Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement. (b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement. (c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants. (d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement. (e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter. (f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded. (g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
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Certain Limitations. The indemnification provided for in Section 10.2 and Section 10.3 shall be subject to the following limitations:
(a) Except Sellers shall not be liable to the Buyer Indemnitees for claims arising from Intentional Fraudindemnification under Section 10.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 10.2(a) exceeds $100,000 (the “Basket”), criminal activity in which event Sellers shall only be required to pay or willful breaches be liable for Losses in excess of covenants, any Damages the Basket. The aggregate amount of all Losses for which the Seller shall Sellers may be liable pursuant to Section 7.2(a)(i10.2(a) shall be satisfied solely by recovery by Buyer under not exceed fifteen percent (15%) of the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered Purchase Price actually received by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 Sellers (the “Cap”); provided that such limitation shall not apply to any such Losses (i) with respect to breaches of Company Fundamental Reps, for which the maximum amount recoverable by the Buyer Indemnitees shall be limited to the Purchase Price actually received by the Sellers and (ii) with respect to breaches of the Seller shall have no liability Intellectual Property Reps, for indemnification under Section 7.2(a)(i) unless and until which the aggregate maximum amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts recoverable by the Buyer Indemnified Persons Indemnitees shall be limited to seek recovery thereunder and comply with thirty percent (30%) of the terms and conditions thereof (including Purchase Price actually received by the deductible provided Sellers. The aggregate Liability of a particular Seller in respect of any Loss for therein, which such Seller indemnifies the coverage limit being exceeded or coverage being denied), up Buyer Indemnitees pursuant to Section 10.2 shall not exceed an amount equal to the Purchase Price actually received by the such Seller pursuant to this Agreement.
(b) Notwithstanding anything Buyer shall not be liable to the contrary hereinSeller 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, except in which event Buyer shall only be required to pay or be liable for Damages resulting from Intentional Fraud, criminal activity or willful Losses in excess of the Basket. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 10.3(a) shall not exceed the Cap; provided that such limitation shall not apply to any such Losses with respect to breaches of covenantsBuyer Fundamental Reps, for which the maximum amount recoverable by any Seller Indemnitee shall be limited to the Purchase Price actually received by such Seller.
(c) For purposes of calculating the monetary amount of Losses for which any Legal Action may be made against any Indemnifying Party, (i) the aggregate liability amount of the Seller for all Damages under Section 7.2(a) any Losses corresponding to any inaccuracy in or breach of any representation or warranty shall not exceed the aggregate Purchase Price actually received by the Seller pursuant be determined without regard to this Agreementany materiality, and Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty, (ii) the aggregate liability there shall be no duplication of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid recovery by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result reason of the applicable state of facts giving rise to such Losses constituting a breach of a more than one representation, warranty, covenant or agreement hereunder, (ii) and no Indemnified Party will be entitled to indemnification or reimbursement under any provision of this Agreement for any amount to the extent such Indemnified Party or its Affiliate has received indemnification payments for or been reimbursed for such amount under any other provision of this Agreement or any other document executed in connection with this Agreement (i.e., no double recovery)) and (iii) such monetary amount shall be decreased to the extent of any amounts actually recovered by a third party (including a Governmental Body) from an Indemnified PersonParty under applicable insurance policies. Each Indemnified Party agrees that it shall, and cause its Affiliates to, use commercially reasonable efforts to (x) make or cause to be made all reasonable claims for insurance under insurance policies that may be applicable to the matter giving rise to the indemnification claim hereunder, and (iiiy) in the mitigate any Losses after becoming aware of such Losses or any event of Intentional Fraud, criminal activity or willful breaches of covenantscondition that could reasonably be expected to give rise to any such Losses.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII Except with respect to an action for which specific performance is sought (and solely to the extent such action seeks such relief), each Party acknowledges and agrees that its sole and exclusive remedy with respect to all claims relating to any claim breach, inaccuracy, or group nonfulfillment of related claims any representation, warranty, covenant or agreement in this Agreement or otherwise relating to the transactions contemplated hereby shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties in accordance with, and limited by, the indemnification provisions set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled ARTICLE X. In furtherance of the foregoing, except with respect to indemnification Section 12.11, each Party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement (i) in respect it may have against the other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Damages Law, except pursuant to the extent such Damages were taken into account indemnification provisions set forth in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.this ARTICLE X.
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Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except Seller and EcoArk shall not be liable to the Buyer Indemnitees for claims arising indemnification under Section 8.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) exceeds $50,000 (the "Basket"), in which event Seller and EcoArk shall be required to pay or be liable for all such Losses from Intentional Fraud, criminal activity or willful breaches the first dollar. The aggregate amount of covenants, any Damages all Losses for which the Seller and EcoArk shall be liable pursuant to Section 7.2(a)(i8.02(a) shall not exceed $500,000 (the "Cap").
(b) Seller and EcoArk shall not be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i8.02 where the Losses are the result of (i) unless acts, actions or inaction of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and/or ▇▇▇ ▇▇▇▇ prior to the Closing 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) 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 Damages exceeds $250,000 (Losses from the “Indemnification Deductible”); 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 provided further that in the case Section 8.04(c) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Company Fundamental Representationrepresentation or warranty in Section 4.01, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder Section 4.02, Section 4.08, Section 4.14, Section 4.16, Section 4.17, Section 5.01, Section 5.02 and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants5.04.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been this Article VIII, any misrepresentation inaccuracy in or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating shall be determined without regard to or referring to the terms “material”any materiality, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover Effect or other Tax asset similar qualification contained in or liability of the Acquired Companies in any taxable period (otherwise applicable to such representation or portion thereof) beginning after the Closingwarranty.
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Certain Limitations. The liability of the Seller or the Buyer, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except for claims arising from Intentional FraudAt any time after the Survival Date, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable have no further obligations under this Article 10 for breaches of representations and warranties of the Seller, except for Damages with respect to which the Buyer Indemnified Persons for Indemnitee has given the Seller written notice prior to such Damages pursuant to date in accordance with Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), 10.4 and (ii) the Seller Buyer shall have no liability further obligations under this Article 10 for indemnification under Section 7.2(a)(i) unless breaches of representations and until warranties of the aggregate amount of such Buyer, except for Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, with respect to which the Seller shall be directly liable to Indemnitee has given the Buyer Indemnified Persons written notice prior to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply date in accordance with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementSection 10.4.
