate on May 31, 1999 except with respect to those representations and warranties set forth in Sections 3.17 and 4.17, as applicable, which shall survive until the expiration of the applicable statute of limitations, and in Sections 3.14 and 4.14, as applicable, which shall survive for a period of three years hereafter.
(c) Notwithstanding anything contained herein to the contrary, neither CSX nor any Vectura Party shall have any obligation to provide indemnification under Section 10.2 relating to the matters disclosed in Schedule 3.14 or Schedule 4.14, nor for any breach of the representations and warranties contained in Article VII (except as may be provided in Article VII).
(d) Notwithstanding anything contained herein to the contrary, the maximum aggregate liability of CSX to all ACL Holdings Indemnified Parties taken together for all Adverse Consequences shall be limited to $85 million, and the maximum aggregate liability of the Vectura Parties to all ACL Holdings Indemnified Parties taken together for all Adverse Consequences shall be limited to $11,250,000.
(e) Notwithstanding anything contained herein to the contrary, (i) CSX shall not be liable obligated to the Indemnified Party for make any indemnification payment under Section 6.01(a) 10.2 unless and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in Adverse Consequences sustained by the ACL Holdings Indemnified Parties collectively exceed $10,000,000, and any indemnification with respect to Adverse Consequences shall be made by CSX only to the extent of such excess over such $10,000,000, and (ii) the Vectura Parties shall not be obligated to make any indemnification payment under Section 6.01(a) or Section 6.02(b), as 10.2 unless and until the case may be, exceeds 100% of the Purchase Price (the "Deductible"), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of the Deductible.
(b) The aggregate amount of all Losses for which an Indemnifying Party Adverse Consequences sustained by the ACL Holdings Indemnified Parties collectively exceed $1,000,000, and any indemnification with respect to Adverse Consequence shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as made by the case may be, shall not exceed 150% of the Purchase Price.
(c) 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 Vectura Parties to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple.
(d) 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 had knowledge extent of such inaccuracy or breach prior to the Closingexcess over $1,000,000.
Appears in 1 contract
Certain Limitations. The party making a claim under For purposes of this ARTICLE VI is referred to as Article 9, the "Indemnified Party," representations 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 6.01 warranties of Seller and Section 6.02 shall be subject to the following limitations:
(a) The Indemnifying Party shall not be liable to the Indemnified Party for indemnification under Section 6.01(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price (the "Deductible"), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of the Deductible.
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 6.01(a) or Section 6.02(a)Buyer, as the case may be, shall not exceed 150% be read without giving effect to any "materiality" or "Material Adverse Effect" qualification. Seller's obligation to indemnify for Buyer Losses under Section 9.1 (other than any Buyer Losses with respect to breaches of (i) the representations and warranties contained in Section 3.1 (Organization), Section 3.2 (Corporate Authority), Section 3.3 (No Violation) and Section 3.15 (Brokers and Finders), (ii) the covenants and agreements under this Agreement to the extent they survive the Closing and (iii) Section 9.1(g)) shall accrue only if the aggregate of all such Buyer Losses exceeds $1,000,000 (the "Minimum"). Seller's liability for all Buyer Losses shall be limited to (x) $35,000,000 for any Buyer Losses with respect to (a) breaches of the representations and warranties contained in Section 3.16 (Assets Used in Performing the Business), (b) any and all existing claims in connection with breach of contract, death, personal injury, other injury to Persons, property damage, losses or depreciation of rights (whether based on statute, negligence, breach of warranty, strict liability or any other theory) caused by or resulting from, directly or indirectly, acts or omissions by Seller on or before the Closing Date, (c) breaches of the representations and warranties contained in Section 3.13 (Compliance with Law; Environmental Matters) and (d) Section 9.1(c) and (y) five percent (5%) of the Purchase Price.
(c) In Price for all other Buyer Losses; provided, however, that in no event shall Seller's liability with respect to clauses (x) and (y) exceed $35,000,000. For purposes of computing the Minimum, there shall be a materiality limit of $50,000 for each separate claim (or series of related claims) for indemnification or, in respect of claims for indemnification under Section 9.1(b)(v) which have a similar cause, for each separate site (the "Materiality Limit"); provided, however, that if any Indemnifying Party be liable to any Indemnified Party claim (or series of related claims) for any punitive, incidental, consequential, special, or indirect damagesindemnification, including loss claims for indemnification under Section 9.1(b)(v) which have a similar cause, exceeds the Materiality Limit, such claim(s) shall be includable in computing the Minimum. If the Closing shall not occur for failure of future revenue Seller or incomeBuyer, loss of business reputation as the case may be, to consummate the transactions contemplated by this Agreement when its conditions precedent contained in Article 7 or opportunity relating Article 8, as the case may be, have been fulfilled, then Seller or Buyer, as the case may be, shall pay to the breach other Party as the exclusive remedy for its failure to consummate the transactions contemplated by this Agreement a termination fee (as liquidated damages) of $5,000,000 by wire transfer of same day funds to an account previously designated in writing by Seller or alleged breach Buyer, as the case may be. The calculation of the Minimum and the Materiality Limits for purposes of this Agreement, or diminution of value or any damages based on any type of multipleSection 9.4 shall include Buyer Losses pursuant to Section 2.3(b).
(d) 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 had knowledge of such inaccuracy or breach prior to the Closing.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Sellers and Members shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $157,500 (the "Deductible"“Basket”), in which event the Indemnifying Party Sellers and Members shall only be required to pay or be liable for any such Losses in excess of the DeductibleBasket. Representations and warranties in Article IV that are qualified by the terms “material” or “Material Adverse Effect”, or other terms of similar impact or effect, shall be read without regard to such terms (i.e., as if such words were deleted from such representation or warranty), and if the Losses in respect of any breach of any such representation and warranty (as so modified) do not exceed $15,750, such Losses will not count toward the Basket or otherwise be indemnified; provided that if the aggregate amount of all such Losses exceeds $50,000, then all such Losses (including the first $50,000 of such Losses) shall count toward the Basket, but Sellers and Members shall be liable solely for the extent of Losses in excess of the Basket.
(b) The Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses for in respect of indemnification under Section 8.03(a) exceeds the Basket, in which an Indemnifying Party event Buyer shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, shall not exceed 150% for any such Losses in excess of the Purchase PriceBasket.
(c) In no event shall the aggregate amount of indemnity required to be paid by Sellers and Members pursuant to Section 8.02(a) or by Buyer pursuant to Section 8.03(a) exceed $1,570,000 (the “Cap”); provided, that the Cap shall not apply with respect to a breach of any Indemnifying Party be liable to any Indemnified Party representation or warranty in Section 4.01, Section 4.02, the first sentence of Section 4.08, Section 4.19, Section 4.21, Section 4.23, Section 5.01 or Section 5.02. Without limiting the applicability of the previous sentence, the aggregate liability of Seller for any punitiveLosses arising out of, incidental, consequential, specialresulting from, or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to (i) Section 8.02(a) or (ii) fraud, shall be limited to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiplePurchase Price.
(d) Seller Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 4.02, the first sentence of Section 4.08, Section 4.18, Section 4.19, Section 4.21, Section 4.23, Section 5.01 or Section 5.02.
(e) For the avoidance of doubt, the limitations set forth in Section 8.04(a), Section 8.04(b), and Section 8.04(c) shall not apply to Losses based upon, arising out of, with respect to or by reason of Sections 8.02(b) or (c).
(f) The parties shall cooperate with each other to resolve any claim, Liability or Loss with respect to which one party is obligated to indemnify the other party hereunder, including making commercially reasonable efforts to resolve such claim, Liability or Loss. For any indemnifiable claim hereunder, (i) the recovery by the Indemnified Party shall be limited to the amount of actual out-of-pocket indemnifiable Losses sustained by such Indemnified Party and (ii) the Indemnified Party shall seek indemnification from any then-available third party insurance coverage. For all purposes of this ARTICLE VIII, “Losses” shall be net of any third party insurance proceeds or any indemnity, contributions or other similar payment actually paid to the Indemnified Party or its Affiliates in connection with the facts giving right to the right of indemnification (provided that Buyer shall be under no obligation to initiate any legal proceedings to obtain such payments).
(g) In any case where a Buyer Indemnitee recovers from third Persons any amount in respect of a matter with respect to which Seller have made an indemnification payment to such Buyer Indemnitee pursuant to this Agreement, such Buyer Indemnitee shall promptly pay over to Sellers the amount so recovered (after deducting therefrom the full amount of the representations expenses incurred by the Buyer Indemnitee in procuring such recovery), and any amount expended by Sellers in pursuing or warranties defending any claim arising out of Seller such matter, but not in excess of the amount of the indemnification payment previously paid by Sellers to or on behalf of such Buyer Indemnitee in respect of such matter.
(h) Notwithstanding anything contained in the Transaction Documents to the contrary, no Buyer Indemnitee may recover duplicative Losses in respect of a single set of facts or circumstances under more than one representation or warranty in this Agreement if Buyer had knowledge regardless of whether such inaccuracy facts or circumstances would give rise to a breach prior of more than one representation or warranty in this Agreement.
(i) Notwithstanding the foregoing or anything else contained herein, subject to the Closingproviso in Section 8.09, if the Closing occurs, Buyer Indemnitees shall be indemnified for any Losses incurred by them as a result of any breaches in any representations and warranties herein, in the B▇▇▇ of Sale, the Assignment and Assumption Agreement, the License Agreement, the Call Option Agreement or in any certificate or instrument delivered by or on behalf of Sellers pursuant to this Agreement, or any changes in facts or circumstances covered by Sellers’ representations and warranties set forth in any representations and warranties herein, the B▇▇▇ of Sale, the Assignment and Assumption Agreement, the License Agreement, the Call Option Agreement or in any certificate or instrument delivered by or on behalf of Sellers pursuant to this Agreement, that occur between the Initial Disclosure Date and the Closing Date, except for changes that occur in the ordinary course of business in (i) the list of Sellers’ Inventory set forth in Section 4.12 of the Disclosure Schedule, (ii) the list of Sellers’ Material Customers set forth in Section 4.14(a) of the Disclosure Schedule and (iii) the list of Sellers’ Material Suppliers set forth in Section 4.14(b) of the Disclosure Schedule. For the avoidance of doubt, the indemnification set forth in this Section 8.04(i) shall apply even if Seller’s representations and warranties set forth in Article IV, as supplemented by Schedule Updates, are complete and correct as of the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Twinlab Consolidated Holdings, Inc.)
Certain Limitations. The party making a claim under this 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 6.01 7.02 and Section 6.02 7.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a7.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a7.02(a) or Section 6.02(bamounts to Five Hundred Thousand United States Dollars ($500,000) (the “Basket”), as the case may be, exceeds 100% of the Purchase Price (the "Deductible"), in after which event the Indemnifying Party Seller shall only be required to pay or be liable for only those Losses in excess of the Deductible.
(b) Basket. The aggregate amount of all Losses for which an Indemnifying Party Seller shall be liable pursuant to Section 6.01(a7.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% Three Million Five Hundred Thousand United States Dollars ($3,500,000) (the “Cap”).
(b) Notwithstanding the provisions of Section 7.04(a), with respect to any claim as to which a Buyer Indemnitee may be entitled to indemnification under this ARTICLE VII, the Purchase PriceSeller shall not be liable for any individual Losses which do not exceed ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars ($100,000) (which Losses shall not be counted toward the Basket) (the “De Minimis Threshold”).
(c) In no event shall Notwithstanding the foregoing or 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 provision in this Agreement, or diminution of value or any damages based on any type of multiple.
(di) Seller the limitations set forth in Section 7.04(a) and Section 7.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in (A) Section 3.01 (Organization and Authority of Seller), Section 3.02 (Organization, Authority and Qualification of the Company), Section 3.03 (Subsidiaries), Section 3.04 (Capitalization), or Section 3.24 (Brokers), and (B) the aggregate liability of Seller under this Agreement, shall be limited to the aggregate amount of the consideration paid to Seller under this Agreement.
(d) Notwithstanding any other provision of this Agreement, Seller shall not be liable to indemnify Buyer or any other Buyer Indemnitees in respect of any Losses to the extent that such Losses flow through, have been accounted for, and/or have been adjusted between the parties hereto as part of the Final Amounts calculations.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, commercially reasonable efforts to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto.
(f) Payments by an Indemnifying Party pursuant to Section 7.02 or Section 7.03 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 actually received by the Indemnified Party (or the Company and the Subsidiaries) in respect of any such claim. The foregoing shall not limit or delay the Indemnified Party’s right to pursue a claim and recover for an indemnifiable Loss pursuant to this ARTICLE VII. The Indemnified Party shall use its commercially reasonable efforts to pursue claims under applicable insurance policies or indemnity, contribution, or other similar agreements. If the amount of any Losses at any time subsequent to the making of an indemnity payment in respect thereof is reduced by any insurance proceeds or any indemnity, contribution or other similar payment actually received by the Indemnified Party (or the Company and the Subsidiaries) in respect of any such claim, the amount of such reduction, less any costs incurred in connection therewith (including increased premiums directly attributable thereto), will promptly be repaid by the Indemnified Party to the Indemnifying Party (not to exceed the amount paid by the Indemnifying Party to the Indemnified Party with respect thereto).
(g) For the sole purpose of determining the amount of Losses to which an Indemnified Person may be entitled under this ARTICLE VII, ARTICLE VII (and not for determining whether or not any breaches of representations or warranties have occurred), each of Seller the applicable representations and warranties that contains any “material” or “Material Adverse Effect” (other than in Section 3.08(a), Section 3.09(a), the first two sentences of Section 3.12(b), Section 3.18(b), the defined terms “Material Contract,” “Material Customer,” and “Material Supplier”) shall be read as though such qualifications were not contained in this Agreement if Buyer had knowledge of such inaccuracy or breach prior to the Closingtherein.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Northwest Pipe Co)
Certain Limitations. The party making a claim under this 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 6.01 and Section 6.02 shall be subject to the following limitations:
(a) The Indemnifying Party shall not be liable to the Indemnified Party for indemnification under Section 6.01(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price (the "Deductible"), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of the Deductible.
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase Price.
(c) 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.
(d) Seller shall not be liable under this ARTICLE VI required to make any indemnification payment pursuant to Section 6.2 for any Losses based upon or arising out of any inaccuracy in or breach of any representation or warranty until such time as the total amount of all Damages (including the representations or warranties of Seller contained in this Agreement if Buyer had knowledge of Damages arising from such inaccuracy or breach prior and all other Damages arising from any other inaccuracies or breaches of any representations or warranties) that have been suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise become subject, exceeds $100,000 in the aggregate. If the total amount of such Damages exceeds $100,000 in the aggregate, then the Indemnitees shall be entitled to be indemnified against and compensated and reimbursed for the total amount of such Damages.
(b) The total amount of Damages which the Purchaser may be entitled to be indemnified against pursuant to Section 5.2 shall be limited in the aggregate to, in the case of the Seller’s indemnification obligations, the Escrowed Shares, provided, that solely with respect to Damages resulting from the Seller’s breach of the non-competition covenants in Section 7.5 hereof, the total amount of Damages which Purchaser may be entitled to be indemnified against shall be limited to the ClosingSeller’s forfeiture of the total Stock Consideration.
(c) The total amount of Damages which the Seller may be entitled to be indemnified against (i) pursuant to Section 6.3(a) shall be limited to $7,500,000, and (ii) pursuant to Section 6.3(b) and 6.3(c), collectively, shall be limited to $3,000,000.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Stockholders and Optionholders shall not be liable to the Indemnified Party Parent Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $150,000.00 (the "Deductible"“Basket”), in which event the Indemnifying Party Stockholders and Optionholders shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party any Stockholder or Optionholder shall be liable pursuant to Section 6.01(a8.02 (a) or Section 6.02(a), as the case may be, shall not exceed 150% twenty five percent (25%) of the Purchase Priceoverall consideration received by such Stockholder or Optionholder except in the case of a Loss resulting from the Company’s failure to pay any Taxes in which case it is not subject to the foregoing cap.
(b) Parent shall not be liable to the Stockholder 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 Parent shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Parent shall be liable pursuant to Section 8.03(a) shall not exceed $5.0 million.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 8.04(a) Seller and Section 8.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 3.01, Section 3.02(a), Section 3.04, Section 3.19, Section 3.20, Section 3.25, Section 4.01, Section 4.04 and Section 4.06. Notwithstanding anything to the contrary in this Article VIII or Article VI, in no event shall any Stockholder or Optionholder have a liability for Losses in excess of the representations consideration received by such Stockholder or warranties Optionholder.