(b) Notwithstanding anything to the contrary herein, except for The amount of Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, otherwise recoverable under this Article 10 shall be (i) reduced to the aggregate liability extent to which any Federal, state, local or foreign tax liabilities of the Seller for all Damages Indemnitee or the Buyer Indemnitee, as applicable, or any of its Affiliates is decreased by reason of any Damage in respect of which such Seller Indemnitee or Buyer Indemnitee, as applicable, shall be entitled to indemnity under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, Agreement and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value increased to the extent that such diminution to which any Federal, state, local or foreign tax liabilities are incurred by the Seller Indemnitee or the Buyer Indemnitee, as applicable, or any of value is the probable and reasonably foreseeable its Affiliates as a result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation receipt of the Final Closing Working Capitalindemnity so that, Company Indebtedness after any such decrease or Company Transaction Expensesincrease, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability position of the Acquired Companies in indemnified party is the same on an after tax basis as it would have been had there been neither any taxable period (tax benefit nor any tax cost associated with either the Damage or portion thereof) beginning after the Closingindemnity.
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Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the 9.3.1 Seller shall not be liable pursuant required to Section 7.2(a)(i) shall be satisfied solely by recovery by indemnify Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller Indemnitees with respect to any claim for indemnification pursuant to Section 9.1.1 (excluding any such Damages, whether or not the entirety claim with respect to a breach of any such Damages is covered by Seller Fundamental Representation with respect to which the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that limits set forth in clauses (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) shall not apply): (i) for any Loss (or Losses relating to the Seller shall have no liability for indemnification under Section 7.2(a)(isame facts and circumstances) if the amount of such Loss is less than $100,000 (a “De Minimis Loss”); (ii) unless and until the aggregate amount of all such Damages Losses (excluding any De Minimis Loss) exceeds $250,000 (the “Indemnification Deductible”); and provided further that Deductible Amount, in the which case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall only be directly liable to responsible for the Buyer Indemnified Persons to amount of such Losses in excess of the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible Deductible Amount; provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) that the aggregate liability of the Seller for all Damages to Buyer Indemnitees under Section 7.2(a9.1.1 (excluding liability with respect to any breach of any Seller Fundamental Representation) shall not in no event exceed the Warranty Cap. The aggregate Purchase Price actually received by liability of Seller to Buyer Indemnitees under Section 9.1 shall in no event exceed the Cap.
9.3.2 Buyer shall not be required to indemnify Seller Indemnitees with respect to any claim for indemnification pursuant to this Agreement, Section 9.2.1 (excluding any such claim with respect to a breach of any Buyer Fundamental Representation with respect to which the limits set forth in clauses (i) and (ii) shall not apply): (i) for any De Minimis Loss; and (ii) unless and until the aggregate amount of all such Losses (excluding any De Minimis Loss) exceeds the Deductible Amount, in which case Buyer shall only be responsible for the amount of such Losses in excess of the Deductible Amount; provided that the aggregate liability of Buyer for all Damages to Seller under Section 7.2(b9.2.1 (excluding liability with respect to any Buyer Fundamental Representation) shall not in no event exceed the Warranty Cap. The aggregate Purchase Price actually paid by liability of Buyer to Seller Indemnitees under Section 9.2 shall in no event exceed the Buyer pursuant to this AgreementCap.
(c) The parties hereto expressly waive 9.3.3 Buyer shall not be entitled to indemnification for those portions of any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, Losses: (i) other than in connection with Section 9.1.3, reserved or accrued on the event financial statements or master book referred to in Section 3.7 in a manner that permits reasonable determination as to the portion of diminution such Loss reserved or accrued; (ii) that have arisen as a result of value any act or omission by Buyer or any of its Affiliates or Representatives on or after the Closing Date (including resulting from any change in their respective accounting principles, practices or methodologies and any Losses arising from any breach of its obligations under this Agreement), provided that the foregoing shall not preclude indemnification under Section 9.1.3 except to the extent that such diminution any Covered Taxes that would otherwise have been indemnifiable thereunder result from an action of value is the probable and reasonably foreseeable result Buyer that caused Taxes (other than Taxes described in clause (viii) of the applicable breach definition of Covered Taxes) that otherwise would have been in respect of a representation, warranty, covenant tax period beginning after the Closing Date (or agreement hereunder, (iithe portion of the Straddle Period beginning after the Closing Date) to the extent actually recovered be a Covered Tax (except if such action, in Buyers’ reasonable discretion, was required by a third party (including a Governmental Body) from an Indemnified Person, applicable Law); or (iii) that were taken into account (a) in respect of Taxes, in the event calculation of Intentional Fraud, criminal activity Quasi-Indebtedness or willful breaches Working Capital for purposes of covenants.
determining the Final Purchase Price (d) An Indemnified Person entitled except to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute the extent resulting from a breach of two Section 5.1.1(e)) or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (ib) in respect of any Damages other amount, in any adjustment to the extent such Damages were taken into account in Final Purchase Price pursuant to Section 2.4. For the calculation avoidance of the Final Closing Working Capitaldoubt, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase no Indemnified Party shall be disregardedcompensated more than once for the same Loss.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
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Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i9.2(a) unless with respect to breaches of its representations and warranties until the aggregate amount of such all Damages incurred by the Buyer Indemnified Parties exceeds $250,000 (the “Indemnification DeductibleDeductible Amount”); and provided further that , in the case of any inaccuracy in or breach of any Company Fundamental Representation, the which event Seller shall be directly liable to the Buyer Indemnified Persons for Damages only to the extent such Damages they are not covered by in excess of the Indemnification Insurance Policy for Deductible Amount; provided that none of the limitations in this Section 9.5(a) shall apply to (x) the Fundamental Representations, (y) Section 4.8 (Taxes) or (z) any reason other than the lack payment obligations in respect of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementTaxes.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the In no event shall Seller’s aggregate liability of the Seller for all Damages under Section 7.2(a9.2(a) and Section 9.2(b) exceed $13,000,000; provided that Seller’s aggregate liability under Section 9.2(a) in respect of a breach of all representations and warranties other than Fundamental Representations shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, lesser of (x) $6,000,000 and (iiy) the aggregate liability cash consideration received by Seller within a year after the Execution Date, including any Cash Consideration received and any cash realized from the sale of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementany Preferred Units or Common Units within such period.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of the indemnification obligations in this Article IX only, in determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefromin connection therewith, all qualifications any materiality, material adverse effect or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “Effect qualifiers in all material respects” such representations or any similar qualification, term or phrase warranties shall be disregarded.
(gd) The Parties are in agreement that where the same set of facts qualifies under more than one provision entitling Buyer or Seller makes no representations to a claim or warranties regarding remedy under this Agreement, Buyer or Seller, as applicable, shall only be entitled to be indemnified once in respect of such set of facts and shall not be entitled to double recovery hereunder. Notwithstanding the amount or availability foregoing, an Indemnified Party will be entitled to seek recovery under such provisions of any net operating lossthis Agreement that maximize its recovery (e.g., capital lossif particular losses would be subject to the Deductible Amount if a claim were made under one provision, tax credit carryover or other Tax asset or liability of but would not be subject to the Acquired Companies in any taxable period (or portion thereof) beginning after Deductible Amount if made under another provision, then the ClosingIndemnified Party may seek recovery under the provision that is not subject to the Deductible Amount).
Appears in 1 contract
Sources: Equity Capital Contribution Agreement (Stronghold Digital Mining, Inc.)
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller The Buyer Indemnitees shall not be liable entitled to indemnification pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller 12.3 with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability claim for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages all Losses incurred or sustained by, or imposed upon, the Buyer Indemnitees exceeds $250,000 1,000,000 (the “Indemnification Deductible”); and provided further that in . The aggregate amount of Losses for which the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller Buyer Indemnitees shall be directly liable entitled to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller indemnification pursuant to this AgreementArticle XII will not exceed the Indemnity Escrow Amount (the “Cap”). The Indemnity Escrow Amount then remaining in the Indemnity Escrow Account shall serve as the sole and exclusive source of payment of any claim for indemnification pursuant to Section 12.3. Notwithstanding the foregoing, neither the Deductible nor the Cap shall apply to any Losses resulting from Fraud.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid No individual Losses may be claimed by the Buyer Indemnitees with respect to any claim for indemnification pursuant to this AgreementSection 12.3, unless the amount of such Losses, together with all other Losses arising out of the same facts and circumstances, exceeds $50,000 (the “De Minimus Basket”) (and such Losses that are less than the De Minimus Basket shall apply towards satisfaction of the Deductible). Notwithstanding the foregoing, the De Minimus Basket shall not apply to any Losses resulting from Fraud.
(c) The parties hereto expressly waive No Buyer Indemnitee shall be entitled to indemnification for any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value Losses to the extent that such diminution of value is matter was included or reflected in the probable and reasonably foreseeable result determination of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Date Net Working Capital, Company Indebtedness or Closing Date Funded Debt, Closing Date Cash and Closing Date Unpaid Company Transaction ExpensesExpenses and the resulting Adjustment Amount derived therefrom in accordance with Section 3.4(d), or (ii) such that a Buyer Indemnitee would have already been compensated for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterLosses.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Meritor Inc)
Certain Limitations. The party making a claim under this Article VII is referred to as the "Indemnified Party", and the party against whom such claims are asserted under this Article VII is referred to as the "Indemnifying Party". The indemnification provided for in Section 7.02 shall be subject to the following limitations:
(a) Except The Indemnifying Party shall not be liable to the Indemnified Party for claims indemnification for an Ordinary Breach Claim until the aggregate amount of all claimed Losses in respect of Ordinary Breach Claims exceeds $1,000,000 (the “Threshold”), in which event the Indemnifying Party be required to pay or be liable for all such Losses from the first dollar thereof. With respect to any Ordinary Breach Claim, the Indemnifying Party shall not be liable for any individual or series of related Losses which do not exceed $50,000 (which Losses shall, not be counted toward the Threshold).
(b) The aggregate amount of all Losses arising from Intentional Fraud, criminal activity or willful breaches out of covenants, any Damages Ordinary Breach Claims for which the Seller an Indemnifying Party shall be liable pursuant to Section 7.2(a)(i) 7.02 shall be satisfied solely not exceed the Indemnity Escrow Amount and in no event shall the aggregate of all indemnification amounts paid by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety for Losses arising out of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided Ordinary Breach Claims hereunder exceed that (i) the Seller shall be directly liable to the Buyer Indemnified Persons amount. Any indemnity payments for such Damages Losses due pursuant to Section 7.2(a)(i) 7.02 shall be made first from the Indemnity Escrow Amount in excess accordance with the terms of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”)Escrow Agreement and then, and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages Losses exceed the remaining Indemnity Escrow Amount and do not arise from Ordinary Breach Claims, directly by Seller; provided, however, that to the extent any amounts are not covered by released from the Indemnification Insurance Policy for any reason escrow account and deducted from the Indemnity Escrow Amount with respect to claims other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for thereinOrdinary Breach Claims, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) such released amounts shall not exceed reduce the aggregate Purchase Price actually received by the Seller pursuant amount that Buyer may recover with respect to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
Ordinary Breach Claims. ACTIVE 209289734v.13 (c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification Payments by an Indemnifying Person Party pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) Section 7.02 in respect of any Damages Loss shall be limited to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications liability or exception in damage that remains after deducting therefrom any representation or warranty relating to or referring to insurance proceeds (excluding the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability proceeds of any net operating lossinsurance policy issued or underwritten by the Indemnified Party or its Affiliates) and any indemnity, capital loss, tax credit carryover contribution or other Tax asset similar payment received by the Indemnified Party in respect of any such claim, offset by the net present value of any resulting premium increases and net of any collection costs; provided, that nothing in this Agreement shall require an Indemnified Party to pursue payments under insurance policies or liability of the Acquired Companies in any taxable period (indemnity, contribution or portion thereof) beginning after the Closingother similar agreements.
Appears in 1 contract
Certain Limitations. Notwithstanding anything in this Agreement to the contrary,
(a) Except for claims arising from Intentional Fraud, criminal activity no party shall indemnify or willful breaches of covenants, any Damages for which the Seller shall otherwise be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller any other party with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy claim for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, 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 Purchaser for any breach of a representation or warranty, covenant or agreement hereunderunless the Losses of the Purchaser from all such breaches exceed in the aggregate Twenty-Five Thousand Dollars ($25,000), in which event the Seller shall be required to indemnify the Purchaser for all such Losses (ii) subject to the extent actually recovered by other limitations in this Agreement);
(c) the Purchaser shall not be required to indemnify or otherwise be liable to the Seller for any breach of a third party (including a Governmental Body) representation or warranty unless the Losses of the Seller from an Indemnified Person, or (iii) all such breaches exceed in the aggregate Twenty-Five Thousand Dollars ($25,000), in which event of Intentional Fraud, criminal activity or willful breaches of covenants.the Purchaser shall be required to indemnify the Seller for all such Losses (subject to the other limitations in this Agreement);
(d) An Indemnified Person entitled the Seller shall not be required to indemnification by an Indemnifying Person 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 this Article VII with respect Section 2.2 plus the aggregate royalties paid to any claim or group the date of related claims shall only be entitled to recover once for such claim or group final determination of related claims notwithstanding liability (and it is understood that such claim or group of related claims may constitute a breach of two or more representations and/or warranties limitation does not apply to the indemnity set forth in this Agreement.Section 10.2(c));
(e) No Buyer Indemnified Person 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 Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) but not the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to Losses suffered by a Claimant for purposes of the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase foregoing provisions of this Section 10.5) shall be disregarded.determined on an after-tax basis, after giving effect to any tax benefit arising from the incurring of any Loss and any tax detriment arising from the indemnification thereof;
(g) Seller makes no representations or warranties regarding the amount or availability indemnification of Losses under this Agreement shall be net of any net operating lossinsurance proceeds actually paid to the Claimant with respect to the event giving rise to such Loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in but no Claimant shall have any taxable period (or portion thereof) beginning after the Closingobligation under this Agreement to make any claim under any insurance policy that may be applicable to such event.