(d) For purposes of Seller this Article VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Sources: Merger Agreement (Fusion Telecommunications International Inc)
Certain Limitations. The party making a claim under this ARTICLE VI Article VII is referred to as the "“Indemnified Party," ”, and the party against whom such claims are asserted under this ARTICLE VI Article VII is referred to as the "“Indemnifying Party." ”. The indemnification provided for in Section 6.01 7.02 and Section 6.02 7.03 shall be subject to the following limitations:
(a) The Indemnifying Party shall not be liable to the Indemnified Party for indemnification under Section 6.01(a7.02(a) and or Section 6.02(a7.03(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a7.02(a) or Section 6.02(b7.03(a), as the case may be, exceeds 100% of the Purchase Price One Hundred Fifty Thousand Dollars ($150,000) (the "Deductible"“Basket”), in which event the Indemnifying Party shall only be required to pay or be liable for all such Losses in excess from the first dollar without regard to the Basket. With respect to any claim as to which the Indemnified Party may be entitled to indemnification under Section 7.02(a) or Section 7.03(a), as the case may be, the Indemnifying Party shall not be liable for any individual or series of related Losses which do not exceed Five Thousand Dollars ($5,000) (which Losses shall not be counted toward the DeductibleBasket).
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 6.01(a7.02(a) or Section 6.02(a7.03(a), as the case may be, shall not exceed 150% Two Million Three Hundred Thousand Dollars ($2,300,000), provided, however, with respect to breaches of Section 3.27(c), the aggregate amount of all Losses for which the Seller will be liable shall not exceed the Purchase Price.Price and Seller shall not be liable for any such individual or series of related Losses which do not exceed Five Thousand Dollars ($5,000)
(c) 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 Notwithstanding anything in this Agreement to the breach contrary, the limitations set forth in this Section 7.04 shall not apply to (i) Losses incurred in connection with or alleged arising from any breach of this Agreement, or diminution inaccuracy in any Fundamental Representation; (ii) Losses incurred in connection with or arising from any Policy Default; or (iii) in the case of value fraud or any damages based on any type of multipleintentional misrepresentation.
(d) Seller Payments by an Indemnifying Party pursuant to Section 7.02 or Section 7.03 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds actually received by the Indemnified Party (or the Company) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts (which shall not be liable include bringing a lawsuit or arbitration proceeding against any insurer) to recover under this ARTICLE VI applicable insurance policies for any Losses based upon prior to being entitled to indemnification under this Agreement; provided, however, that the Indemnified Party shall still be entitled to assert a claim for indemnification prior to attempting to so recover under applicable insurance policies, and such claim shall not, therefore, be barred by any subsequent expiration of the applicable survival period. In the event the Indemnified Party recovers proceeds or arising out benefits under any insurance policy relating to a Loss after it receives payment or other credit from the Indemnifying Party under this Agreement with respect to such Loss, then the Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or credit provided by such Indemnifying Party in connection with such Loss up to (i) the amount of such payment or credit or (ii) the amount of such insurance proceeds or benefits, whichever is less, in either case, net of any inaccuracy in expenses or breach costs incurred by the Indemnified Party by reason of making such claim or collecting such amount.
(e) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that such Indemnified Party reasonably expects to, or does, give rise thereto.
(f) For purposes of determining the representations amount of Losses for which a Person is entitled to indemnification under this Article VII, and for determining whether a representation, warranty or warranties of Seller covenant has been breached, the parties hereto agree to disregard all qualifications and exceptions contained in this Agreement if Buyer had knowledge any representations, warranties or covenants relating to materiality, Material Adverse Effect or words of such inaccuracy or breach prior to the Closingsimilar import.
Appears in 1 contract
Sources: Stock Purchase and Redemption Agreement (P&f Industries Inc)
Certain Limitations. The party making a claim under this 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 6.01 8.2 and Section 6.02 8.3 shall be subject to the following limitations:
(a) The Indemnifying Party Sellers and the Owners shall not be liable to the Indemnified Party Purchaser Indemnitees for indemnification under Section 6.01(a8.2(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.2(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price Five Hundred Forty Thousand Dollars ($540,000) (the "Deductible"“Basket Amount”), in which event the Indemnifying Party Sellers and the Owners shall only be required to pay or be liable for all such Losses only in excess of the Deductible.
(b) Basket Amount. The aggregate amount of all Losses for which an Indemnifying Party the Seller and the Owners shall be liable pursuant to Section 6.01(a8.2(a) or Section 6.02(a), as the case may be, shall not exceed 150% Nine Million Dollars ($9,000,000) (the “Cap Amount”).
(b) The Purchaser shall not be liable to the Sellers Indemnitees for indemnification under Section 8.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.3(a) exceeds the Basket Amount, in which event the Purchaser shall be required to pay or be liable for all such Losses only in excess of the Purchase PriceBasket Amount. The aggregate amount of all Losses for which the Purchaser shall be liable pursuant to Section 8.3(a) shall not exceed the Cap Amount.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, incidental, consequential, special, or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to (i) the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple.
(dlimitations set forth in Section 8.4(a) Seller and Section 8.4(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.1 (Organization and Authorization of Sellers and Owners), Section 4.2 (Organization and Good Standing of Company; Authorization), Section 4.4 (Capitalization), Section 4.5 (Subsidiaries), the representations first sentence of Section 4.8 (Title to Assets; Sufficiency), Section 4.10 (Taxes), Section 5.1 (Organization and Good Standing) or warranties Section 5.2 (Authorization); and (ii) the Basket Amount shall not apply to Losses based upon, arising out of, with respect to or by reason of Seller any inaccuracy in or breach of any representation or warranty in Section 4.18(a) (Compliance with Laws; Permits) or Section 4.19 (Products).
(d) For purposes of this Article VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Post Holdings, Inc.)
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller Parties shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price [$10,000] (the "DeductibleBasket"), in which event the Indemnifying Party Seller shall only be required to pay or be liable for all such Losses in excess from the first dollar. [he aggregate amount of all Losses for which Seller shall be liable pursuant to Section 8.02(a) shall not, subject to completion of Buyer’s due diligence investigation, exceed 50% of the Deductibletotal Purchase Price, including the Closing Consideration and the Contingent Consideration if payable or thereafter (the "Cap").
(b) Buyer shall not be liable to the Seller 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 from the first dollar. The aggregate amount of all Losses for which an Indemnifying Party Buyer shall be liable pursuant to Section 6.01(a8.03(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase PriceCap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 8.04(a) Seller and Section 8.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 4.02, Section 4.07, Section 4.08, Section 4.09, Section 4.11, Section 4.18, Section 4.19, Section 4.20, Section 4.21, Section 5.01, Section 5.02 and Section 5.04.
(d) For purposes of the representations this ARTICLE VIII, any inaccuracy in or warranties breach of Seller any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Sellers and the Principals shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as related to the case may be, Non-Fundamental Reps until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) exceeds $100,000 (the "Basket”) in which event Sellers and the Principals shall be required to pay or be liable for all such Losses in excess of the Basket, provided that the aggregate amount of all Losses for which Sellers and the Principals shall be liable pursuant to Section 6.02(b), as the case may be, exceeds 1008.02(a) related to Non-Fundamental Reps shall not exceed 30% of the Purchase Price (the "DeductibleCap").
(b) Sellers and the Principals shall be liable to the Buyer Indemnitees for indemnification under Section 8.02(a) related to the Fundamental Reps and under Section 8.02(b), (c) and (d) without regard to the Basket or the Cap.
(c) Buyer shall not be liable to the Seller 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 the Indemnifying Party Buyer shall only be required to pay or be liable for all such Losses in excess of the Deductible.
(b) The Basket, provided that the aggregate amount of all Losses for which an Indemnifying Party Buyer shall be liable pursuant to Section 6.01(a8.03(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase Price.
Cap. Buyer shall be liable to the Seller Indemnitees under Section 8.02(b) and (c) 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 without regard to the breach Basket or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiplethe Cap.
(d) Seller Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in the Fundamental Reps.
(e) For purposes of the representations this Article VIII, any inaccuracy in or warranties breach of Seller any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(f) The amount, if any, in the Escrow Account shall not limit in any way Buyer's right to be indemnified pursuant to this Agreement if Buyer had knowledge of such inaccuracy or breach prior to and the ClosingTransaction Documents.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 7.02 and Section 6.02 7.03 shall be subject to the following limitations:
(a) The Indemnifying Party Vendor Parties shall not be liable to the Indemnified Party Purchaser Indemnitees for indemnification under Section 6.01(a7.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a7.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $875,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Vendor Parties shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first Dollar. The aggregate amount of all Losses for which an Indemnifying Party the Vendor Parties shall be liable pursuant to under Section 6.01(a7.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% $25,000,000 (the “Cap”).
(b) The Purchaser shall not be liable to the Vendor Indemnitees for indemnification under Section 7.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 7.03(a) exceeds the Purchase PriceBasket, in which event the Purchaser shall be required to pay or be liable for all such Losses from the first Dollar. The aggregate amount of all Losses for which Purchaser shall be liable under Section 7.03(a) shall not exceed the Cap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 7.04(a) Seller and Section 7.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 4.02, Section 4.08, Section 4.09, Section 4.21, Section 4.24, Section 5.01, Section 5.02 and Section 5.04.
(d) For the Purposes of this Article VII, any materiality, Material Adverse Effect or similar qualifier shall be disregarded (as if such qualification or standard was deleted) in calculating the representations amount of any Losses related to a breach of a representation or warranties of Seller contained in this Agreement if Buyer had knowledge of such inaccuracy or breach prior to the Closingwarranty.
Appears in 1 contract
Sources: Asset Purchase Agreement (Apogee Enterprises, Inc.)
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 10050% of the Purchase Price (the "Deductible"“Basket”), in which event the Indemnifying Party Seller shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party Seller shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as the case may be, shall not exceed 15050% of the Purchase PricePrice (the “Cap”).
(b) Buyer shall not be liable to the Seller 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 from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 8.04(a) Seller and Section 8.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 4.02, Section 4.03, Section 4.21, Section 4.22, Section 5.01, Section 5.02, Section 5.03 and Section 5.04.
(d) For purposes of this ARTICLE VIII (including for purposes of determining the representations existence of any inaccuracy in, or warranties breach of, any representation or warranty and for calculating the amount of Seller any Loss with respect thereto), any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Sources: Asset Purchase Agreement (Crown Electrokinetics Corp.)
Certain Limitations. The party making a claim under this 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 6.01 7.02 and Section 6.02 7.03 shall be subject to the following limitations:
(a) The Indemnifying Party Subject to Section 7.04(c), the aggregate amount of all Losses for which Seller Parties shall be liable pursuant to Section 7.02(a), (d) and/or (e) shall not exceed Two Million Five Hundred Thousand Dollars ($2,500,000.00)(the “Cap”).
(b) Subject to Section 7.04(c), the aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 7.03(a) shall not exceed the Indemnified Party Cap.
(c) Notwithstanding the foregoing, the limitations set forth in Section 7.04(a), Section 7.04(b), Section 7.04(d), and Section 7.04(e) shall not apply to Losses based upon, arising out of, with respect to or by reason of Fraud or any inaccuracy in or breach of any Fundamental Representation and Warranty or any representation or warranty in Section 3.19 (Environmental Matters) or Section 3.22 (Taxes).
(d) Neither Seller Parties nor Buyer shall be liable for indemnification under Section 6.01(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of to indemnification under Section 6.01(a7.02 or 7.03 exceeds Seventy-five Thousand Dollars ($75,000.00) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price (the "Deductible"“Basket”), in which event either Seller Parties or Buyer, respectively, will be required to pay or be liable for all Losses that exceed the Indemnifying Party Basket; provided, however, that the total liability shall not exceed the Cap.
(e) Seller Parties shall not be liable to Buyer for product warranty-related work (including claims for repair, replacement, rework or fine-tuning) related to Seller Products until the aggregate amount of all Losses exceeds Fifty Thousand Dollars ($50,000.00) in any twelve (12) month period following the Closing Date (pro-rated for any partial twelve (12) month period) (the “Warranty Claim Threshold”), in which event Seller Parties shall only be required to pay or be liable for such Losses in excess of the DeductibleWarranty Claim Threshold.
(bf) The aggregate For purposes of determining the amount of all Losses for to which an Indemnifying Indemnified Party shall be liable is entitled pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase Price.
(c) 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.
(d) Seller shall not be liable under this ARTICLE VI for any Losses based upon or arising out VII as a result of any an inaccuracy in or breach of a representation and warranty (but not for purposes of determining whether an inaccuracy in or breach of a representation and warranty exists), such Losses shall be determined without regard to any of the representations materiality, Material Adverse Effect or warranties of Seller other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 9.3 and Section 6.02 9.4 shall be subject to the following limitations:
(a) The Indemnifying Party Sellers shall not be liable to the Buyer Indemnified Party Parties for indemnification under Section 6.01(a9.3(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a9.3(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $250,000.00 (the "DeductibleBasket"), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of the Deductible.
(b) . The aggregate amount of all Losses for which an Indemnifying Party the Sellers shall be liable pursuant to Section 6.01(a9.3(a) or Section 6.02(a), as the case may be, shall not exceed 150% $4,200,000.00 (the "Cap").
(b) The Buyer shall not be liable to the Seller Indemnified Parties for indemnification under Section 9.4(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.4(a) exceeds the Purchase PriceBasket. The aggregate amount of all Losses for which the Buyer shall be liable pursuant to Section 9.4(a) shall not exceed the Cap.
(c) 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 Notwithstanding anything to the breach or alleged breach of contrary in this Agreement, or diminution for any indemnification claims made by any Buyer Indemnified Parties, (i) the first $2,100,000.00 in Losses shall be borne by each of value or the Individual Sellers in accordance with their Initial Pro Rata Percentage and (ii) any damages based Losses in excess of $2,100,000.00 shall be borne by each Seller in accordance with the percentages set forth on any type of multipleSchedule 3.4.
(d) Seller Notwithstanding the foregoing, the limitations set forth in Section 9.5(a) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any of the representations representation or warranties of Seller contained warranty in this Agreement if a Sellers Fundamental Representation or Buyer had knowledge of such inaccuracy or breach prior to the ClosingFundamental Representation.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Patriot National, Inc.)
Certain Limitations. The party making a claim under this 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 6.01 9.02 and Section 6.02 9.03 (and, with respect to Section 9.04(c), Section 6.03) shall be subject to the following limitationslimitations and additional provisions:
(a) The Indemnifying Party Except as set forth in Section 9.04(c), Stockholders shall not be liable to the Indemnified Party Parent Indemnitees for indemnification under Section 6.01(a9.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a9.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price an amount equal to $339,422 (the "“Deductible"”), in which event the Indemnifying Party Stockholders shall only be required to pay or be liable for all such Losses in excess of the Deductible.
(b) The . Except as set forth in Section 9.04(c), the aggregate amount of all Losses for which an Indemnifying Party Stockholders shall be liable pursuant to Section 6.01(a9.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% $6,788,433 (the “Cap”) (except for (i) any Losses related to any inaccuracy in or breach of any Fundamental Representations, which are subject to the limitation set forth in Section 9.04(c), and (ii) any Losses on the part of the Purchase PriceParent Indemnitee claiming indemnification hereunder resulting from Fraud, ▇▇▇entional misrepresentations and intentional misconduct, which shall not be subject to the Cap).
(b) Except as set forth in Section 9.04(c), Parent shall not be liable to the Stockholder Indemnitees for indemnification under Section 9.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.03(a) exceeds the Deductible, in which event Parent shall be required to pay or be liable for all such Losses in excess of the Deductible. Except as set forth in Section 9.04(c), the aggregate amount of all Losses for which Parent shall be liable pursuant to Section 9.03(a) shall not exceed the Cap (except for any Losses on the part of a Stockholder Indemnitee claiming indemnification hereunder resulting from Fraud, intentional misrepresentations and intentional misconduct, which shall not be subject to the Cap).
(c) 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 Notwithstanding anything to the breach or alleged breach of this Agreementcontrary herein, or diminution of value or any damages based on any type of multiple.
(di) Seller the limitations set forth in Section 9.04(a) and Section 9.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation, (ii) the aggregate amount of all Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation, for which Stockholders shall be liable pursuant to Section 9.02(a), or for which Parent shall be liable pursuant to Section 9.03(a), shall not exceed one hundred percent (100%) of the representations Actual Closing Merger Consideration, (iii) in no event shall the Stockholders’ liability pursuant to Article VI and this Article IX exceed the value (as if such amounts were all received as of Closing) of the Actual Closing Merger Consideration that the Stockholders actually receive, and (iv) in no event shall any Stockholder’s liability pursuant to Article VI or warranties this Article IX exceed the value (as if such amounts were all received as of Seller Closing) of its Pro Rata Share of the Actual Closing Merger Consideration that such Stockholder actually received.