Appears in 1 contract
Certain Limitations. The liability of Sellers or Buyers, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except for claims arising from Intentional FraudDamages shall in no event include any special, criminal activity indirect, punitive, incidental, or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementconsequential damages whatsoever.
(b) Notwithstanding anything The parties mutually agree, for tax purposes, to the contrary herein, except for treat Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability recovered hereunder as an adjustment of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementPrice.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type amount of multiple, except, in each case, (i) in the event of diminution of value Damages otherwise recoverable under this Article 6 shall be reduced to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representationto which any federal, warrantystate, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Personlocal, or (iii) foreign tax liabilities of Seller Indemnitee or Buyer Indemnitee, as applicable, or any of their respective Affiliates is decreased by reason of any Damage in the event respect of Intentional Fraudwhich such Seller Indemnitee or Buyer Indemnitee, criminal activity or willful breaches of covenantsas applicable, shall be entitled to indemnity under this Agreement.
(d) An Indemnified Person No claim or claims shall be asserted by a Buyer Indemnitee against either Seller or both of them pursuant to the provisions of this Article 6 unless and until the amount of such indemnitee's Damages exceeds U.S. $100,000 (One Hundred Thousand U.S. Dollars) in the aggregate against either Seller or both of them, whereupon such Buyer Indemnitee shall be entitled to indemnification by an Indemnifying Person pursuant assert one or more claims hereunder for the full amount of its Damages as to which such claim or claims are asserted, without deduction of any amount therefrom. The limitation set forth in this Article VII with respect Section 6.4(d) shall not apply to any claim or group for Damages arising out of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more the representations and/or and warranties set forth in Sections 2.1.5 and 2.2.5 of this Agreement.
(e) No The aggregate amount of Damages recoverable pursuant to the provisions of Section 6.1.1 of this Article 6 by all Buyer Indemnified Person Indemnitees against Arcadia II shall be entitled limited to indemnification under the Purchase Price. The aggregate amount of Damages recoverable pursuant to the provisions of Section 6.1.2 of this Article 6 by all Buyer Indemnitees against Arcadia III shall be limited to the portion of the Purchase Price paid to Arcadia III. For the avoidance of doubt, in no event may the aggregate amount of Damages recoverable pursuant to this Agreement (i) in respect of any Damages to by all Buyer Indemnitees against the extent such Damages were taken into account in Sellers be greater than the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterPurchase Price.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. Notwithstanding anything in this Agreement to the contrary,
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the neither Seller shall be liable pursuant required to Section 7.2(a)(i) shall indemnify or otherwise be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group arising from the failure of related claims shall only be entitled Sellers to recover once for obtain any Consent if the obtaining of such claim or group Consent was not a condition precedent to the obligations of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties Buyer set forth in this Agreement or the condition that such Consent be obtained was waived by Buyer;
(b) neither Seller shall be required to indemnify or otherwise be liable to Buyer for any breach of a representation or warranty, or for the breach of any covenant contained in Section 5 of this Agreement., except to the extent the losses, obligations, liabilities, costs, and expenses of Buyer arising from all such breaches by both Sellers exceed in the aggregate One Hundred Thousand Dollars; it being understood that this limitation applies only to indemnification for breaches of representations and warranties and breaches of covenants contained in Section 5 and does not apply to other indemnification rights, including the right to indemnification for Excluded Liabilities, or to claims relating to the adjustments and prorations pursuant to Section 2.3(a);
(c) Buyer shall not be required to indemnify or otherwise be liable to any Seller for any breach of a representation or warranty, except to the extent the losses, obligations, liabilities, costs, and expenses of both Sellers arising from all such breaches by Buyer exceed in the aggregate One Hundred Thousand Dollars; it being understood that this limitation applies only to indemnification for breaches of representations and warranties and does not apply to other indemnification rights or to claims relating to the adjustments and prorations pursuant to Section 2.3(a);
(d) no party shall indemnify or otherwise be liable to any other party with respect to any claim for any breach of a representation or warranty, or for the breach of any covenant contained in Section 5 of this Agreement, unless notice of the claim is given within twelve months after the Closing Date; it being understood that this limitation applies only to indemnification for breaches of representations and warranties and breaches of covenants contained in Section 5 and does not apply to other indemnification rights, including the right to indemnification for Excluded Liabilities, or to claims relating to the adjustments and prorations pursuant to Section 2.3(a);
(e) No Buyer Indemnified Person neither Seller shall be entitled required to indemnification under this Agreement (i) in respect indemnify or otherwise be liable to Buyer for any breach of a representation or warranty, or for the breach of any Damages covenant contained in Section 5 of this Agreement, to the extent the losses, obligations, liabilities, costs, and expenses of Buyer arising from all such Damages were taken into account breaches by all Sellers exceed in the calculation aggregate Ten Million Dollars; it being understood that this limitation applies only to indemnification for breaches of representations and warranties and breaches of covenants contained in Section 5 and does not apply to other indemnification rights, including the Final Closing Working Capital, Company Indebtedness or Company Transaction Expensesright to indemnification for Excluded Liabilities, or (ii) for any Damages to claims relating to any matter the adjustments and prorations pursuant to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.Section 2.3(a); and
(f) For purposes of determining (i) whether there has been Buyer shall not be required to indemnify or otherwise be liable to any misrepresentation or Seller for any breach of a representation or warranty to the extent the losses, obligations, liabilities, costs, and (ii) expenses of all Sellers arising from all such breaches by Buyer exceed in the amount aggregate Ten Million Dollars; it being understood that this limitation applies only to indemnification for breaches of any Damages resulting therefrom, all qualifications representations and warranties and does not apply to other indemnification rights or exception in any representation or warranty to claims relating to or referring the adjustments and prorations pursuant to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedSection 2.3(a).
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Paxson Communications Corp)
Certain Limitations. The liability of the Vendors or Purchaser, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except for claims arising from Intentional FraudAt any time after the Survival Date, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller Vendors shall be directly liable to the Buyer Indemnified Persons have no further obligations under this Article XII for such Damages pursuant to Section 7.2(a)(i) in excess breaches of representations and warranties of the Indemnification Deductible up Vendors, except for Damages with respect to an amount not which the Purchaser Indemnitee has given the Vendor written notice prior to exceed $250,000 (the “Cap”), such date in accordance with Section 11.1 above; and (ii) the Seller Purchaser shall have no liability further obligations under this Article XII for indemnification under breaches of representations and warranties of the Purchaser, except for Damages with respect to which the Vendors Indemnitee has given the Purchaser written notice prior to such date in accordance with Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement11.1.
(b) Notwithstanding anything to the contrary herein, except for Purchaser Indemnitees shall not be entitled to recover Damages resulting from Intentional Fraud, criminal activity or willful breaches Vendors pursuant to Section 12.1(a) unless and until the accumulated aggregate amount of covenants, Damages shall exceed an amount which is the equivalent of E 100,000 (ione hundred thousand Euro) (the aggregate liability "VENDOR INDEMNIFICATION THRESHOLD"). Vendors shall thereafter indemnify any of the Seller for Purchaser Indemnitees from all and against all Damages under Section 7.2(ain excess of equivalent E 100,000. For the avoidance of doubt, the limitations in this sub-section (b) set forth shall not exceed the aggregate Purchase Price actually received be applicable to any payments to be made by the Seller PCE to Purchaser pursuant to this Agreement, the provisions of Section 2.3 (Minimum NOI Payments) and Section 2.6 (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementPecs Lease Expiry Payments).
(c) The parties hereto expressly waive any claim Notwithstanding anything to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type the contrary herein but subject to the last sentence of multiple, exceptthis paragraph, in each casethe absence of fraud or willful breach of this Agreement (for which there shall be no limitation), in no event shall the maximum aggregate liability of Vendors in respect of any claims by the Purchaser Indemnitees against Vendors pursuant to Section 12.1(a) for Damages suffered or incurred by any Purchaser Indemnitee exceed the maximum amount of E 15,000,000. However : (i) in the event that Purchaser shall elect to join additional purchasers as parties to this Agreement as contemplated in Section 2.10 above, then and in such event the maximum amount in respect of diminution which indemnity may be claimed by all four purchasing entities and all and any Purchaser Indemnitees shall not exceed the total amount of value to E 15,000,000 in the extent that such diminution of value is the probable aggregate; and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event that Vendors shall fail to obtain the Klepierre Waiver, and/or in the event that this Agreement is declared void ab initio by reason of Intentional Frauda violation of the rights of the Klepierre Group in respect of the acquisition of the Transaction Companies and/or the Portfolio Centers, criminal activity then and in such event the maximum aggregate liability of Vendors in respect of any claims by the Purchaser Indemnitees against Vendors pursuant to Section 12.1(a) for Damages suffered or willful breaches incurred by any Purchaser Indemnitee pursuant to a breach of covenantsSection 4.8 shall not exceed a maximum amount equal to the Final Purchase Price, or the amount actually paid by Purchaser to Vendor on account of the Final Purchase Price, whichever be the lower amount, plus any actual and proven damages suffered by Purchaser in excess of that amount in consequence of this Agreement having been declared void as a result of that fact.
(d) An Indemnified Person entitled Notwithstanding anything to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims the contrary herein, Vendor Indemnitees shall only not be entitled to recover once for such claim or group Damages from Purchaser unless and until the accumulated aggregate amount of related claims notwithstanding that such claim or group Damages shall exceed an amount which is the equivalent of related claims may constitute a breach E 100,000 (one hundred thousand Euro) (the "PURCHASER INDEMNIFICATION THRESHOLD"). Purchaser shall thereafter indemnify any of two or more representations and/or warranties set forth the Vendors' Indemnitees from all and against all Damages in this Agreementexcess of equivalent E 100,000.
(e) No Buyer Indemnified Person Notwithstanding anything to the contrary herein, in no event shall be entitled to indemnification under this Agreement (i) the maximum aggregate liability of Purchaser in respect of any Damages claims by the Vendors Indemnitees against Purchaser pursuant to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (iiSection 12.2(a) for Damages suffered or incurred by any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterVendors Indemnitees exceed E 15,000,000.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except The Company Holders shall not be liable to the Parent Indemnitees for claims arising indemnification under Section 8.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) exceeds $92,500 (the “Basket”), in which event the Company Holders shall be required to pay or be liable for all such Losses from Intentional Fraud, criminal activity or willful breaches the first dollar. The aggregate amount of covenants, any Damages all Losses for which the Seller Company Holders shall be liable pursuant to Section 7.2(a)(i8.02(a) shall be satisfied solely by recovery by Buyer under not exceed the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 Holdback Amount (the “Cap”), and .
(iib) The Parent shall not be liable to the Seller shall have no liability Company Holder Indemnitees for indemnification under Section 7.2(a)(i8.03(a) unless and until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Basket, in which event the Parent shall be required to pay or be liable for all such Damages exceeds $250,000 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) Notwithstanding the “Indemnification Deductible”); foregoing, the limitations set forth in Section 8.04(a) and provided further that in the case Section 8.04(b) 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 Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(bd) Notwithstanding anything to the contrary hereincontained in this Agreement, except with respect to claims for Damages resulting from Intentional Fraudequitable remedies, criminal activity and claims based on fraud or willful breaches breach or intentional misrepresentation, payment from the Holdback Amount shall be the sole and exclusive source of covenantsrecovery by the Parent Indemnitees. Except for indemnifiable Losses arising directly from a Company Holder’s own fraud, (i) the aggregate liability of the Seller each Company Holder for all Damages under Section 7.2(a) indemnifiable Losses pursuant to this Article VIII or Article VI shall not exceed the aggregate Purchase Price actually received by amount of the Seller pursuant total Merger Consideration payable to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) such Company Holder. Except in the event case of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable indemnifiable Losses arising directly as a result of the applicable fraud or willful breach of a representationor intentional misrepresentation committed by such Company Holder, warranty, covenant or agreement hereunder, (ii) any payment required to the extent actually recovered be made by a third party (including a Governmental Body) Company Holder under this Agreement shall be made from an Indemnified Person, or (iii) in such Company’s Holder’s share of the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this AgreementHoldback Amount.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been this ARTICLE VIII, any misrepresentation inaccuracy in or breach of a any representation or warranty and (ii) the amount of any Damages resulting therefromLosses incurred or suffered in connection with such breach or inaccuracy shall be determined without regard to any materiality, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset similar qualification contained in or liability of the Acquired Companies in any taxable period (otherwise applicable to such representation or portion thereof) beginning after the Closingwarranty.
Appears in 1 contract
Sources: Merger Agreement (VNUE, Inc.)
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller Nothing in this Agreement shall be liable pursuant deemed to Section 7.2(a)(i) require any Sublessor Entity to indemnify any TowerCo Indemnitee for or in respect of any of the Real Estate Representations. Without limiting the generality of the foregoing, the sole remedies of TowerCo or TowerCo Parent in respect of a breach of any Real Estate Representation by any Sublessor Entity shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that cause (i) such Sublessor Entity to continue to use reasonable efforts to cure such breach, as contemplated by Section 4.5, until the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”)Final Closing Date, and or (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until Site as to which such Real Estate Representation is breached to be, at the aggregate amount applicable Sublessor Entity's election, an Excluded Site or to defer the Closing of such Damages exceeds $250,000 (Site to a later Closing Date, provided that the “Indemnification Deductible”); and provided further that in the case failure of any inaccuracy in such deferred Site to become an Included Site on or breach of any Company Fundamental Representation, the Seller shall be directly liable prior to the Buyer Indemnified Persons to the extent such Damages are Final Closing shall not covered by the Indemnification Insurance Policy for constitute a default under this Agreement or give TowerCo Parent or TowerCo any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementremedy.