(d) Notwithstanding anything to the contrary elsewhere in this Agreement, for purposes of calculating the amount of any Losses with respect to any inaccuracy in or breach of any representation or warranty related to Arches, the amount of such Losses shall first be multiplied by the Company Percentage before determining what amounts are otherwise indemnifiable pursuant to Section 9.02, which resulting amounts shall remain subject to the other limitations set forth in this Section 9.04.
(e) For purposes of this Section 9.04, in determining the existence of an inaccuracy in or a breach of any representation or warranty and for purposes of calculating the amount of any Losses with respect to any inaccuracy in or breach of any representation or warranty, the amount of such Losses shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(f) Any indemnification payment required under this Article IX shall be adjusted for the amount of any Losses that are actually recovered from any insurance proceeds (net of cost of enforcement and collection of insurance proceeds and deductibles and increases in insurance premiums) and any indemnity, contribution or similar payment received by the Indemnified Party in respect of any such Losses. Each party shall use commercially reasonable efforts to assert a claim where coverage for such claim may be available pursuant to applicable existing insurance policies; provided, that neither Parent Indemnitees nor Stockholder Indemnitees will have any obligation to have any claims under such insurance policies finally resolved prior to making a claim for indemnification hereunder.
(g) No party shall be entitled to (i) double recovery for any indemnifiable Losses even though such Losses may have resulted from the breach of more than one of the representations, warranties, agreements and covenants in this Agreement if Buyer had knowledge of such inaccuracy or breach prior (ii) recover any Losses with respect to Excluded Taxes or, without duplication, any amounts to the Closingextent such amounts were treated as liabilities or were otherwise specifically taken into account in computing the Total Merger Consideration.
(h) Nothing in this Agreement is intended to limit any obligation under applicable Law with respect to mitigation of damages.
Appears in 1 contract
Sources: Merger Agreement (Vireo Growth Inc.)
Certain Limitations. The party making a claim under this 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 6.01 8.2 and Section 6.02 8.3 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.2(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.1, Section 4.2, Section 4.3, Section 4.9, Section 4.11 and Section 6.02(a4.12 (the “Buyer Basket Exclusions”), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.2(a) (other than those based upon, arising out of, with respect to or Section 6.02(b), as by reason of the case may be, Buyer Basket Exclusions) exceeds 100.5% of the Purchase Price (the "Deductible")Price, in which event the Indemnifying Party Seller shall only be required to pay or be liable for all such Losses in excess of from the Deductiblefirst dollar.
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase Price.
(c) 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.
(d) Seller Buyer shall not be liable to the Seller Indemnitees for indemnification under this ARTICLE VI Section 8.3(a) (other than with respect to a claim for any Losses indemnification based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 5.1, Section 5.2 and Section 5.3 (the “Seller Basket Exclusions”)) until the aggregate amount of all Losses in respect of indemnification under Section 8.3(a) (other than those based upon, arising out of, with respect to or by reason of the representations Seller Basket Exclusions) exceeds .5% of the Purchase Price, in which event Buyer shall be required to pay or warranties be liable for all such Losses from the first dollar.
(c) For purposes of Seller this Article VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Stockholders collectively shall not be liable to the Indemnified Party Parent Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $50,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Stockholders shall only be required to pay or be liable for all such Losses from the first dollar in excess of the Deductible.
(b) Basket subject to the further limitations set forth herein. The aggregate amount of all Losses for which an Indemnifying Party Stockholders shall be liable pursuant to Section 6.01(a8.02(a) shall not exceed the dollar amount equal to the product of 445,000 multiplied by the Share Price (the “Cap”). If the amount of Escrow Cash then remaining in the Indemnification Escrow Fund is insufficient to satisfy a claim for indemnification under Section 8.02(a) or Section 6.02(a6.09, the Stockholders may satisfy those indemnity obligations by either delivering cash or by delivering Parent Shares (valued at the Share Price for such purpose).
(b) Parent shall not be liable to the Stockholder 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, as in which event Parent shall be required to pay or be liable for all such Losses from the case may be, first dollar in excess of the Basket. The aggregate amount of all Losses for which Parent shall be liable pursuant to Section 8.03(a) shall not exceed 150% of the Purchase PriceCap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 8.04(a) Seller and Section 8.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation. The aggregate amount of all Losses for which Stockholders shall be liable pursuant to Section 8.02(a) for breaches of or inaccuracies in (i) Fundamental Representations shall not exceed an amount equal to (x) the product of (I) the number of Parent Shares comprising the Base Purchase Price multiplied by (II) the Share Price, minus (y) the Estimated Closing Adjustment, if any, and the Post-Closing Adjustment, if any, plus (z) the True-Up Adjustment, if any, and (ii) representations and warranties of the representations Company in Section 3.18 related to compliance with laws related to the development, marketing, or warranties sales of Seller cannabinoid products, when combined with any amounts paid under Section 8.04(a) shall not exceed the Cap.
(d) For purposes of this Article VIII, any inaccuracy in or breach of any representation or warranty or the calculation of any Losses related thereto shall 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) The aggregate amount of Losses for which any Stockholder shall be liable pursuant to Section 6.03 and Section 8.02 shall not exceed the Merger Consideration actually received by such Stockholder.
(f) The limitations in Section 8.04(a), Section 8.04(c) and Section 8.04(e) shall not apply to (i) any Founding Stockholder, Founder, Company officer, Company employee or former Company employee with respect to Losses incurred as a result of fraud committed by any Founding Stockholder, Founder, Company officer, Company employee or former Company employee or (ii) any other Stockholder, Optionholder or Convertible Noteholder with respect to Losses incurred as a result of fraud committed by such Person.
(g) The Losses of an Indemnified Party shall be adjusted to give credit for any insurance recovery paid with respect to the matter to which the indemnification claim relates, net of deductibles paid and the portion of any increase in premiums for such insurance policies directly and solely resulting from such matter as determined in good faith and set forth in writing by the Indemnified Party’s insurance broker.
(h) If an Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses pursuant to this Agreement if Buyer had knowledge Article VIII and the Indemnified Party could have recovered all or a part of such inaccuracy or breach prior Losses from a third party insurance company (a “Potential Contributor”) based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall, upon written request from the Stockholder Representative, assign such of its rights to proceed against the ClosingPotential Contributor as are necessary to permit the Indemnifying Party to seek recovery from the Potential Contributor the amount of such payment.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (InMed Pharmaceuticals Inc.)
Certain Limitations. The party making a claim under this 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 6.01 12(b) and Section 6.02 12(c) shall be subject to the following limitations:
(ai) The Indemnifying Party Buyer Indemnified Parties shall not be entitled to indemnification under Section 12(b)(i) based upon, arising out of, attributable to any inaccuracy in or breach of the General Representations until the aggregate amount of all Losses with respect to such General Representations exceeds an amount equal to $859,000.00 (the “Basket”), in which event the Buyer Indemnified Parties shall be entitled to indemnification for such Losses in excess of the Basket, subject to the other limitations set forth herein. Notwithstanding the foregoing, the aggregate amount of all Losses for which the Buyer Indemnified Parties are entitled pursuant to Section 12(b)(i) based upon, arising out of, attributable to any inaccuracy in or breach of:
(A) the General Representations and Special Representations shall not exceed the Retention Escrow Amount (the “General Cap”); and
(B) the General Representations, the Special Representations and the Fundamental Representations shall not exceed $5,000,000.00 (the “Overall Cap”).
(ii) Parent and Surviving Entity shall not be liable to the Target Indemnified Party Parties for indemnification under Section 6.01(a12(c)(i) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a12(c)(i) or Section 6.02(b), as exceeds the case may be, exceeds 100% of the Purchase Price (the "Deductible")Basket, in which event the Indemnifying Party Parent and Surviving Entity shall only be required to pay or be liable for all such Losses in excess of the Deductible.
(b) The Basket, subject to the other limitations set forth herein. Notwithstanding the foregoing, the aggregate amount of all Losses for which an Indemnifying Party Parent and Surviving Entity shall be liable liable, collectively, pursuant to Section 6.01(a12(c)(i) based upon, arising out of, attributable to any inaccuracy in or Section 6.02(a), as breach of:
(A) the case may be, Parent General Representations shall not exceed 150% of the Purchase PriceGeneral Cap;
(B) the Parent General Representations and Parent Fundamental Representations shall not exceed $27,500,000.00.
(ciii) In no event For avoidance of doubt, the limitations with respect to the Basket and the General Cap shall any Indemnifying Party be liable not apply to any Indemnified Party for any punitiveLosses based upon, incidental, consequential, specialarising out of, or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating attributable to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple.
(d) 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 Fundamental Representation or Parent Fundamental Representation.
(iv) For purposes of this Section 12, any inaccuracy in or breach of any representation or warranty (other than those in Section 3(cc), and the determination of any Losses with respect thereto, shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(v) The recovery by the Buyer Indemnified Parties under this Section 12 shall be net of any reimbursement actually received from any insurance carrier (other than the insurer providing the R&W Insurance Policy) or other third person (net of increased premiums and costs reasonably incurred by the Buyer Indemnified Parties in seeking or obtaining such reimbursement), in either case, in connection with the Losses that form the basis of the representations or warranties of Seller contained in Buyer Indemnified Party’s claim for indemnification hereunder.
(vi) No Buyer Indemnified Party shall be entitled to recover under this Agreement if Buyer had knowledge of such inaccuracy or breach prior Section 12 to the Closingextent the matter in question was addressed in the prorations and adjustments set forth in Section 9(a).
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 9.02 and Section 6.02 9.03 shall be subject to the following limitations:
(a) The Indemnifying Party Shareholders Indemnitors shall not be liable to the Indemnified Party Reliability Indemnitees for indemnification under Section 6.01(a9.02 (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any of Maslow Surviving Representations (the “Reliability’s Basket Exclusions”)) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a9.02 (other than those based upon, arising out of, with respect to or by reason of Reliability’s Basket Exclusions) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $100,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Shareholders shall only be required to pay or be liable for all such Losses in excess of the DeductibleBasket.
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase Price.
(c) 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.
(d) Seller M▇. ▇▇▇▇▇▇▇▇ shall not be liable to the Shareholders Indemnitees for indemnification under this ARTICLE VI Section 9.03 (other than with respect to a claim for any Losses indemnification based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any of Reliability’s Surviving Representations (the representations “Shareholders’ Basket Exclusions”)) until the aggregate amount of all Losses in respect of indemnification under Section 9.03(a) (other than those based upon, arising out of, with respect to or warranties by reason of Seller contained the Shareholders’ Basket Exclusions) exceeds the Basket, in which event M▇. ▇▇▇▇▇▇▇▇ shall be required to pay or be liable for all such Losses in excess of the Basket.
(c) The Parties acknowledge and agree that the maximum liability of Shareholders Indemnitors, on the one hand, and M▇. ▇▇▇▇▇▇▇▇, on the other hand, for indemnification pursuant to this Agreement Article IX shall be the sum of $1,000,000 (the “Cap”), and neither M▇. ▇▇▇▇▇▇▇▇, on the one hand, nor the Shareholders, on the other hand, shall have any liability to the other in excess of the Cap.
(d) All liabilities and obligations of Shareholders Indemnitors that may arise under Section 9.02 (“Shareholders Indemnification Liabilities”), if Buyer had knowledge any, will be satisfied only out of Merger Consideration received by the Shareholders; and Shareholders Indemnitors will be liable to return, transfer, and assign to Reliability, irrevocably, that number of shares of Reliability Common Stock included in the Merger Consideration, valued at the Reliability Common Stock Value as of the date of the final resolution of such inaccuracy indemnification obligations, as is equal in value to such Shareholders Indemnification Liabilities then being paid and such return, transfer, and assignment will be deemed in full payment and satisfaction of the Shareholders Indemnification Liabilities with respect to which payment is being made, provided, however, that in the event that the Shareholders do not hold sufficient shares of Reliability Common Stock as required to be able to return a sufficient number of shares hereunder as required to satisfy the Shareholders Indemnification Liabilities, the portion (or breach prior all, if applicable) of the Shareholders Indemnification Liabilities not able to be paid by a return of such shares of Reliability Common Stock shall be paid by Shareholders Indemnitors in cash.
(e) All liabilities and obligations of the M▇. ▇▇▇▇▇▇▇▇ that may arise under Section 9.03 (“E▇▇▇▇▇▇▇ Indemnification Liabilities”), if any, will be satisfied only shares of Reliability Common Stock held by the M▇. ▇▇▇▇▇▇▇▇ as of the Closing Date; and M▇. ▇▇▇▇▇▇▇▇ shall transfer, and assign to the Shareholders (pro rata based on the amount of Merger Consideration received by each Shareholder at the Closing), irrevocably, that number of shares of Reliability Common Stock valued at the Reliability Common Stock Value as of the date of the final resolution of such indemnification obligations, as is equal in value to the amount of the E▇▇▇▇▇▇▇ Indemnification Liabilities and such transfer, and assignment will be deemed in full payment and satisfaction of the E▇▇▇▇▇▇▇ Indemnification Liabilities with respect to which payment is being made, provided, however, that in the event that M▇. ▇▇▇▇▇▇▇▇ does not hold sufficient shares of Reliability Common Stock as required to be able to return a sufficient number of shares hereunder as required to satisfy the E▇▇▇▇▇▇▇ Indemnification Liabilities, the portion (or all, if applicable) of the E▇▇▇▇▇▇▇ Indemnification Liabilities not able to be paid by a return of such shares of Reliability Common Stock shall be paid by M▇. ▇▇▇▇▇▇▇▇ in cash.
Appears in 1 contract
Sources: Merger Agreement (Reliability Inc)
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% $25,000 of the Purchase Price (the "Deductible"“Basket”), in which event the Indemnifying Party Seller shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party Seller shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% $800,000 of the Purchase PricePrice (the “Cap”).
(b) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses in respect of indemnification under this Section exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to this Section shall not exceed the Cap.
(c) 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 Notwithstanding the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple.
(dforegoing limitations set forth in Section 8.04(a) Seller and Section 8.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 3.01, Section 3.03, Section 3.19, Section 3.20, Section 3.24, Section Section 4.01 and Section 4.04.
(d) For purposes of the representations this ARTICLE VIII, any inaccuracy in or warranties breach of Seller any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 Notwithstanding anything in Section 6.01 and Section 6.02 shall be subject 2 hereof to the following limitationscontrary:
(a) The Indemnifying Party the Guarantor shall not be liable required by this Guaranty to perform any Guarantied Obligation or undertaking if the Indemnified Party for indemnification performance thereof is illegal or impossible under Section 6.01(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price (the "Deductible"), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of the Deductible.Law;
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, Guarantor shall not exceed 150% be required to perform any Guarantied Obligation while the performance of such Guarantied Obligation is being disputed in good faith by the Purchase Price.Person required to perform such Guarantied Obligation;
(c) In no event shall any Indemnifying Party be liable the Guarantor’s liability hereunder with respect to any Indemnified Party for any punitiveGuarantied Obligation shall not exceed the liability of the Class B Member with respect to such Guarantied Obligation, incidentalwith reference specifically, consequentialbut without limitation, special, or indirect damages, including loss to Section 6.2 of future revenue or income, loss the ECCA and Section 11.02 of business reputation or opportunity relating to the breach or alleged breach of this LLC Agreement, or diminution of value or any damages based on any type of multiple.;
(d) Seller the Guarantor shall have no liability hereunder with respect to any action or inaction of the Managing Member or Partnership Representative or any breach or noncompliance by the Managing Member or Partnership Representative with any of the Guarantied Obligations, if the Class B Member (or any successor Managing Member or Member that is an Affiliate of the Guarantor) was not, at the time of such action, inaction, breach or noncompliance the Managing Member or Partnership Representative, as applicable;
(e) other than (i) with respect to the representations and warranties in Section 3.27 of the ECCA that are made on the Funding Date, any indemnification obligations with respect to or resulting from any breach that relates to a title defect arising after the Execution Date and (ii) with respect to the representations and warranties in Section 3.27 of the ECCA that are made on the Execution Date, any indemnification obligations with respect to or resulting from any breach that relates to a title defect of which the Class B Member or any of its Affiliates (provided, that solely for purposes of this clause (ii), the term “Affiliate” shall not include clause (i) of the first proviso of the definition thereof to the extent that any entity excluded from the definition of Affiliates in such clause (i) directly or indirectly controls the Class B Member, the Project Company or the Company) had knowledge on the Execution Date, the Guarantor’s aggregate liability hereunder shall not exceed $199,742,872.60 plus all Additional Capital Contributions (as defined in the LLC Agreement) made by the Class A Members 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 or by the Indemnitor under the Indemnity Agreement less all Additional Capital Contributions made by the Class B Members (as defined in 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) other than (i) with respect to the representations and warranties in Section 3.27 of the ECCA that are made on the Funding Date, any indemnification obligations with respect to or resulting from any breach that relates to a title defect arising after the Execution Date and (ii) with respect to the representations and warranties in Section 3.27 of the ECCA that are made on the Execution Date, any indemnification obligations with respect to or resulting from any breach that relates to a title defect of which the Class B Member or any of its Affiliates (provided, that solely for purposes of this clause (ii), the term “Affiliate” shall not include clause (i) of the first proviso of the definition thereof to the extent that any entity excluded from the definition of Affiliates in such clause (i) directly or indirectly controls the Class B Member, the Project Company or the Company) had knowledge on the Execution Date, the aggregate liability from time to time of the Guarantor hereunder, of the Indemnitor under the Indemnity Agreement, and of the indemnifying parties under Article 6 of the ECCA and under Article 11 of the LLC Agreement shall not exceed (i) 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 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 determining Guarantor’s maximum liability pursuant to this Section 6(f), all payments pursuant to this Guaranty shall be deemed to 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 any Beneficiary prior to the Flip Point shall not have been finally resolved or (y) any Tax contest or dispute applicable to a taxable period prior to the 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 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 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 had knowledge of such inaccuracy or breach prior subject to the Closinglimitations described in clause (ii) until the Flip Point occurs.