(b) Notwithstanding anything to the contrary contained herein, except for Damages resulting from Intentional Fraudno Sublessor Entity shall have any obligation under this Section 13 to TowerCo Indemnitees with respect to the breach of representations, criminal activity warranties, covenants or willful breaches of covenantsagreements by SBCW, (i) unless, until and only to the extent that the aggregate liability of all TowerCo Indemnified Losses from all such breaches exceeds on a cumulative basis one percent (1%) of the Seller aggregate amount of all Rent having been paid to SBCW or any other Sublessor Entity under the Sublease as of the date on which the claim for all Damages under Section 7.2(a) shall not exceed indemnification arose (the aggregate Purchase Price actually received by the Seller pursuant to this Agreement"Deductible Amount"), and (ii) then only to the aggregate liability extent of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementsuch excess amount.
(c) The parties hereto expressly waive any claim Anything in this Agreement to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptthe contrary notwithstanding, in each case, (i) in the no event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to shall any Sublessor Entity be liable under this Agreement for any indemnification by an Indemnifying Person obligation pursuant to this Article VII with respect to any claim or group Section 13 in excess of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation 25% of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the aggregate amount of any Damages resulting therefrom, all qualifications the Rent having been paid to SBCW or exception in any representation or warranty relating to or referring to such Sublessor Entity under the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability SBCW Sublease on account of the Acquired Companies in any taxable period Site(s) owned by such Sublessor Entity as of the date on which the claim for indemnification arose (or portion thereof) beginning after the Closing"Maximum Indemnification").
Appears in 1 contract
Certain Limitations. The liability of the Vendors or Buyers, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except for claims arising from Intentional FraudAt any time after the Survival Date, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller Vendors shall be directly liable to the Buyer Indemnified Persons have no further obligations under this Article XII for such Damages pursuant to Section 7.2(a)(i) in excess breaches of representations and warranties of the Indemnification Deductible up Vendors, except for Damages with respect to an amount not which the Buyers Indemnitee has given the Vendor written notice prior to exceed $250,000 (the “Cap”), such date in accordance with Section 12.3 above; and (ii) the Seller Buyers shall have no liability further obligations under this Article XII for indemnification under breaches of representations and warranties of the Buyers, except for Damages with respect to which the Vendors Indemnitee has given the Buyers written notice prior to such date in accordance with Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement12.3.
(b) Notwithstanding anything to the contrary herein, except for Buyers Indemnitees shall not be entitled to recover Damages resulting from Intentional FraudVendors pursuant to Section 12.1(a) unless and until the accumulated aggregate amount of Damages shall exceed an amount which is the equivalent of E 150,000 (the "VENDOR INDEMNIFICATION THRESHOLD"); provided, criminal activity or willful breaches of covenantshowever, (i) that at such time as the aggregate liability amount of Damages in respect of the Seller for all Damages under Section 7.2(a) indemnity obligations of Vendors shall not exceed the aggregate Purchase Price actually received by Vendors Indemnification Threshold, Vendors shall thereafter indemnify any of the Seller pursuant to this Agreement, Buyers Indemnitees from all and (ii) the aggregate liability against all Damage in excess of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementequivalent E 10,000.
(c) The parties hereto expressly waive any claim Notwithstanding anything to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptthe contrary herein, in each case, (i) in the event absence of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable fraud or willful breach of a representationthis Agreement (for which there shall be no limitation), warranty, covenant in no event shall the maximum aggregate liability of Vendors in respect of any claims by the Buyers Indemnitees against Vendors pursuant to Section 12.1(a) for Damages suffered or agreement hereunder, (ii) to incurred by any Buyers Indemnitee exceed the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event maximum amount of Intentional Fraud, criminal activity or willful breaches of covenantsE 100,000,000.
(d) An Indemnified Person entitled Notwithstanding anything to indemnification by an Indemnifying Person pursuant to this Article VII with respect to the contrary contained herein, any claim or group of related claims shall only be entitled for indemnity made by any Buyer Indemnitee relating to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages Taxes is subject to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent condition that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.:
Appears in 1 contract
Sources: Framework Transaction Agreement (Elbit Medical Imaging LTD)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 will be subject to the following limitations:
(a) Except EWI and EWD will not be liable to the Buyer Indemnitees for claims arising from Intentional Fraudindemnification under Section 8.02(a) or under Section 8.02(a) of the Asset Purchase Agreement with respect to any representations or warranties of EWI or the Company hereunder or EWD under the Asset Purchase Agreement other than the Special Representations (as defined herein and in the Asset Purchase Agreement and excluding Section 3.15(c) and (d) which, criminal activity for the avoidance of doubt, will be subject to the Basket) until the aggregate amount of such Losses exceeds $75,000 (the “Basket”), in which event EWI and EWD will only be required to pay or willful breaches be liable for all such Losses in excess of covenants, any Damages the Basket.
(b) The aggregate amount of all Losses for which the Seller shall EWD and EWI will be liable pursuant to Section 7.2(a)(i8.02(a) shall be satisfied solely by recovery by Buyer under and Section 8.02(a) of the Indemnification Insurance Policy and Buyer Asset Purchase Agreement will have no recourse against not exceed the Seller following: (i) with respect to any such Damagesrepresentations or warranties of EWI or the Company hereunder or of EWD under the Asset Purchase Agreement other than the Special Representations (as defined herein and in the Asset Purchase Agreement), whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 2,500,000 (the “Cap”), and (ii) with respect to the Seller Special Representations (as defined herein and in the Asset Purchase Agreement), $17,000,000 and (iii) with respect to Post-Closing Events hereunder and all “Post-Closing Events” pursuant to the Asset Purchase Agreement, $750,000. In no event shall have no liability EWI and EWD be liable to Buyer Indemnitees for any Losses or other claims relating to or arising out of this Agreement or the Transaction Documents in excess of $17,000,000.