Appears in 1 contract
Sources: Guaranty (Pattern Energy Group Inc.)
Certain Limitations. The party making a claim under this 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 6.01 and Section 6.02 shall be subject to the following limitations:
(a) The Indemnifying Party shall not be liable Notwithstanding anything contained herein to the contrary, the maximum aggregate liability of ITT to all Purchaser Indemnified Party Parties taken together for indemnification all Purchaser Losses (i) under Section 6.01(a9.1(a)(i) by Purchaser Indemnified Parties shall be limited to a maximum of 20% of the Purchase Price, with the exception of breaches of Sections 4.2 and Section 6.02(a)4.3, as with respect to which the case may be, until maximum aggregate liability of ITT for all Purchaser Losses shall be limited to the aggregate amount of all Losses in respect of indemnification Purchase Price and (ii) under Section 6.01(a9.1(a)(viii) or Section 6.02(b), as the case may be, exceeds 100by Purchaser Indemnified Parties shall be limited to a maximum of 20% of the Purchase Price (separate and distinct from the "Deductible"), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess 20% of the DeductiblePurchase Price referred to in the foregoing subsection (i)).
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant Notwithstanding anything contained herein to Section 6.01(a) or Section 6.02(a)the contrary, as the case may be, ITT shall not be obligated to make any indemnification payment under Section 9.1(a)(i) unless and until the aggregate Purchaser Losses sustained by Purchaser Indemnified Parties collectively thereunder exceed 1501% of the Purchase Price, and then any indemnification with respect to Purchaser Losses shall be made by ITT only to the extent of such excess over such 1%; provided, however, that the foregoing shall not apply in the case of Purchaser Losses arising out of or relating to any representation or warranty set forth in Sections 4.2 and 4.3.
(ci) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special, or indirect damages, including loss The representations and warranties of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach ITT contained in Sections 4.2 and 4.3 of this AgreementAgreement shall survive the Closing indefinitely, or diminution (ii) the representations and warranties of value or any damages based on any type ITT contained in Sections 4.12(f), 4.12(g), 4.12(k) and 4.12(o) of multiplethis Agreement shall survive the Closing until the expiration of the applicable statute of limitations in respect of such tax matters, (iii) the representations and warranties of ITT contained in Section 4.12 (except for the representations and warranties in Sections 4.12(f), 4.12(g), 4.12(k) and 4.12(o)) and Section 4.16 shall not survive the Closing and (iv) all other representations and warranties of the parties contained in this Agreement shall survive the Closing until the date that is 18 months after the Closing Date. Any claim for indemnification under Sections 9.1(a)(vi), 9.1(a)(vii) and 9.1(a)(viii) must be asserted before the seventh anniversary of the Closing Date, after which no claims may be asserted under Sections 9.1(a)(vi), 9.1(a)(vii) and 9.1(a)(viii).
(d) Seller ITT shall not be liable obligated to make any indemnification payment under this ARTICLE VI Section 9.1(a)(vi) unless and until such time as the aggregate Purchaser Losses incurred by Purchaser Indemnified Parties as a result of any single or aggregated Warranty Claims arising out of the same or series of related facts, events or circumstances exceeds $500,000 (the "Warranty Deductible"), and then any indemnification with respect to Purchaser Losses shall be made with respect to 50% of all Purchaser Losses incurred as a result of such single or aggregated Warranty Claims arising out of the same or series of related facts, events or circumstances in excess of the Warranty Deductible.
(i) ITT shall not be obligated to make any indemnification payment under Section 9.1(a)(vii) unless and until such time as the aggregate Purchaser Losses incurred by Purchaser Indemnified Parties as a result of any such Recall exceeds $500,000 (the "Recall Deductible"), and then any indemnification with respect to Purchaser Losses shall be made with respect to 80% of all Purchaser Losses incurred as a result of such Recall in excess of the Recall Deductible.
(ii) In connection with any Recall that exceeds the Recall Deductible, ITT shall be entitled to participate (to the extent that Purchaser has the right to participate) in the discussions, negotiations and proceedings conducted in connection with such Recall. Purchaser shall permit ITT to investigate such Recall, including, (A) to discuss the Recall with such officers, employees, consultants and representatives of the Business as ITT reasonably requests, (B) to have reasonable access to the properties, books, records, papers, documents, plans and drawings of the Business at reasonable hours to review information and documentation relative to the properties, books, contracts, commitments and other records of the Business, and (C) to conduct such investigations and studies as are reasonably necessary in connection with such investigation within reasonable parameters approved by Purchaser (which approval will not be unreasonably withheld); provided that any such investigation shall only be upon reasonable notice, shall not unreasonably disrupt personnel and operations of the Business and shall be at ITT's sole expense. All requests for access to the offices, properties, books and records of Purchaser and the Business shall be made to such representatives of Purchaser as Purchaser shall designate, who shall be solely responsible for coordinating all such requests and all access permitted hereunder. It is further agreed that neither ITT nor its representatives shall contact any of the employees, customers, suppliers, or other Subsidiaries or Affiliates of the Business in connection with any Recall, whether in person or by telephone, mail or other means of communication, without the specific prior authorization of such representatives of Purchaser (which shall not be unreasonably withheld or delayed). Neither party shall enter into any agreement or settlement, or consent to the entry of any judgment, in connection with any Recall without obtaining the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, taking into account all of the surrounding circumstances (including the Purchaser Losses involved and the effect of such agreement, settlement, consent or judgment on the Business and the relationship between Purchaser and its Affiliates and their customers). ITT shall not be obligated to indemnify any Purchaser Indemnified Party for any settlement relating to a Recall entered into by or with the consent of Purchaser if such settlement was entered into without ITT's prior written consent.
(iii) Promptly after the receipt by any Purchaser Indemnified Party of any inquiry from NHTSA or any other Governmental Authority with respect to any product sold prior to Closing by an FHS Company or Asset Seller in respect of the Business, whether such inquiry comes directly from such Governmental Authority or is forwarded by any customer, such Purchaser Indemnified Party shall give written notice thereof to ITT, stating the nature and basis of the inquiry and the relevant details thereof, to the extent known, along with copies of the relevant documents evidencing the inquiry, and such Purchaser Indemnified Party shall continue to provide ITT with copies of any ongoing correspondence with respect to such inquiry. Failure of any Purchaser Indemnified Party to give such notice shall not relieve ITT from liability on account of this indemnification, except if and to the extent that ITT is actually prejudiced thereby.
(f) Claims for Purchaser Losses based upon or ITT Losses caused by or arising out of any inaccuracy in misrepresentation or breach of warranty or breach of covenant or agreement may be made only pursuant to Article IX hereof. The obligations to indemnify and hold harmless a party hereto pursuant to this Article IX shall terminate when the applicable representation, warranty, covenant or agreement terminates pursuant to Section 9.2(c); provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the person to be indemnified shall have, before the expiration of the applicable period, previously made a claim by delivering a notice to the indemnifying party hereunder (the "Indemnifying Party") stating in reasonable detail the nature and basis of the claim and the amount thereof, to the extent known, along with copies of the relevant documents evidencing the claim and the basis for indemnification sought. Any person seeking indemnification under this Agreement shall give notice of any claim for indemnification under this Agreement promptly after such person determines the claim could give rise to a right of indemnification under this Agreement. The notice shall comply with Section 9.3 in the case of a third-party claim.
(g) No Indemnified Party shall be entitled to indemnification pursuant to this Article IX for lost profits or consequential or punitive damages, except to the extent necessary to reimburse an Indemnified Party for judgments actually awarded to third parties in respect of such types of damages.
(h) No indemnification claim under this Agreement may be asserted or pursued against any Seller by any FHS Company or any entity that is a Subsidiary as of the Closing Date if such FHS Company or entity shall cease to be controlled by Purchaser or any of its Affiliates (other than the representations FHS Companies) (a "Sold Entity"); provided, however, that the foregoing clause shall in no way limit Purchaser's right to indemnification under this Agreement, including for Purchaser Losses resulting from claims by any Sold Entity or warranties of Seller contained in this Agreement if Buyer had knowledge of such inaccuracy its Affiliates, successors or breach prior to the Closingassigns, against Purchaser.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Cooper-Standard Holdings Inc.)
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price One Hundred Fifty Thousand Dollars ($150,000) (the "DeductibleBasket"), in which event the Indemnifying Party Seller shall only be required to pay or be liable for Losses in excess of the Deductible.
(b) Basket. The aggregate amount of all Losses for which an Indemnifying Party Seller shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% the sum of the Holdback Fund plus any Earn-out Payment (the "Cap"), and for Losses in respect of indemnification under Section 4.19, the aggregate amount of such Losses for which Seller shall be liable under Section 4.19 shall not exceed the Purchase Price.
(cb) 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.
(d) Seller Buyer shall not be liable to the Seller Indemnitees for indemnification under this ARTICLE VI 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 only be required to pay or be liable for any Losses in excess of the Basket. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.
(c) Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) shall not apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any of the representations Fundamental Representation or warranties any Claim involving fraud, willful misconduct or criminal acts of Seller contained in this Agreement if Buyer had knowledge of such inaccuracy or breach prior to the Closingany its Affiliates or Representatives.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 7.02 and Section 6.02 7.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a7.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a7.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $25,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Seller shall only be required to pay or be liable for such Losses in excess of the Deductible.
(b) Basket. The aggregate amount of all Losses for which an Indemnifying Party Seller shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% $750,000 (the “Cap”).
(b) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 7.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 7.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for such Losses in excess of the Purchase PriceBasket. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 7.03(a) shall not exceed the Cap.
(c) 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 For purposes of this AgreementArticle VII, or diminution of value or any damages based on any type of multiple.
(d) 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 representation or warranties of Seller warranty shall 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 pursuant to Section 7.02 or Section 7.03 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 actually received by the Indemnified 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 insurance premiums or other chargebacks (it being agreed that neither party shall have any obligation to seek to recover any insurance proceeds prior to making a claim under this Agreement if Buyer had knowledge Article VIII 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 inaccuracy or breach reduction in Losses for which the Indemnified Party was indemnified prior to the Closingrealization of reduction of such Losses).
(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 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 Loss.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 7.02 and Section 6.02 7.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller Parties shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a7.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a7.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $50,000 (the "Deductible"“Basket”), in which event all such Losses from the Indemnifying Party first dollar shall only be due to Buyer; provided that the Basket shall not apply to Losses arising from the breach of any Seller’s Fundamental Representation or fraud. The aggregate amount of all Losses for which the Seller Parties shall be liable pursuant to Section 7.02(a) shall not exceed $1,500,000 (the “Cap”); provided that the Cap shall not apply to Losses arising from the breach of any Seller’s Fundamental Representation or fraud.
(b) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 7.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 7.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party Buyer shall be liable pursuant to Section 6.01(a7.03(a) or Section 6.02(a), as the case may be, shall not exceed 150% the Cap; provided that the Cap and Basket shall not apply to Losses arising from the breach of the Purchase Priceany Buyer’s Fundamental Representation or fraud.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 7.04(a) Seller and Section 7.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any of the representations representation or warranties of Seller contained warranty in this Agreement if Buyer had knowledge of such inaccuracy or breach prior to the ClosingSection 4.18, Section 4.19, Section 4.21, Section 4.22.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller Parent shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of (i) any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 4.02, Section 4.08, Section 4.09, Section 4.17, Section 4.18, Section 4.20 and Section 4.23 or (ii) any breach of any Seller’s representation or warranty made with the intent to mislead or defraud any Buyer (items (i) and Section 6.02(a), (ii) are collectively referred to herein as the case may be“Buyer Basket Exclusions”), until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) (other than those based upon, arising out of, with respect to or Section 6.02(b), as the case may be, exceeds 100% by reason of the Purchase Price (the "Deductible")Buyer Basket Exclusions) exceeds [*], in which event the Indemnifying Party Seller Parent shall only be required to pay or be liable for such Losses in excess of the Deductiblesuch amount.
(b) Buyer Parent shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of (i) any inaccuracy in or breach of any representation or warranty in Section 5.01 and Section 5.02 or (ii) any breach of any Buyer’s representation or warranty made with the intent to mislead or defraud any Seller (items (i) and (ii) are collectively referred to herein as the “Seller Basket Exclusions”) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) (other than those based upon, arising out of, with respect to or by reason of the Seller Basket Exclusions) exceeds [*], in which event Buyer Parent shall be only required to pay or be liable for such Losses in excess of such amount.
(c) With respect to any claims which the Buyer Indemnitees may be entitled to indemnification under Section 8.02(a), Seller Parent shall not be liable for any individual or series of related Losses which do not exceed [*] (which Losses shall not be counted towards the other limit in this Section 8.04(a)).
(d) With respect to any claims as to which the Seller Indemnitees may be entitled to indemnification under Section 8.03(a), Buyer Parent shall not be liable for any individual or series of related Losses which do not exceed [*] (which Losses shall not be counted towards the other limit in this Section 8.04(b)).
(e) The aggregate amount of all Losses for which an Indemnifying Party Seller Parent shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as (other than the case may be, Buyer Basket Exclusions) shall not exceed 150% of the Purchase Price[*].
(cf) In no event The aggregate amount of all Losses for which Buyer Parent shall any Indemnifying Party be liable pursuant 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 Section 8.03(a) (other than the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multipleSeller Basket Exclusions) shall not exceed [*].
(dg) Seller shall not be liable The amount of any and all Losses under this ARTICLE VI for any Losses based upon or arising out Article VIII will be determined net of any inaccuracy in amounts recovered by an Indemnified Party or breach of its Affiliates under or pursuant to any of the representations insurance policy, title insurance policy, indemnity, reimbursement arrangement or warranties of Seller contained in this Agreement if Buyer had knowledge of contract pursuant to which or under which such inaccuracy Indemnified Party or breach prior to the ClosingAffiliate is a party or has rights.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 9.2 and Section 6.02 9.3 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a9.2(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 3.1, Section 3.2, Section 3.3, Section 3.4, Section 3.19, Section 3.21(e), Section 3.23, Section 3.24 and Section 6.02(a3.26 (the “Buyer Basket and Cap Exclusions”), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a9.2(a) (other than those based upon, arising out of, with respect to or Section 6.02(b), as the case may be, exceeds 100% by reason of the Purchase Price Buyer Basket and Cap Exclusions, for which Seller shall be liable for all Losses, subject to the balance of the limitations set forth herein) exceeds $1,000,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Seller shall only be required to pay or be liable for the Losses in excess of the Deductible.
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant Basket in accordance with this Article IX. Moreover, if Buyer fails to Section 6.01(a) or Section 6.02(a), as the case may be, shall not exceed 150% obtain any of the Purchase Price.
(c) In no event estoppel certificates referenced in Section 6.12, Buyer Basket and Cap Exclusions shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, specialalso include Losses incurred or sustained by, or indirect damagesimposed upon, including loss of future revenue or incomethe Buyer Indemnitees based upon, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreementarising out of, with respect to, or diminution of value or any damages based on any type of multiple.
(d) Seller shall not be liable under this ARTICLE VI for any Losses based upon or arising out by reason of any inaccuracy in or breach of any representation or warranty in Section 3.9 or Section 3.10 that would have been cured or waived by the applicable landlord’s execution of such estoppel certificate.
(b) Neither Buyer nor Innospec shall be liable to the Seller Indemnitees for indemnification under Section 9.3(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.1, Section 4.4, Section 5.1 and Section 5.5 (the “Seller Basket and Cap Exclusions”), until the aggregate amount of all Losses in respect of indemnification under Section 9.3(a) (other than those based upon, arising out of, with respect to or by reason of the representations Seller Basket and Cap Exclusions, for which Buyer and Innospec shall be jointly and severally liable for all Losses, subject to the balance of the limitations set forth herein) exceeds the Basket, in which event Buyer and Innospec, jointly and severally, shall be required to pay or warranties be liable for the Losses in excess of the Basket in accordance with this Article IX.
(c) Seller shall not be liable to the Buyer Indemnitees for indemnification under Section 9.2(a) for any Losses in excess of an amount equal to the Cap Amount; provided, that, notwithstanding the foregoing, the Cap Amount shall not apply to, or take account of, any Losses based upon, arising out of, with respect to or by reason of the Buyer Basket and Cap Exclusions, breaches of Article VI, or any fraud. Notwithstanding anything in this Agreement, in no event shall the aggregate indemnification to be paid by Seller under this Article IX exceed the Purchase Price.
(d) Neither Buyer nor Innospec shall be liable to the Seller Indemnitees for indemnification under Section 9.3(a) for any Losses in excess of an amount equal to the Cap Amount; provided, that, notwithstanding the foregoing, the Cap Amount shall not apply to, or take account of, any Losses based upon, arising out of, with respect to or by reason of the Seller Basket and Cap Exclusions, breaches of Article VI, or any fraud.
(e) The amount of any Losses for which indemnification is provided under this Article IX shall be net of any amounts actually recovered by the indemnified party under insurance policies or otherwise from a third party with respect to such Losses (net of any Tax or expenses incurred in connection with such recovery, and net of any increased insurance premiums to be incurred as a consequence of such recovery). Buyer shall use its commercially reasonable efforts to recover under insurance policies for any Losses prior to seeking indemnification under this Agreement.
(f) Seller shall have no liability to indemnify with respect to any Losses in respect of any matter that is taken into account in the calculation of any adjustment to the Purchase Price pursuant to Article II.
(g) For purposes of this Article IX, (i) any inaccuracy in or breach of any representation, warranty, covenant, or agreement shall be determined without regard to any knowledge (including the defined terms “Seller Knowledge” and “Knowledge of Seller”), materiality, Company Material Adverse Effect, Buyer Material Adverse Effect or other similar qualification contained in this Agreement or otherwise applicable to such representation or warranty, and (ii) in such case, each such representation, warranty, covenant or agreement shall be read as if Buyer had knowledge of all such inaccuracy or breach prior qualifications were omitted therefrom. Notwithstanding the foregoing, the preceding sentence shall not apply to the Closing“Seller Knowledge” or “Knowledge of Seller” qualifiers in Section 3.9, the last sentence of Section 3.10(b), the last sentence of Section 3.12(e), Section 3.15, Section 3.17(a), Section 3.18, Section 3.20(h), Section 3.21(b), the second to last sentence of Section 3.21(c), and Section 3.23.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Innospec Inc.)
Certain Limitations. The party making a claim under Notwithstanding any provision of this 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 6.01 and Section 6.02 shall be subject Agreement to the following limitationscontrary and except for fraud or as set forth below:
(a) The Indemnifying Party the maximum aggregate liability of Seller pursuant to the indemnification obligations under Section 10.2 shall not be liable to the Indemnified Party for indemnification under Section 6.01(a) and Section 6.02(aexceed Thirteen Million Seven Hundred Fifty Thousand Dollars ($13,750,000.00), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price (the "Deductible"), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of the Deductible.;
(b) The the maximum aggregate amount liability of all Losses for which an Indemnifying Party shall be liable Lynch Interactive Corporation pursuant to the indemnification obli▇▇▇▇▇ns under Section 6.01(a) or Section 6.02(a), as the case may be, 10.2 shall not exceed 150% the greater of (x) Eight Million Dollars ($8,000,000.00) or (y) the Purchase Price.Price paid to Lynch Interactive Corporation as a result of any redemption, dis▇▇▇▇▇tion, dissolution or liquidation of or transaction with Seller;
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, special, or indirect damages, including loss the maximum aggregate liability of future revenue or income, loss of business reputation or opportunity relating Fortunet Wireless Communication Corporation pursuant to the breach indemnification obligations under Section 10.2 shall not exceed the greater of (x) Six Hundred Thousand Dollars ($600,000.00) or alleged (y) the Purchase Price paid to to Fortunet Wireless Communication Corporation as a result of any redemption, distribution, dissolution or liquidation of or transaction with Seller;
(d) the maximum aggregate liability of Buyer pursuant to the indemnification obligations under Section 10.3 shall not exceed Eight Million Six Hundred Thousand Dollars ($8,600,000.00);
(e) the indemnification rights in this Article X shall expire: (i) at the end of the survival period set forth in Section 10.1, (ii) with respect to the matters set forth in Section 10.2(b) ninety (90) days after Buyer receives written notice from Seller of both (x) a final, nonappealable order, and (y) confirmation by Seller and/or Stockholders of payment of any amounts that may be payable by Seller and/or the Stockholders with respect thereto; and (iii) five (5) years following the Closing Date for all other matters; provided that in each case the Indemnitor (as defined below) shall continue to be responsible after such expiration dates for those claims and losses of which they have received notice required by this Article prior to the expiration dates referred to in (i), (ii) and (iii) of this Section 10.4(e). Except in the case of fraud or a willful or intentional breach of this Agreement, no Indemnified Party (as defined below) shall be entitled to receive any special, punitive, incidental or diminution of value or any damages based on any type of multipleconsequential damages.
(d) 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 had knowledge of such inaccuracy or breach prior to the Closing.
Appears in 1 contract
Sources: Agreement for Purchase and Sale of Licenses (Sunshine PCS Corp)
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Sellers shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount except where Losses from any individual claim or series of all Losses related claims in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $10,000 (the "Deductible"“De Minimus Amount”), in which event the Indemnifying Party Sellers shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party Sellers shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% $1,500,000 (the “Cap”).
(b) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) except where Losses from any individual claim or series of related claims in respect of indemnification under Section 8.03(a) exceeds the Purchase PriceDe Minimus Amount, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.
(c) Buyer Indemnitees’ sole recourse for the indemnification by Sellers set forth in Section 8.04(a) above shall be limited to the amounts in the Indemnification Escrow Fund, and the Buyer’s right of set-off against any Earn-Out Payments due to Sellers as set forth in Section 2.08(g) herein. For the avoidance of doubt, Buyer Indemnitees shall not have a right of set-off against the Initial Payment, One Year Fixed Payment, or Two Year Fixed Payment, except for the amounts in the Indemnification Escrow Fund.
(d) Notwithstanding the foregoing, the limitations set forth in Section 8.04(a) and Section 8.04(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 3.01, Section 3.03, Section 3.19, Section 3.20, Section 3.24, Section 4.01 and Section 4.04.
(e) For purposes of this ARTICLE VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.
(f) In no event shall any Indemnifying Party (as defined below) be liable to any Indemnified Party (as defined below) for any punitive, incidental, consequential, special, 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 multiplemultiple (other than indemnification for amounts paid or payable to third parties in respect of any third-party claim for which indemnification hereunder is otherwise required).
(dg) Seller Each Indemnified Party shall not take, and cause its Affiliates to take, commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be liable under this ARTICLE VI for reasonably expected to, or does, give rise to 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 had knowledge of such inaccuracy or breach prior to the Closingthat are indemnifiable hereunder.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 and Section 6.02 7.2 shall be subject to the following limitations:
(a) Except as otherwise provided herein, recovery from the 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 be liable to the Indemnified Party for indemnification under Section 6.01(a7.2(a)(i) and or Section 6.02(a7.2(b)(i) (in each case, except to the extent arising out of breaches of Fundamental Representations), as the case may be, until the aggregate amount of all Losses Damages in respect of indemnification under Section 6.01(a7.2(a)(i) or Section 6.02(b)7.2(b)(i) (in each case, as except to the case may be, extent arising out of breaches of Fundamental Representations) exceeds 100% of the Purchase Price $30,000 (the "Deductible"“Basket”), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of Damages from the Deductible.
(b) first dollar. The aggregate amount of all Losses Damages for which an Indemnifying Party shall be liable pursuant to Section 6.01(a7.2(a) or Section 6.02(a7.2(b), as the case may be, shall not exceed 150% 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 Buyer in connection with the Purchase Priceexecution, delivery and performance of this Agreement and the transactions contemplated hereby, without regard to such limitations.
(c) 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 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 Damages prior to seeking indemnification under this Agreement.
(d) Payments by an Indemnifying Party pursuant to Section 7.2 in respect of any Damages shall be reduced by an amount equal to any Tax benefit realized or reasonably expected to be realized as a result of such Damage by the Indemnified Party.
(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 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.
(df) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Damages 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 Loss.
(g) Seller shall not be liable under this ARTICLE VI Article 7 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 had knowledge of such inaccuracy or breach prior to the Closing.
Appears in 1 contract
Sources: Equity Exchange Agreement (Collective Audience, Inc.)
Certain Limitations. The party making a claim under this 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 6.01 and Section 6.02 8.2 shall be subject to the following limitations:
(a) The Indemnifying Party aggregate amount of all Losses for which the Seller shall be liable pursuant to Section 8.2 shall not be liable to exceed $3,750,000.00 (the Indemnified Party for indemnification under Section 6.01(a) and Section 6.02(a“Cap”). After the first anniversary of the Closing Date, as the case may be, until the aggregate amount of all Losses for which Seller shall be liable pursuant to Section 8.2 shall not exceed $2,500,000.00 (the “Adjusted Cap”); provided that Buyer Indemnitees have not incurred Losses in respect an aggregate amount in excess of indemnification the Adjusted Cap prior to the first anniversary of the Closing Date. If, prior to the first anniversary of the Closing Date, Buyer Indemnitees have incurred aggregate Losses in excess of the Adjusted Cap, but less than the Cap (the “First Year Losses”), then the Buyer Indemnitees will have no further recourse against Seller for Losses incurred under Section 6.01(a) or Section 6.02(b), as the case may be, exceeds 100% 8.2 in excess of the Purchase Price First Year Losses.
(b) No Buyer Indemnitee will be entitled to any indemnification pursuant to Section 8.2 (except for claims arising from any breach or inaccuracy of the representations or warranties contained in Section 3.20) unless the aggregate of all Losses would exceed on a cumulative basis an amount equal to $330,000.00 (the "Deductible"“Basket”), in which in which event the Indemnifying Party shall only Seller will be required to pay or be liable for all such Losses from the first dollar.
(c) Nothing in this Section 8.3 shall limit or restrict any of the Buyer Indemnitees’ right to maintain any action or claim or recover any Losses against or from a Person that has committed Fraud. In no event shall Seller be liable for any Losses in excess of the Deductible.
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase Price.
(c) 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 multipleCash Proceeds.
(d) The Seller shall not be liable under this ARTICLE VI for any Losses based upon or arising out have no right of any inaccuracy in or breach of contribution from any of the representations Buyer Indemnitees with respect to any Loss for which Seller is required to indemnify such Buyer Indemnitee pursuant to this Article VIII.
(e) No Buyer Indemnitee will be entitled to indemnification hereunder for Losses with respect to any Liability to the extent (i) such matter was taken into account in determining the Final Cash Consideration or warranties (ii) such matter was reserved for in the Financial Statements.
(f) The amount of any and all Losses under this Article VIII and indemnified Taxes under Article VII will be determined net of any Tax Benefits inuring to any Buyer Indemnitee or any of its Affiliates on the account of such Loss. If the Buyer Indemnitee receives a Tax Benefit after an indemnification payment is made to it that was not taken into account at the time the indemnification payment was made, such Buyer Indemnitee shall promptly, but in no event later than ten (10) days after such time that such Tax Benefit is actually realized, pay to the indemnifying party the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is actually realized by the Buyer Indemnitee. A Tax Benefit shall be actually realized by the Buyer Indemnitee upon the receipt of a refund of Taxes paid or the filing of a Tax Return, including an estimated Tax Return, showing a Tax Benefit (or, if earlier, the date when such a Tax Return should have been timely filed, including properly obtained extensions). For purposes hereof, “Tax Benefit” shall mean (i) any refund or credit of Taxes paid or (ii) the amount such Buyer Indemnitee’s liability for Taxes through a taxable period, calculated by excluding the relevant amount of credit, deduction or Loss, would exceed such Buyer Indemnitee’s actual liability for Taxes through such period, calculated by taking into account the relevant amount of credit, deduction or Loss, in each case computed at the highest marginal Tax rates applicable to the recipient of such benefit.
(g) The amount of any and all Losses under this Article VIII will be determined net of any amounts actually recovered by any Buyer Indemnitee or any of such Buyer Indemnitee’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Buyer Indemnitee or such Buyer Indemnitee’s Affiliates is a party or has rights (each a “Policy”). To the extent a Loss is clearly recoverable or for which there is a right of recovery under any such Policy, the Buyer Indemnitee agrees to submit a claim for coverage under such Policy coincident with making a claim for indemnification pursuant to this Article VIII. The final amount to which Seller contained is obligated to indemnify Buyer Indemnitee shall be calculated after the Buyer Indemnitee receives payment from the insurer under such Policy with respect to the claim or a determination that there is no coverage under such Policy, and then such amount shall be paid in accordance with Section 8.5 of this Agreement. Notwithstanding the foregoing and subject to the Basket, Seller shall reimburse Buyer Indemnitee for the deductible or any reasonable out-of-pocket expenses paid in connection with the submission of the claim for coverage under any such Policy, which payment will be made in accordance with Section 8.5 of this Agreement.
(h) Nothing in this Agreement if Buyer had knowledge will be interpreted to restrict or otherwise limit any party’s common law duty to mitigate a Loss it may suffer or incur as a result of such inaccuracy or breach prior an event that may give rise to the Closingan indemnification claim under this Agreement.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.2 and Section 6.02 8.3 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Acquiror Indemnitees for indemnification under Section 6.01(a8.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.2(a) exceeds $2,600,000 (the “Basket”), at which time, Seller shall indemnify the Acquiror Indemnitees for all such Losses from in excess of such amount; provided, that the foregoing limitation shall not apply to any breach or alleged breach of any Fundamental Representations or the representations and warranties set forth in Section 2.5. Further, Seller shall not be liable to the Acquiror Indemnitees for indemnification under Section 8.2(e) until the aggregate amount of all Losses in respect of indemnification under Section 8.2(e) exceeds $50,000 (“Ransomware Basket”), at which time, Seller shall indemnify the Acquiror Indemnitees for all such Losses from in excess of such amount.
(b) Buyer shall not be liable to Seller Indemnitees for indemnification under Section 8.3(a)(i) and PropCo shall not be liable to Seller Indemnitees for indemnification under Section 6.02(a8.3(b)(i), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.3(a)(i) or and Section 6.02(b8.3(b)(i), as the case may beapplicable, exceeds 100% of the Purchase Price (the "Deductible")Basket, in at which event the Indemnifying Party time Buyer or PropCo, as applicable, shall only be required to pay or be liable indemnify Seller Indemnitees for all such Losses from in excess of such amount; provided, that the Deductible.
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, foregoing limitation shall not exceed 150% apply to any breach or alleged breach of the Purchase PriceFundamental Representations.
(c) In no event shall Notwithstanding 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 other provision to the contrary, the maximum aggregate Liability of Seller for Losses under Section 8.2(a) and Section 8.2(e) shall be $26,000,000, and (ii) Buyer and PropCo for Losses under Section 8.3(a)(i) and Section 8.3(b)(i), shall be $26,000,000 in the aggregate; provided, that the maximum Liability of Seller for Losses resulting from a breach or alleged breach of this Agreementany Fundamental Representations shall be $130,000,000. Furthermore, or diminution of value or any damages based on any type of multipleindemnification claims pursuant to Section 8.2(a), Section 8.2(e), Section 8.3(a)(i) and Section 8.3(b)(i) must be brought within the applicable survival periods set forth in Section 8.1.