(c) Buyer will not be liable to EWI Indemnitees for indemnification under Section 7.2(a)(i8.03(a) unless and BHEP will not be liable to “EWD Indemnitees” for indemnification under Section 8.03(a) of the Asset Purchase Agreement with respect to any representations or warranties of Buyer hereunder or BHEP under the Asset Purchase Agreement other than the Special Representations (as defined herein and in the Asset Purchase Agreement) until the aggregate amount of all such Damages Losses exceeds $250,000 (the “Indemnification Deductible”); and provided further that Basket, in the case of any inaccuracy which event Buyer will be required to pay or be liable for all such Losses in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability excess of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsBasket.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person The aggregate amount of all Losses for which Buyer will be liable pursuant to this Article VII Section 8.03(a) hereunder and for which BHEP will be liable pursuant to Section 8.03(a) of the Asset Purchase Agreement (i) other than the Special Representations (as defined herein and in the Asset Purchase Agreement) will not exceed the Cap and (ii) with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth the Special Representations (as defined herein and in this the Asset Purchase Agreement), will not exceed $17,000,000.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect The determination of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding Losses for purposes of this Article VIII will take into account the amount or availability of insurance proceeds payable with respect thereto pursuant to any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closinginsurance policy.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except Sellers shall not be liable to the Buyer Indemnitees for claims arising indemnification under Section 8.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) exceeds $200,000 (the "Basket"), in which event Sellers shall be required to pay or be liable for all such Losses from Intentional Fraudthe first dollar; provided that the Basket shall not apply to Losses related to (i) any inaccuracy or breach of the representations and warranties contained in Section 3.01, criminal activity Section 3.02, Section 3.11, or Section 3.22 or (ii) the fraudulent or willful breaches breach of covenants, any Damages representation or warranty of Sellers or the Company. The aggregate amount of all Losses for which the Seller Sellers shall be liable pursuant to Section 7.2(a)(i8.02(a) or Section 8.02(c) shall be satisfied solely by recovery by Buyer under not exceed 20% of the Indemnification Insurance Policy Purchase Price; provided, however, in the case of Losses due to an inaccuracy in or breach of the representations and Buyer will have no recourse against warranties contained in Section 3.01, Section 3.02 or Section 3.22 or due to the Seller with respect to any such Damages, whether fraudulent or not the entirety willful breach of any such Damages is covered representation or warranty given by the Indemnification Insurance Policy Company or whether Sellers, Sellers shall be liable for such Losses up to 100% of the Purchase Price. The aggregate amount of Losses for which Sellers shall be liable pursuant to Section 8.02(b) shall not exceed 100% of the Purchase Price. The aggregate amount of Losses for which Sellers shall be liable pursuant to Section 8.02(d) shall not exceed $15,000,000. Notwithstanding the foregoing, there shall be no limit on the liability of a Seller who commits (or not causes the Indemnification Insurance Policy Company to commit) or has expired, been terminated knowledge of any fraudulent or lapsed; provided willful breach of any representation or warranty. The parties agree that (i) the no individual Seller shall be directly required to indemnify Buyer Indemnitees in excess of his or her proportionate ownership of the Shares (as of Closing).
(b) Buyer shall not be liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Sellers Indemnitees for indemnification under Section 7.2(a)(i8.03(a) unless and 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 Damages exceeds $250,000 Losses from the first dollar; provided that the Basket shall not apply to Losses related to (i) any inaccuracy or breach of the “Indemnification Deductible”); representations and provided further that warranties contained in Section 4.01 or (ii) the case fraudulent or willful breach of any representation or warranty of Buyer. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.03 shall not exceed 100% of the Purchase Price with respect to Losses due to an inaccuracy in or breach of the representations and warranties contained in Section 4.01 or due to the fraudulent or willful breach of any Company Fundamental Representationrepresentation or warranty given by Buyers; provided, the Seller however, there shall be directly liable to no limit on the liability of Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for if Buyer commits or has knowledge of any reason other than the lack fraudulent or willful breach of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded any representation or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementwarranty.
(bc) Other than for Third Party Claims, in no event shall any Indemnifying Party be liable to any Indemnified Party, and in no event shall any claim for indemnification under this Article VIII be made, for incidental, indirect, consequential, special, punitive, exemplary or other such damages by reason of the breach of any representation, warranty, covenant, agreement or indemnity contained herein.
(d) Each Indemnified Party shall 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 reasonably expected to, or does, give rise thereto, provided that the Indemnified Party shall not be required to incur any out of pocket costs to remedy the breach that gives rise to such Loss.
(e) With respect to Third Party Claims for infringement of patent rights that occur after Closing, Indemnitees’ obligations for Losses related to the sale of Company Products by the Company or the Buyer shall be limited to Losses related to the sale of product and services by the Company prior to Closing. For the avoidance of doubt where the Company has no knowledge of third party patent rights prior to closing, any Losses or portion of Loss caused by infringement of the third party patent rights as a result of making, using, selling, offering for sale, and/or importing products or service by the Company and/or Buyer after Closing is the sole responsibility of the Buyer. Notwithstanding anything to the contrary hereincontained in this Section 8.04(e), except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under nothing in Section 7.2(a8.04(e) shall limit or otherwise diminish Sellers obligation to pay all costs and expenses required to litigate or otherwise resolve a claim regarding infringement of patent rights whether occurring prior or after closing, including but not exceed the aggregate Purchase Price actually received by the Seller pursuant limited to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementreasonable attorneys’ fees.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
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Certain Limitations. The Regency Indemnitees’ and the Member Indemnitees’ rights to indemnification under this Article IX shall be limited as follows:
(a) Except No Claim Notice for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages indemnification may be provided and no Claim for which the Seller shall indemnification may be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller made with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons Claim for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or other agreement hereunderin this Agreement beyond the applicable period specified in Section 9.1.
(b) If the Regency Indemnitees shall seek indemnification with respect to any Escrow Indemnity Claim, the Regency Indemnities’ sole recourse and recovery rights with respect to Damages relating to an Escrow Indemnity Claim shall be (i) recovery from the Escrow Fund in accordance with this Article IX and Article XI, (ii) recovery from Member as permitted by the immediately following sentence and (iii) recovery by offset against the Sonat Cash Payment in accordance with Section 9.5; provided the aggregate amount of Damages that may be recovered with respect to all Escrow Indemnity Claims pursuant to clauses (i), (ii) and (iii) above shall not exceed $8,500,000. If the Escrow Fund shall be insufficient to cover any Escrow Indemnity Claim, the Regency Indemnitees shall have recourse to Member with respect to any Escrow Indemnity Claim as to which the balance of the Escrow Fund is insufficient to cover in full for amounts up to, and only up to, amounts distributed from the Escrow Fund to cover Damages relating to Non-Escrow Indemnity Claims and to pay the Merger Consideration Deficit to Regency pursuant to Section 2.8(d)(i) and Section 11.2(c), if applicable.
(c) No Regency Indemnitee or Member Indemnitee shall be entitled to recover Damages pursuant to Section 9.2(a)(ii) or Section 9.3(a)(ii), respectively, unless:
(i) the Regency Indemnitees, collectively, or the Member Indemnitees, collectively, shall have suffered or incurred aggregate Damages otherwise recoverable under this Article IX in an amount in excess of the Deductible, and then recovery shall be permitted only to the extent actually recovered of such excess; and
(ii) after the Deductible has been met, the Regency Indemnitees, collectively, or the Member Indemnitees, collectively, shall have suffered or incurred Damages with respect to the individual Claim or series of related Claims that arise out of substantially the same facts and circumstances for which Damages are in excess of $25,000, in which case the full amount of such Damages shall be recoverable, subject to the limitations imposed by a third party the other provisions of this Article IX (including a Governmental Bodyclause (i) from an Indemnified Personof this Section 9.4). Notwithstanding the foregoing, or with respect to any claim for indemnification (iiiand the Damages recoverable therefrom) that may be brought under both Section 9.2(a)(ii), on the one hand, and any other subsection of Section 9.2(a), on the other hand, shall not be subject to any limitation specified in this Section 9.4(c) and any claim for indemnification (and the event Damages recoverable therefrom) that may be brought under Section 9.3(a)(ii), on the one hand, and any other subsection of Intentional FraudSection 9.3(a), criminal activity or willful breaches of covenantson the other hand, shall not be subject to any limitation specified in this Section 9.4(c).