(d) Seller Notwithstanding the foregoing, the limitations set forth in this Section 8.4 shall not apply to Losses as a result of Fraud. Solely with respect to actions grounded in Fraud, (A) the right of a party to be indemnified and held harmless pursuant to the indemnification provisions in this Agreement shall be in addition to and cumulative of any other remedy of such party at law or in equity and (B) no party shall, by exercising any remedy available to it under this Article VIII, be deemed to have elected such remedy exclusively or to have waived any other remedy, whether at law or in equity, available to it.
(e) For purposes of determining the dollar amount of Losses with respect to any claim resulting from any breach or inaccuracy of a representation or warranty, all “material”, “materiality”, “in all material respects”, or “Material Adverse Effect” qualifications or exceptions in such representation or warranty shall be disregarded (but such qualifications shall not be liable so disregarded for purposes of the determination of the underlying breach or inaccuracy); provided, however, that the disregarding of such qualifications and exceptions shall not apply to the representations and warranties, or otherwise affect, the definitions of “Material Contracts” and “Material Adverse Effect”.
(f) The amount of any Losses subject to indemnification pursuant to this Agreement (i) shall not be duplicative of any other Losses for which an indemnification claim has been paid and (ii) shall be computed net of any amounts actually recovered by such Indemnified Party under any insurance policy (including any title insurance policy) with respect to such Losses (net of any costs and expenses incurred in obtaining such recovery). The existence of a claim by an Indemnified Party for monies from an insurer or other party shall not, however, delay any payment pursuant to the indemnification provisions contained herein and otherwise determined to be due and owing by an Indemnifying Party. Rather, the Indemnifying Party shall make timely payment of the full amount of Losses determined to be due and owing by it, and if the Indemnified Party later actually recovers insurance or other proceeds in respect of such Losses then the Indemnified Party shall promptly reimburse the Indemnifying Party to the extent necessary to avoid double recovery of the same Losses. The Indemnified Party shall use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss to the same extent as such Indemnified Party would if such Loss were not subject to indemnification hereunder. Any deductible attributable to claims made shall be indemnifiable Losses. Nothing herein shall waive any party’s common law duty to mitigate any such claim or liability upon and after becoming aware of any event or condition which could reasonably be expected to give rise to any Losses that are indemnifiable under this ARTICLE VI Article VIII, provided, that the failure to so mitigate shall only reduce the rights of such party to recover for any Losses based upon or arising out of any inaccuracy in or breach of any to the extent of the representations or warranties of Seller contained in this Agreement if Buyer had knowledge of Losses that would have been avoided by such inaccuracy or breach prior to the Closingmitigation.
Appears in 1 contract
Sources: Equity Purchase Agreement (Golden Entertainment, Inc.)
Certain Limitations. The party making a claim under this 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 6.01 9.02 and Section 6.02 9.03 shall be subject to the following limitations:
(a) The Indemnifying Party No Seller or Owner shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a9.02(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 4.02, Section 4.08, Section 4.19, Section 4.20, and Section 6.02(a4.21 (the “Buyer Basket Exclusions”), as the case may be), until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a9.02(a) (other than those based upon, arising out of, with respect to or Section 6.02(b), as the case may be, exceeds 100% by reason of the Purchase Price (the "Deductible")Buyer Basket Exclusions) exceeds $500,000, in which event the Indemnifying Party Sellers and Owners shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 6.01(a) or Section 6.02(a)first dollar; provided, as the case may behowever, shall not exceed 150% of the Purchase Price.
(c) 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.
(d) Seller that Sellers and Owners collectively shall not be liable to the Buyer Indemnitees for indemnification under this ARTICLE VI Section 9.02(a) (other than with respect to a claim for any Losses indemnification based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty contained in the Buyer Basket Exclusions) for Losses that exceed $11,600,000 in the aggregate (the “Buyer Aggregate Indemnity Cap”).
(b) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 9.03(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 6.01, Section 6.02 and Section 6.04 (the “Seller Basket Exclusions”)) until the aggregate amount of all Losses in respect of indemnification under Section 9.03(a) (other than those based upon, arising out of, with respect to or by reason of the representations Seller Basket Exclusions) exceeds $500,000.00, in which event Buyer shall be required to pay or warranties be liable for all such Losses from the first dollar.
(c) For purposes of Seller this Article IX, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 and Section 6.02 shall be subject to the following limitations:
(a) The Indemnifying Party representations and warranties contained in Sections 4.3 (Taxes), 4.8 (Employee And Fringe Benefits), and 4.11(a) and (c) (Compliance with Laws) shall not survive until ninety (90) days after the expiration of the statute of limitations period applicable thereto. The representations and warranties contained in Sections 4.1 (Status of Seller), 4.14 (Commissions), 5.1 (Status of Buyer) and 5.2 (Commissions and Fees) shall survive indefinitely. There shall be liable no time limitations on claims for indemnity based upon the payment by the party seeking indemnification of any Excluded Liability or Assumed Liability that is the obligation of the other party under this Agreement. All other representations and warranties, covenants and agreements contained in this Agreement shall survive until the first anniversary of the Closing Date provided that any representation, warranty, covenant or agreement with respect to which indemnity may be sought under this Article 10 shall survive the time that it would otherwise terminate if notice of the breach thereof giving rise to the Indemnified Party right to indemnity shall have been given to the party against which indemnity is sought prior to such date.
(b) No damages shall be recoverable by the Seller Parties or Buyer Parties pursuant to the provisions of this Article 10, and no claim therefor will be asserted for indemnification under Section 6.01(a) and Section 6.02(a)any purpose whatsoever hereunder, unless the amount of the Seller Parties' or Buyer Parties', as the case may be, until damages equals at least Fifty Thousand and 00/100 Dollars ($50,000.00) in the aggregate amount of all Losses but upon exceeding Fifty Thousand and 00/100 Dollars ($50,000.00) in respect of the aggregate, the party seeking indemnification under Section 6.01(a) or Section 6.02(b), as shall be entitled to be indemnified from the case may be, exceeds 100% of the Purchase Price (the "Deductible"), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of the Deductiblefirst dollar.
(bc) The aggregate amount of all Losses for which an Indemnifying Party shall be liable damages recoverable pursuant to Section 6.01(a) or Section 6.02(athis Article 10 for breaches of representations and warranties will be limited to One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00), as the case may be, . Such limitation shall not exceed 150% apply to claims for indemnity based upon the payment by the party seeking indemnification of any Excluded Liability or Assumed Liability that is the obligation of the Purchase Price.
(c) In no event shall any Indemnifying Party be liable other party under this Agreement or 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 claim in which the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multipleparty seeking indemnification has established fraud and/or intentional misrepresentation.
(d) Seller The amount which any Indemnitor is or may be required to pay any Indemnitee pursuant to this Article 10 shall not be liable under reduced by any insurance proceeds or other amounts actually recovered by or on behalf of such Indemnitee in reduction of the related Loss. If an Indemnitee shall have received the payment required by this ARTICLE VI for any Losses based upon Agreement from an Indemnitor in respect of a Loss and shall subsequently actually receive insurance proceeds or arising out other amounts in respect of such Loss, then such Indemnitee shall pay to such Indemnitor a sum equal to the amount of such insurance proceeds or other amounts actually received (net of any inaccuracy expenses in or breach of any of obtaining the representations or warranties of Seller contained in this Agreement if Buyer had knowledge of such inaccuracy or breach prior to the Closingsame).
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Sellers shall not be liable to the Indemnified Party Buyer Indemnities for indemnification under Section 6.01(a8.02(a) (other than a breach of the Fundamental Representations or the representations and warranties set forth in Section 3.22 by any Seller Party) for any individual item or series of related items the Losses relating thereto is less than $25,000 (the “De Minimis Threshold”) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses (other than any Losses that did not exceed the De Minimis Threshold) in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $1,500,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Seller shall only be required to pay or be liable for all such Losses in excess of the Deductible.
(b) from $250,000. The aggregate amount of all Losses for which an Indemnifying Party Seller shall be liable pursuant to Section 6.01(a8.02(a) (other than a breach of the Fundamental Representations or the representations and warranties set forth in Section 6.02(a), as the case may be, 3.22 by any Seller Party) and Section 8.02(b) shall not exceed 150% $21,000,000 (the “Cap”).
(b) Buyer shall not be liable to the Seller Indemnities for indemnification under Section 8.03(a) (other than Buyer’s Fundamental Representations) for any individual item or series of related items the Purchase PriceLosses relating thereto is less than the De Minimis Threshold and until the aggregate amount of all Losses (other than any Losses that did not exceed the De Minimis Threshold) 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 from $250,000. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) (other than Buyer’s Fundamental Representations) and Section 8.03(b) shall not exceed the Cap.
(c) 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 For purposes of this AgreementArticle VIII, or diminution of value or any damages based on any type of multiple.
(d) 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 representation or warranties of Seller warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior warranty, other than all references to the Closingterm Material Contracts.
(d) The amount of any Losses subject to indemnification under this Article VIII shall be calculated net of any insurance proceeds or any indemnity, contribution or other similar payment received by the Indemnified Party or any of its Affiliates from any third party with respect thereto.
(e) Buyer shall not be entitled to indemnification pursuant to this Article VIII for any Losses to the extent that such Losses are included in the calculation of Closing Working Capital.
Appears in 1 contract
Sources: Membership Interest and Asset Purchase Agreement (CONSOL Energy Inc)
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller Parent shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of (i) any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 4.02, Section 4.08, Section 4.09, Section 4.17, Section 4.18, Section 4.20 and Section 4.23 or (ii) any breach of any Seller’s representation or warranty made with the intent to mislead or defraud any Buyer (items (i) and Section 6.02(a), (ii) are collectively referred to herein as the case may be“Buyer Basket Exclusions”), until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) (other than those based upon, arising out of, with respect to or Section 6.02(b), as the case may be, exceeds 100% by reason of the Purchase Price (the "Deductible")Buyer Basket Exclusions) exceeds $100,000, in which event the Indemnifying Party Seller Parent shall only be required to pay or be liable for such Losses in excess of the Deductiblesuch amount.
(b) Buyer Parent shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of (i) any inaccuracy in or breach of any representation or warranty in Section 5.01 and Section 5.02 or (ii) any breach of any Buyer’s representation or warranty made with the intent to mislead or defraud any Seller (items (i) and (ii) are collectively referred to herein as the “Seller Basket Exclusions”) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) (other than those based upon, arising out of, with respect to or by reason of the Seller Basket Exclusions) exceeds $100,000, in which event Buyer Parent shall be only required to pay or be liable for such Losses in excess of such amount.
(c) With respect to any claims which the Buyer Indemnitees may be entitled to indemnification under Section 8.02(a), Seller Parent shall not be liable for any individual or series of related Losses which do not exceed $10,000 (which Losses shall not be counted towards the other limit in this Section 8.04(a)).
(d) With respect to any claims as to which the Seller Indemnitees may be entitled to indemnification under Section 8.03(a), Buyer Parent shall not be liable for any individual or series of related Losses which do not exceed $10,000 (which Losses shall not be counted towards the other limit in this Section 8.04(b)).
(e) The aggregate amount of all Losses for which an Indemnifying Party Seller Parent shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as (other than the case may be, Buyer Basket Exclusions) shall not exceed 150% of the Purchase PriceThree Million Four Hundred Thousand Dollars ($3,400,000).
(cf) In no event The aggregate amount of all Losses for which Buyer Parent shall any Indemnifying Party be liable pursuant 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 Section 8.03(a) (other than the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multipleSeller Basket Exclusions) shall not exceed Three Million Four Hundred Thousand Dollars ($3,400,000).
(dg) Seller shall not be liable The amount of any and all Losses under this ARTICLE VI for any Losses based upon or arising out Article VIII will be determined net of any inaccuracy in amounts recovered by an Indemnified Party or breach of its Affiliates under or pursuant to any of the representations insurance policy, title insurance policy, indemnity, reimbursement arrangement or warranties of Seller contained in this Agreement if Buyer had knowledge of contract pursuant to which or under which such inaccuracy Indemnified Party or breach prior to the ClosingAffiliate is a party or has rights.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 4.02. Section 4.05 and Section 6.02(a4.06 (the “Buyer Basket Exclusions”), as the case may be), until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) (other than those based upon, arising out of, with respect to or Section 6.02(b), as the case may be, exceeds 100% by reason of the Purchase Price (the "Deductible")Buyer Basket Exclusions) exceeds $100,000, in which event the Indemnifying Party Seller shall only be required to pay or be liable for all such Losses in excess of from the Deductiblefirst dollar after $100,000.
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase Price.
(c) 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.
(d) Seller Buyers shall not be liable to the Seller Indemnitees for indemnification under this ARTICLE VI Section 8.03(a) (other than with respect to a claim for any Losses indemnification based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 5.01, Section 5.02 and Section 5.04 (the “Seller Basket Exclusions”)) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) (other than those based upon, arising out of, with respect to or by reason of the representations Seller Basket Exclusions) exceeds $100,000, in which event Buyers shall be required to pay or warranties be liable for all such Losses from the first dollar after $100,000.
(c) For purposes of Seller this Article VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior warranty.
(d) Notwithstanding anything to the Closingcontrary, in no event shall Seller and Parent, on the one hand, or Buyers, on the other hand be liable under this Article VIII for Losses exceeding $4,000,000.
Appears in 1 contract
Sources: Asset Purchase Agreement (Xenetic Biosciences, Inc.)
Certain Limitations. The party making a claim under this 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 6.01 and Section 6.02 shall be subject to the following limitations:
(a) The Indemnifying Party To the extent permitted by Law, Sellers shall not be required to provide indemnification under Section 8.2(a) unless and until the amount of the Losses for which a right of indemnification is provided, when aggregated with all other Losses for which a right of indemnification is provided under Section 8.2(a) exceeds $250,000 (the “Minimum Aggregate Liability Amount”), at which time indemnification for Losses may be asserted only to the extent such Losses exceed the Minimum Aggregate Liability Amount, up to $12,500,000. Notwithstanding the foregoing, Sellers shall not be liable to the Indemnified Party for any Loss or series of related Losses under Section 8.2(a) which do not exceed $10,000. In addition, in no event shall Sellers have any liability for indemnification of Losses under Section 6.01(a8.2(b) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price (the "Deductible"), in which event the Indemnifying Party shall only be required to pay or be liable for Losses in excess of the Deductibleproceeds actually received by Sellers pursuant to this Agreement.
(b) The aggregate amount Notwithstanding any other provision of all Losses for which an Indemnifying Party this Agreement to the contrary, none of the Parties shall be liable pursuant to Section 6.01(a) the other, whether in contract, tort or Section 6.02(a)otherwise, as for any special, punitive, exemplary, indirect, incidental, consequential or other similar type of damages whatsoever, including diminution in value, loss of business opportunity, or for any Losses based on a multiple of value, that in any way arise out of, or relate to, or are a consequence of, its performance or nonperformance under this Agreement, except to the case may be, shall not exceed 150% of the Purchase Priceextent to which a third party claim indemnified under this Article VIII includes such damages.
(c) 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.
(d) Seller Sellers shall not be liable required to provide indemnification under this ARTICLE VI for Article VIII with respect to any Losses based upon suffered or incurred by reason of, or arising out of, any breach or failure of any inaccuracy in representation or breach warranty of any of the representations or warranties of Seller Sellers contained in this Agreement if Sellers informed Buyer had knowledge in writing of such inaccuracy or breach prior to the no less than thirty (30) days in advance of Closing.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 shall be 8.03 are subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $87,500 (the "“Deductible"”), in which event the Indemnifying Party Seller shall only be required to pay or be liable for all such Losses in excess of the Deductible.
(b) . The aggregate amount of all Losses for which an Indemnifying Party Seller shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% $1,750,000 (the “Cap”); provided, however, that the aggregate amount of all Losses for which Seller shall be liable pursuant to Section 8.02(a) with respect to Seller Fundamental Representations shall be equal to the Offset Price.
(b) Buyer shall not be liable to the Seller 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 Deductible, in which event Buyer shall be required to pay or be liable for all such Losses in excess of the Purchase Deductible. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap; provided, however, that the aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) with respect to Buyer Fundamental Representations shall not exceed the Offset Price.
(c) In no event Notwithstanding the foregoing, the limitations set forth in Section 8.05(a) and Section 8.05(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of (i) any Indemnifying Party be liable to actual fraud or (ii) for the avoidance of doubt, 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 multipleCompany Representations.
(d) Seller Each Indemnified Party shall, and shall cause any affected Affiliate to, use commercially reasonable efforts to mitigate any Loss promptly upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise to such Loss (it being agreed that the Indemnified Party will not have to exhaust any such efforts prior to making a claim under this Article VIII), and the Indemnified Party’s failure to promptly commence such efforts shall not be liable affect the Indemnifying Party’s obligations 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 had knowledge of such inaccuracy or breach prior to the ClosingArticle VIII.
Appears in 1 contract
Sources: Asset Purchase Agreement (Flotek Industries Inc/Cn/)
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Sellers shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses sustained by Buyer Indemnitees by reason of inaccuracies in, or breaches of, the representations or warranties made by Sellers in respect this Agreement, or in any certificate or instrument delivered by or on behalf of indemnification under Section 6.01(a) or Section 6.02(b), as the case may beSellers pursuant to this Agreement, exceeds 100% of the Purchase Price $491,250.00 (the "Deductible"“Basket”), in which event the Indemnifying Party Sellers shall only be required to pay or be liable indemnify Buyer Indemnitees for all such Losses in excess of the Deductible.
(b) Basket. The aggregate amount of all Losses for which an Indemnifying Party Sellers (cumulatively) shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% $491,250.00 (the “Cap”).
(b) Buyer shall not be liable to the Sellers Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses sustained by Seller Indemnitees by reason of inaccuracies in, or breaches of, the representations or warranties made by Buyer in this Agreement, or in any certificate or instrument delivered by or on behalf of Buyer pursuant to this Agreement, exceeds the Basket, in which event Buyer shall be required to indemnify Seller Indemnitees for all such Losses in excess of the Purchase PriceBasket. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 8.04(a) Seller and Section 8.04(b) shall not be liable under this ARTICLE VI for any (i) apply to Losses based upon or arising out of resulting from any inaccuracy in or breach of any Fundamental Representation; (ii) affect or otherwise limit any claim Buyer may have under the R&W Insurance Policy, or (iii) apply to the payment of the representations Working Capital Adjustment pursuant to Section 2.04.
(d) For purposes of this ARTICLE VIII, (including for purposes of determining the existence of any inaccuracy in, or warranties breach of, any representation or warranty and for calculating the amount of Seller any Loss with respect thereto), any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty, except for the references in Sections 3.08(a), 3.09(a)(xiii), and 3.11.
(e) Notwithstanding anything to the contrary in this ARTICLE VIII, in the event a party perpetrates a Fraud on the other party in connection with this Agreement or the transactions contemplated hereby, the Party who suffers Losses by reason thereof shall be entitled to seek recovery therefor against the person(s) who perpetrated such Fraud without regard to any limitation set forth in this Agreement if Buyer had knowledge (whether a temporal limitation, the Basket, Cap, or otherwise) and such Losses shall not count toward satisfaction of the Basket or Cap;
(f) No Seller shall be liable under this Agreement (including this ARTICLE VIII) with respect to any Losses which are taken into account in the determination of Closing Working Capital or the Working Capital Adjustment;
(g) The amount of any Losses which are indemnifiable or payable under this ARTICLE VIII by an Indemnifying Party shall be net of any amounts actually recovered by the Indemnified Party in respect of such inaccuracy Losses under applicable insurance policies or breach prior from any other third party alleged to be responsible therefor, including, without limitation, the Title Policy. If the Indemnified Party recovers any amounts under applicable insurance policies, or from any other third party alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, then the Indemnified Party receiving such payment shall promptly reimburse the Indemnifying Party for any portion of such indemnification payment which would not have been payable pursuant to the Closingoperation of the immediately preceding sentence had such payment been made after the Indemnified Party had recovered such other amount, net of any expenses reasonably incurred by such Indemnified Party in collecting such amount (including any deductible amounts, attorney’s fees and any increased insurance premiums). If the Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses and the Indemnified Party would reasonably have been expected to have been able to recover all or a part of such Losses from a third party based on the underlying claim asserted against the Indemnifying Party, the Indemnified Party shall assign such of its rights to proceed against such third party as are necessary to permit the Indemnifying Party to recover from such third party the amount of such indemnification payment;
(h) No Indemnifying Party shall be liable under this ARTICLE VIII for Losses that are for special or consequential damages, or damages based on a multiple, or for Losses which are exemplary or, except for instances of Fraud, punitive damages, unless such damages are payable to a third party;
(i) No Indemnifying Party shall be liable under this ARTICLE VIII for Losses arising from breaches of any representation or warranty pertaining to the title of any owned Real Property, including, without limitation, the representations and warranties set forth in Section 3.10, unless and until Buyer Indemnitees have pursued and exhausted all coverages, claims, rights, and protections set forth in the Title Policy;
(j) No Indemnifying Party shall be liable under this ARTICLE VIII for Losses arising from breaches of any representation or warranty pertaining to inventory, accounts receivable, or any other Current Assets or Current Liabilities taken into account for purposes of determining Closing Working Capital, including, without limitation, the representations and warranties set forth in Sections 3.13 and 3.14, unless the amount of the resulting Losses would have caused a Working Capital Adjustment to occur (if such Losses had been known at the time when Closing Working Capital was determined), or, if a Working Capital Adjustment does occur, would have resulted in a different Working Capital Adjustment (if such Losses had been known at the time when Closing Working Capital was determined) (any such Losses, which, if known at the time when Closing Working Capital was determined, would have caused a Working Capital Adjustment to occur, or, if a Working Capital Adjustment does occur, would have resulted in a different Working Capital Adjustment, being referred to herein as “Losses in Excess of Collar”). In the event that Losses in Excess of Collar result from breaches of any representation or warranty pertaining to inventory, accounts receivable, or any other Current Assets or Current Liabilities taken into account for purposes of determining Closing Working Capital (including, without limitation, the representations and warranties set forth in Sections 3.13 and 3.14), the Indemnifying Parties shall only be liable under this ARTICLE VIII for such Losses in Excess of Collar, and shall not be liable for any other such resulting Losses. The terms of this Section shall not affect any other limitation set forth in this Section 8.04. For purposes of clarity, and by way of example, if a Closing Working Capital Deficit exists of $1,000,000 (resulting in no Working Capital Adjustment), and Losses resulting from breaches of a representation or warranty pertaining to inventory, accounts receivable, or any other Current Assets or Current Liabilities taken into account for purposes of determining Closing Working Capital are (i) $500,000, no such Losses would be subject to indemnification hereunder, or (ii) $1,500,000, the Losses in Excess of Collar ($500,000) would be subject to indemnification hereunder. Furthermore, if a Closing Working Capital Surplus exists of $2,500,000 (resulting in a Working Capital Adjustment of $500,000), and Losses resulting from breaches of a representation or warranty pertaining to inventory, accounts receivable, or any other Current Assets or Current Liabilities taken into account for purposes of determining Closing Working Capital are (i) $300,000, the Losses in Excess of Collar ($300,000) would be subject to indemnification hereunder, or (ii) $1,500,000, the Losses in Excess of Collar ($500,000) would be subject to indemnification hereunder; and
(k) No Indemnifying Party shall be liable under this ARTICLE VIII for Losses arising from breaches of any representation or warranty pertaining to environmental matters, including, without limitation, the representations and warranties set forth in Sections 3.19, if and to the extent the resulting Losses relate to, result from, or arise out of any matter disclosed in Sections 3.19(b), (e), (f), or (h) of the Disclosure Schedules (the parties acknowledging that Buyer has conducted extensive due diligence relating to the owned Real Property, including, without limitation, conducting the Phase I and Phase II, and that Sellers shall have no liability or indemnification obligations hereunder for Losses relating to, resulting from, or arising out of matters disclosed in the Phase I and/or Phase II).
(l) No Indemnifying Party shall be liable under this ARTICLE VIII for Losses arising from the Company’s or Sellers’ failure to obtain consent from, or failure to notify, the State of Kansas (and its related agencies) or InTrust Bank, with respect to the Closing and/or the transactions contemplated hereby.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 10.2 and Section 6.02 10.3 shall be subject to the following limitations:
(a) The Indemnifying Party Subject to Section 10.4(d), the Transferors shall not be liable to the Indemnified Party Acquiror Indemnitees for indemnification under Section 6.01(a10.2(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a10.2(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $50,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Transferors shall only be required to pay or be liable for all Losses in respect of indemnification under Section 10.2(a) in excess of the Deductible.
(b) Basket. The aggregate amount of all Losses for which an Indemnifying Party the Transferors shall be liable pursuant to Section 6.01(a10.2(a) or Section 6.02(a), as the case may be, shall not exceed 150% $1,000,000 (the “Cap”). Except for claims based on fraud, intentional misrepresentation or intentional breach, the Transferors shall not have liability pursuant to Section 10.2 in an aggregate amount greater than the Purchase Price as finally determined pursuant to this Agreement.
(b) Acquiror shall not be liable to the Transferor Indemnitees for indemnification under Section 10.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 10.3(a) exceeds the Basket, in which event Acquiror shall be liable for all Losses in respect of indemnification under Section 10.3(a) in excess of the Basket. The aggregate amount of all Losses for which Acquiror shall be liable pursuant to Section 10.3(a) shall not exceed the Cap. Except for claims based on fraud, intentional misrepresentation or intentional breach, Acquiror shall not have liability pursuant to Section 10.3 in an aggregate amount greater than the Purchase PricePrice as finally determined pursuant to this Agreement.
(c) 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.[Intentionally Omitted]
(d) Seller Notwithstanding the foregoing, neither the Basket nor the Cap shall not be liable under this ARTICLE VI for apply to any Losses indemnification claims based upon or upon, arising out of, with respect to, relating to or by reason of any inaccuracy in or breach of a Fundamental Representation or claims based on fraud, intentional misrepresentation or intentional breach or any of the representations or warranties of Seller contained in this Agreement if Buyer had knowledge of such inaccuracy or breach prior claim with respect to the ClosingTaxes.
Appears in 1 contract
Sources: Stock Acquisition Agreement (Madison Technologies Inc.)
Certain Limitations. The party making a claim under this 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 6.01 6.02 and Section 6.02 6.03 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyers Indemnitees for indemnification under Section 6.01(a6.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a6.02(a) or Section 6.02(b), as exceeds the case may be, exceeds 100% of the Purchase Price (the "Deductible")Basket Amount, in which event the Indemnifying Party Seller shall only be required to pay or be liable for the amount of such Losses from the first dollar. Notwithstanding the foregoing, the limitations on liability contained in excess this Section 6.04(a) shall not apply to any claim for indemnity based on any inaccuracy or breach of the DeductibleSeller Fundamental Representations or fraud.
(b) The Buyers shall not be liable to the Seller Indemnitees for indemnification under Section 6.03(a) until the aggregate amount of all Losses for in respect of indemnification under Section 6.03(a) exceeds the Basket Amount, in which an Indemnifying Party event the Buyers shall be required to pay or be liable pursuant for the amount of such Losses from the first dollar. Notwithstanding the foregoing, the limitations on liability contained in this Section 6.04(b) shall not apply to any claim for indemnity based on any inaccuracy or breach of Section 6.01(a) 4.01, Section 4.02 or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase Price4.04 or fraud.
(c) 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.
(d) Seller The Buyers Indemnitees shall not be liable under this ARTICLE VI indemnified pursuant to Section 6.02(a) with respect to any Loss if the aggregate of all Losses for any Losses based upon which the Buyers Indemnitees have received indemnification has exceeded $1,300,000 (the “Cap”); provided, however, that the Cap shall not apply to (i) claims arising out of, relating to, or resulting from fraud or (ii) a claim arising out of any inaccuracy in or breach of any of Seller Fundamental Representations. Seller’s obligations, if any, to indemnify the representations or warranties Buyers Indemnitees for any Losses under this Article VI shall be satisfied first from any funds remaining in the Escrow Account. For the avoidance of Seller doubt, the limitations on liability contained in this Agreement Section 6.04(c) shall not apply to any claims for indemnification pursuant to Section 6.02 other than under Section 6.02(a).
(d) Notwithstanding anything to the contrary set forth in this Agreement, Seller’s obligations, if Buyer had knowledge any, to indemnify the Buyers Indemnitees for any Losses pursuant to Section 6.02(a) shall be satisfied solely from (i) first, any funds remaining in the Escrow Account and (ii) second, by setoff of such any amounts owed to Seller under Section 1.07 (the “Setoff Limitation”); provided, however, that the Setoff Limitation shall not apply to (i) claims arising out of, relating to, or resulting from fraud, (ii) a claim arising out of any inaccuracy in or breach prior of any of Seller Fundamental Representations, or (iii) Excluded Liabilities related to Taxes and Pre-Closing Taxes.
(e) Notwithstanding anything to the Closingcontrary set forth in this Agreement, in no event shall Seller be liable under this Agreement or in connection with the transactions contemplated hereby for any amount in excess of one hundred percent (100%) of the Purchase Price actually received by Seller, except in the case of fraud committed by Seller, Excluded Liabilities related to Taxes and Pre-Closing Taxes.
(f) Losses shall be calculated net of actual recoveries received by or on behalf of the Buyers under insurance policies (net of any actual costs of recovery or collection, deductibles, retroactive premium adjustments, reimbursement obligations or other costs directly related to the insurance claim and deductibles) or any rights of indemnification or contribution.
(g) For purposes of determining the amount of any Losses (but not in determining whether a representation, warranty or covenant has been breached) for purposes of this Article VI, the words “material,” “materiality,” “Material Adverse Effect” or similar qualifications contained in any representation, warranty or covenant shall be disregarded.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (BioTelemetry, Inc.)
Certain Limitations. The party making a claim under Notwithstanding anything in this 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 6.01 and Section 6.02 shall be subject Agreement to the following limitations:contrary,
(a) The Indemnifying Party no party shall indemnify or otherwise be liable to any other party with respect to any claim for any breach of a representation, unless notice of the claim is given within eighteen months after the Closing Date;
(b) the Seller shall not be required to indemnify or otherwise be liable to the Indemnified Party Purchaser for indemnification under Section 6.01(a) and Section 6.02(a)any breach of a representation or warranty, as unless the case may be, until Losses of the Purchaser from all such breaches exceed in the aggregate amount of all Losses in respect of indemnification under Section 6.01(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price Twenty-Five Thousand Dollars (the "Deductible"$25,000), in which event the Indemnifying Party Seller shall only be required to pay or be liable indemnify the Purchaser for all such Losses (subject to the other limitations in excess of the Deductible.
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 6.01(a) or Section 6.02(athis Agreement), as the case may be, shall not exceed 150% of the Purchase Price.;
(c) In no event the Purchaser shall any Indemnifying Party not be required to indemnify or otherwise be liable to any Indemnified Party the Seller for any punitivebreach of a representation or warranty unless the Losses of the Seller from all such breaches exceed in the aggregate Twenty-Five Thousand Dollars ($25,000), incidental, consequential, special, or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating in which event the Purchaser shall be required to indemnify the Seller for all such Losses (subject to the breach or alleged breach of other limitations in this Agreement, or diminution of value or any damages based on any type of multiple.);
(d) the Seller shall not be liable required to indemnify for any breach of a representation or warranty, to the extent that the Losses of the Purchaser from all such breaches exceed in the aggregate the Cash Consideration paid (but not refunded) pursuant to Section 2.2 plus the aggregate royalties paid to the date of final determination of liability (and it is understood that such limitation does not apply to the indemnity set forth in Section 10.2(c));
(e) the Purchaser shall not be required to indemnify for any breach of a representation or warranty to the extent that the Losses of the Seller from all such breaches exceed in the aggregate the Cash Consideration provided for in Section 2.2 (and it is understood that such limitation does not apply to the indemnity set forth in Section 3.5 and Section 10.3(b));
(f) the amount of Losses for which a Claimant may be entitled to indemnification under this ARTICLE VI 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 Losses based upon or tax benefit arising out from the incurring of any inaccuracy in or breach Loss and any tax detriment arising from the indemnification thereof;
(g) indemnification of Losses under this Agreement shall be net of any of insurance proceeds actually paid to the representations or warranties of Seller contained in Claimant with respect to the event giving rise to such Loss, but no Claimant shall have any obligation under this Agreement if Buyer had knowledge of to make any claim under any insurance policy that may be applicable to such inaccuracy or breach prior to the Closingevent.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.2 and Section 6.02 8.3 shall be subject to the following limitations:
(a) The Indemnifying Party Seller shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.2(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.2(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price ten thousand dollars ($10,000) (the "Deductible"“Basket”), in which event the Indemnifying Party Seller shall only be required to pay or be liable for all such Losses in excess of the Deductible.
(b) Basket. The aggregate amount of all Losses for which an Indemnifying Party Seller shall be liable pursuant to Section 6.01(a8.2(a) or Section 6.02(a), as the case may be, shall not exceed 150% fifteen percent (15%) of the Purchase PricePrice (the “Cap”).
(b) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 8.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.3(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses in excess of the Basket. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 6.3(a) shall not exceed the Cap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 8.4(a) Seller shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 3.1, Section 3.2, Section 3.3, Section 3.10, Section 3.14, Section 3.18 and Section 3.20. The aggregate amount of all Losses for which Seller shall be liable pursuant to Section 8.1(a) based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 3.1, Section 3.2, Section 3.3, Section 3.10, Section 3.14, Section 3.18 and Section 3.20 shall not exceed the representations Purchase Price.
(d) For purposes of this Article 8, any inaccuracy in or warranties breach of Seller any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Sellers shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) (other than with respect to a claim for indemnification based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.01, Section 4.02, Section 4.08, Section 4.17, Section 4.19 and Section 6.02(a4.20 (the “Buyer Basket Exclusions”), as the case may be), until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) (other than those based upon, arising out of, with respect to or Section 6.02(b), as the case may be, exceeds 100% by reason of the Purchase Price (the "Deductible")Buyer Basket Exclusions) exceeds $75,000, in which event the Indemnifying Party Sellers shall only be required to pay or be liable for all such Losses in excess of from the Deductiblefirst dollar.
(b) The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase Price.
(c) 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.
(d) Seller Buyer and DRH shall not be liable to the Seller Indemnitees for indemnification under this ARTICLE VI Section 8.03(a) (other than with respect to a claim for any Losses indemnification based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 5.01, Section 5.02, and Section 5.04 (the “Seller Basket Exclusions”)) until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) (other than those based upon, arising out of, with respect to or by reason of the representations Seller Basket Exclusions) exceeds $75,000, in which event Buyer and DRH shall be required to pay or warranties be liable for all such Losses from the first dollar.
(c) Sellers’ maximum liability to the Buyer Indemnitees for indemnification under Section 8.02 shall not exceed $2,100,000.
(d) Buyer and DRH’s liability to the Seller Indemnitees for indemnification under Section 8.03 shall not exceed $2,100,000.
(e) For purposes of Seller this Article VIII, the amount of any Losses related to any inaccuracy in or breach of any representation or warranty shall be determined without regard to any standard of materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Sources: Asset Purchase Agreement (Diversified Restaurant Holdings, Inc.)
Certain Limitations. The party making a claim under this 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 6.01 9.2 and Section 6.02 9.3 shall be subject to the following limitations:
(a) The Indemnifying Party Stockholders and Warrantholders shall not be liable to the Indemnified Party Purchaser Indemnitees for indemnification under Section 6.01(a9.2(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a9.2(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $300,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Stockholders and Warrantholders shall only be required to pay or be liable for all such Losses in excess of from the Deductible.
(b) first dollar. The aggregate amount of all Losses for which an Indemnifying Party Stockholders and Warrantholders shall be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, 9.2 shall not exceed 150% the Holdback Amount (the “Cap”). For purposes of the Purchase Price.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveSection 9.2 and this Section 9.4(a), 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.
(d) 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 representation or warranty shall be determined without regard to any materiality, Company Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty for purposes of determining the amount of Losses.
(b) Purchaser shall not be liable to the Stockholder Indemnitees for indemnification under Section 9.3 until the aggregate amount of all Losses in respect of indemnification under Section 9.3 exceeds the Basket, in which event Purchaser shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Purchaser shall be liable pursuant to Section 9.3 shall not exceed the Cap. For purposes of Section 9.3 and this Section 9.4(b), any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Purchaser Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty for purposes of determining the amount of Losses.
(c) Notwithstanding anything herein to the contrary, liability for acts of fraud by any Person shall be unlimited; provided, however, that any individual Stockholder’s or Warrantholder’s aggregate indemnification obligations under this Article IX shall be limited to the lesser of (i) such Stockholder’s or Warrantholder’s ratable portion of the representations aggregate indemnification obligations of the Stockholders and Warrantholders as determined in accordance with such Stockholder’s or warranties of Seller contained Warrantholder’s Pro Rata Share and (ii) the aggregate Merger Consideration actually received by such Stockholder under this Agreement; provided, further, that nothing in this Section 9.4(c) or any other provision of this Agreement if Buyer had knowledge shall be read to limit a Stockholder’s or Warrantholder’s liability for acts of fraud committed by such inaccuracy Stockholder or breach prior to the ClosingWarrantholder.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 9.02 and Section 6.02 9.03 (and, with respect to Section 9.04(c), Section 6.03) shall be subject to the following limitationslimitations and additional provisions:
(a) The Indemnifying Party Except as set forth in Section 9.04(c), Stockholders shall not be liable to the Indemnified Party Parent Indemnitees for indemnification under Section 6.01(a9.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a9.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price an amount equal to $637,624 (the "“Deductible"”), in which event the Indemnifying Party Stockholders shall only be required to pay or be liable for all such Losses in excess of the Deductible.
(b) The . Except as set forth in Section 9.04(c), the aggregate amount of all Losses for which an Indemnifying Party Stockholders shall be liable pursuant to Section 6.01(a9.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% an amount equal to $12,752,480 (the “Cap”) (except for (i) any Losses related to any inaccuracy in or breach of any Fundamental Representations, which are subject to the limitation set forth in Section 9.04(c), and (ii) any Losses on the part of the Purchase PriceParent Indemnitee claiming indemnification hereunder resulting from F▇▇▇▇, intentional misrepresentations and intentional misconduct, which shall not be subject to the Cap).
(b) Except as set forth in Section 9.04(c), Parent shall not be liable to the Stockholder Indemnitees for indemnification under Section 9.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.03(a) exceeds the Deductible, in which event Parent shall be required to pay or be liable for all such Losses in excess of the Deductible. Except as set forth in Section 9.04(c), the aggregate amount of all Losses for which Parent shall be liable pursuant to Section 9.03(a) shall not exceed the Cap (except for any Losses on the part of a Stockholder Indemnitee claiming indemnification hereunder resulting from Fraud, intentional misrepresentations and intentional misconduct, which shall not be subject to the Cap).
(c) 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 Notwithstanding anything to the breach or alleged breach of this Agreementcontrary herein, or diminution of value or any damages based on any type of multiple.
(di) Seller the limitations set forth in Section 9.04(a) and Section 9.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation, (ii) the aggregate amount of all Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Fundamental Representation, for which Stockholders shall be liable pursuant to Section 9.02(a), or for which Parent shall be liable pursuant to Section 9.03(a), shall not exceed one hundred percent (100%) of the representations Actual Closing Merger Consideration, (iii) in no event shall the Stockholders’ liability pursuant to Article VI and this Article IX exceed the value (as if such amounts were all received as of Closing) of the Actual Closing Merger Consideration that the Stockholders actually receive, and (iv) in no event shall any Stockholder’s liability pursuant to Article VI or warranties this Article IX exceed the value (as if such amounts were all received as of Seller Closing) of its Pro Rata Share of the Actual Closing Merger Consideration that such Stockholder actually received.
(d) For purposes of this Section 9.04, in determining the existence of an inaccuracy in or a breach of any representation or warranty and for purposes of calculating the amount of any Losses with respect to any inaccuracy in or breach of any representation or warranty, the amount of such Losses shall 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 indemnification payment required under this Article IX shall be adjusted for the amount of any Losses that are actually recovered from any insurance proceeds (net of cost of enforcement and collection of insurance proceeds and deductibles and increases in insurance premiums) and any indemnity, contribution or similar payment received by the Indemnified Party in respect of any such Losses. Each party shall use commercially reasonable efforts to assert a claim where coverage for such claim may be available pursuant to applicable existing insurance policies; provided, that neither Parent Indemnitees nor Stockholder Indemnitees will have any obligation to have any claims under such insurance policies finally resolved prior to making a claim for indemnification hereunder.
(f) No party shall be entitled to (i) double recovery for any indemnifiable Losses even though such Losses may have resulted from the breach of more than one of the representations, warranties, agreements and covenants in this Agreement if Buyer had knowledge of such inaccuracy or breach prior (ii) recover any Losses with respect to Excluded Taxes or, without duplication, any amounts to the Closingextent such amounts were treated as liabilities or were otherwise specifically taken into account in computing the Total Merger Consideration.
(g) Nothing in this Agreement is intended to limit any obligation under applicable Law with respect to mitigation of damages.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 9.02 and Section 6.02 9.03 shall be subject to the following limitations:
(a) The Indemnifying Party Except as otherwise expressly set forth herein, Sellers shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a9.02(a) and Section 6.02(a), as the case may be, or 9.02(b) until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a9.02(a) or Section 6.02(b), as the case may be, 9.02(b) exceeds 100% of the Purchase Price $250,000.00 (the "Deductible"“Basket”), in which event the Indemnifying Party Sellers shall only be required to pay or be liable for any such Losses in excess of the DeductibleBasket. Representations and warranties in ARTICLE IV that are qualified by the terms “material” or “Material Adverse Effect”, or other terms of similar impact or effect, other than the representations and warranties in Section 4.13(b) in which such terms shall remain in effect and shall not be read as if such words were deleted, shall be read without regard to such terms (i.e., as if such words were deleted from such representation or warranty), and if the Losses in respect of any breach of any such representation and warranty (as so modified) do not exceed $25,000.00, such Losses will not count toward the Basket or otherwise be indemnified; provided that, if the aggregate amount of all such Losses exceeds $100,000.00, then only such Losses in excess of $100,000.00 shall count toward the Basket, and towards indemnification of Losses once the Basket is exceeded. Notwithstanding anything in this Agreement to the contrary, Losses arising from Seller’s breach of any Fundamental Representation or Section 4.22, or Section 6.06, or Buyer’s payment of a Specified Seller Liability, or which arise as a result of any Special Environmental Losses, shall not be subject to the Basket or any other limitation set forth in this Section 9.04(a).
(b) The Buyer shall not be liable to the Seller Indemnities for indemnification under Section 9.03(a) until the aggregate amount of all Losses for in respect of indemnification under Section 9.03(a) with regard to breaches of the representations set forth in Sections 5.03 and 5.05 exceeds the Basket, in which an Indemnifying Party event Buyer shall only be liable pursuant to Section 6.01(a) or Section 6.02(a), as the case may be, shall not exceed 150% for any such Losses in excess of the Purchase PriceBasket.
(c) In no event Except as otherwise expressly set forth herein, the aggregate amount of Losses required to be paid by Sellers pursuant to Section 7.03 and Sections 9.02(a) and 9.02(b) shall not exceed an aggregate amount equal to (i) the Escrow Amount plus (ii) the Buyer Stock that was issued to Health KP, LLC pursuant to the Securities Purchase Agreement, dated August 1, 2014, between Health KP, LLC and Buyer (the “Cap”). Notwithstanding the foregoing, Losses arising from either Seller’s breach of any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, consequential, specialFundamental Representation or Section 6.06, or indirect damagesBuyer’s payment of a Specified Seller Liability, including loss of future revenue or income, loss of business reputation or opportunity relating shall not be subject to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multipleCap.
(d) Seller shall not be liable under For all purposes of this ARTICLE VI for IX, Losses shall be net of any Losses based upon third party insurance proceeds or any indemnity, contributions or other similar payment actually paid to the Indemnified Party or its Affiliates in connection with the facts giving right to the right of indemnification. For the avoidance of doubt, an Indemnified Party shall be under no obligation to mitigate such Indemnified Party’s Losses.
(e) In any case where a Buyer Indemnitee recovers from third Persons any amount in respect of a matter with respect to which Sellers have made an indemnification payment to such Buyer Indemnitee pursuant to this Agreement, such Buyer Indemnitee shall promptly pay over to Sellers the amount so recovered (after deducting therefrom the full amount of the expenses incurred by the Buyer Indemnitee in procuring such recovery), and any amount expended by Sellers in pursuing or defending any claim arising out of any inaccuracy such matter, but not in or breach of any excess of the representations amount of the indemnification payment previously paid by Sellers to or warranties of Seller contained in this Agreement if Buyer had knowledge on behalf of such inaccuracy Buyer Indemnitee in respect of such matter.
(f) Notwithstanding anything herein to the contrary, if after the six (6) month anniversary of the Closing Date, Buyer continues to use any advertising, labeling or breach other marketing materials that are substantially the same as any advertising, labeling or other marketing materials used by the Company or its Subsidiaries prior to the Closing, Buyer shall not have the right to bring any indemnification claim or other claim in respect of such advertising, labeling or other marketing materials.
(g) No party shall have any liability under any provision of this Agreement for any punitive, consequential or special damages (including loss of profit or revenue or any multiple of earnings or revenue), except to the extent such damages are payable pursuant to a Third Party Claim.
(h) For the purposes of clarity, to the extent that Sellers do not deliver to Buyer 100% of their outstanding Units and Management Incentive Units, Buyer’s sole remedy shall be as set forth in Section 8(c) of the Option Agreement.
Appears in 1 contract
Sources: Unit Purchase Agreement (Twinlab Consolidated Holdings, Inc.)
Certain Limitations. The party making a claim under this 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 6.01 8.02 and Section 6.02 8.03 shall be subject to the following limitations:
(a) The Indemnifying Party Selling Holders and Ultimate Owner shall not be liable to the Indemnified Party Buyer Indemnitees for indemnification under Section 6.01(a8.02(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a8.02(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $100,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Selling Holders and Ultimate Owner shall only be required to pay or be liable for all such Losses in excess of that exceed the Deductible.
(b) Basket. The aggregate amount of all Losses for which an Indemnifying Party the Selling Holders and Ultimate Owner shall be liable pursuant to Section 6.01(a8.02(a) or Section 6.02(a), as the case may be, shall not exceed 150% of the Purchase PricePrice (the “Cap”).
(b) Buyer shall not be liable to the Seller 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 that exceed the Basket. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall not exceed the Cap.
(c) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveNotwithstanding the foregoing, 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.
(dlimitations set forth in Section 8.04(a) Seller and Section 8.04(b) shall not be liable under this ARTICLE VI for any apply to Losses based upon or upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 3.01, Section 3.03, Section 3.19, Section 3.20, Section 3.24, Section 4.01 and Section 4.04.
(d) For purposes of the representations this Article VIII, any inaccuracy in or warranties breach of Seller any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in this Agreement if Buyer had knowledge of or otherwise applicable to such inaccuracy representation or breach prior to the Closingwarranty.
Appears in 1 contract
Certain Limitations. The party making a claim under this 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 6.01 9.2 and Section 6.02 9.3 shall be subject to the following limitations:
(a) The Indemnifying Party Transferors shall not be liable to the Indemnified Party Acquiror Indemnitees for indemnification under Section 6.01(a9.2(a) and Section 6.02(a), as the case may be, until the aggregate amount of all Losses in respect of indemnification under Section 6.01(a9.2(a) or Section 6.02(b), as the case may be, exceeds 100% of the Purchase Price $25,000 (the "Deductible"“Basket”), in which event the Indemnifying Party Transferors shall only be required to pay or be liable for all Losses in respect of indemnification under Section 9.2(a) in excess of the Deductible.
(b) Basket. The aggregate amount of all Losses for which an Indemnifying Party the Transferors shall be liable pursuant to Section 6.01(a9.2(a) or Section 6.02(a), as the case may be, shall not exceed 150% $250,000 (the “Cap”). Except for claims based on fraud, intentional misrepresentation or intentional breach, the Transferors shall not have liability pursuant to Section 9.2 in an aggregate amount greater than the Purchase Price.
(b) Acquiror shall not be liable to the Transferor Indemnitees for indemnification under Section 9.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.3(a) exceeds the Basket, in which event Acquiror shall be liable for all Losses in respect of indemnification under Section 9.3(a) in excess of the Basket. The aggregate amount of all Losses for which Acquiror shall be liable pursuant to Section 9.3(a) shall not exceed the Cap. Except for claims based on fraud, intentional misrepresentation or intentional breach, Acquiror shall not have liability pursuant to Section 9.3 in an aggregate amount greater than the Purchase Price.
(c) In no event Notwithstanding the foregoing, neither the Basket nor the Cap shall any Indemnifying Party be liable apply to any Indemnified Party for any punitiveindemnification claims based upon, incidentalarising out of, consequentialwith respect to, special, or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the or by reason of any breach of a Fundamental Representation or claims based on fraud, intentional misrepresentation or intentional breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multipleclaim with respect to Taxes.
(d) 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 had knowledge of such inaccuracy or breach prior to the Closing.
Appears in 1 contract
Sources: Stock Acquisition Agreement (Optimus Healthcare Services, Inc.)