(d) An Indemnified Person If an indemnification Claim is brought by a Regency Indemnitee with respect to a Non-Escrow Indemnity Claim, the Regency Indemnitee must first, recover the Damages incurred with respect to such Claim from the Escrow Fund in accordance with Article XI to the extent of amounts available in the Escrow Fund, and only thereafter shall be entitled to recover any Damages with respect to a Non-Escrow Indemnity Claim not recovered from the Escrow Fund from Member.
(e) The aggregate liability of Member pursuant to Section 9.2 shall not exceed the amount of the Merger Consideration received by Member.
(f) The provisions of this Article IX 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 Merger Consideration for any Damages, there shall not be any charge against the Deductible or the Escrow Fund and no Indemnitee may claim a breach of any representation or warranty with respect to any Damages that gave rise to such adjustment in the Merger Consideration pursuant to Section 2.8 to the extent of the amount of such Damages given effect in such adjustment to the Merger Consideration.
(g) No Person shall have any right to indemnification by under this Article IX to the extent such Damages are duplicative of Damages that have previously been recovered hereunder.
(h) The amount of any Damages for which indemnification is provided under this Article IX shall be net of any accruals or reserves on the Final Closing Statement that specifically relate to the matter(s) for which indemnification is claimed, and if the amount to be netted hereunder from any payment required hereunder is determined after payment of any amount otherwise required to be paid to an Indemnifying indemnified Person pursuant to this Article VII with respect IX, the indemnified Person shall repay to Member or to Regency, as applicable, promptly after such determination, any claim or group amount that should not have been paid pursuant to this Article IX had such determination been made at the time of related claims such payment.
(i) No Regency Indemnitee shall only be entitled to recover once for such claim Damages pursuant to Section 9.2(a)(iv) unless the Regency Indemnitees, collectively, shall have suffered or group incurred Damages with respect to the individual Claim or series of related claims notwithstanding Claims that arise out of substantially the same facts and circumstances for which Damages are in excess of $25,000, in which case the full amount of such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person Damages shall be entitled to indemnification under this Agreement (i) in respect of any Damages recoverable, subject to the extent such Damages were taken into account in limitations imposed by the calculation other provisions of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterthis Article IX.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
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Certain Limitations. (aThe indemnification provided for in Sections 7(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(iand 7(b) shall be satisfied solely by recovery by Buyer under subject to the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that following limitations:
(i) The aggregate of the Seller sum of indemnification obligations of the Sellers under Section 7(b) shall be directly liable limited to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of Common Stock constituting the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”)Escrow Amount; provided, and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further however, that in the case of any inaccuracy in fraud or a breach of any Company Fundamental Representationthe representations and warranties set forth in Sections 3(a)(i), 3(a)(ii), 3(a)(iv), 4(a), 4(b),4(d) and 4(l)(iii) the indemnification obligations of the Sellers under Section 7(b) shall be limited to the value of the entire Purchase Price as of the Closing Date.
(ii) The aggregate of the sum of indemnification obligations of the Buyer under Section 7(c) shall be limited to the value of the Buyer Common Stock constituting the Escrow Amount, valued as of the Closing Date; provided, however, that in the case of fraud or a breach of the representations and warranties set forth in Sections 3(b)(i) - (v), the Seller indemnification obligations of the Buyer under Section 7(c) shall be directly liable limited to the Buyer Indemnified Persons entire value of the Purchase Price as of the Closing Date.
(iii) Notwithstanding anything to the extent contrary, with respect to any representation, warranty, undertaking, agreement or obligation of the Company, each Seller’s liability in respect of any Losses out of any breach or failure indemnified hereunder in respect thereof shall be limited to such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack Seller’s proportionate share of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal such Losses determined according to the amount of Purchase Price actually received by such Seller. The Buyer hereby covenants not to make a claim against any Seller for Losses with respect to any breach or failure in respect of any representation, warranty, undertaking, agreement or obligation of the Seller pursuant to this Agreement.
(b) Notwithstanding anything Company indemnified hereunder in excess of such Seller's proportionate share determined according to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches amount of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementsuch Seller.
(civ) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims No Party shall only be entitled to recover once from any other Party hereunder for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or the same Loss more representations and/or warranties set forth in this Agreementthan once.
(ev) No Neither the Buyer Indemnified Person nor a Seller, as the case may be, shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount hereunder if Buyer or Seller, as applicable, had actual knowledge of any Damages resulting therefrom, all qualifications such breach on or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedbefore Closing.
(gvi) Notwithstanding anything to the contrary, with respect to any representation, warranty, undertaking, agreement or obligation of a particular Seller makes no representations hereunder, as opposed to the Company, the Seller making such representation or warranties regarding the amount warranty, or availability subject to such undertaking, agreement or obligation, shall be solely liable in respect of any net operating lossLosses indemnified hereunder in respect of any Losses arising out of any breach or failure. Buyer hereby covenants, capital losswith respect to any representation, tax credit carryover warranty, undertaking, agreement or obligation of a particular Seller hereunder, as opposed to the Company, not to make a claim against any Seller for Losses with respect to any breach or failure in respect thereof other Tax asset than against the particular Seller making such representation or liability of the Acquired Companies in warranty, or subject to such undertaking, agreement or obligation.
(vii) In no event shall Losses include any taxable period (special, punitive, indirect, incidental or portion thereof) beginning after the Closingconsequential damages whatsoever.
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Certain Limitations. (a) Except for claims The obligations of the Seller in respect of Purchaser Indemnity Claims pursuant to Section 8.02(a) (other than Purchaser Indemnity Claims in respect of a breach of any Fundamental Representations or Tax Representations or that arise from intentional fraud by the Seller, which shall not be subject to the limitations set forth in this Section 8.05(a)) (“Covered Purchaser Indemnity Claims”) shall become operative and effective only if and to the extent that the aggregate amount of all Losses incurred by the applicable Indemnitees arising from Intentional FraudCovered Purchaser Indemnity Claims exceeds one percent (1%) of the Purchase Price (the “Basket Amount”). Covered Purchaser Indemnity Claims shall accumulate until such time as the aggregate amount of all Losses arising therefrom exceeds the Basket Amount, criminal activity or willful breaches of covenants, any Damages for at which time the Seller shall be liable obligated to indemnify the applicable Indemnitees against such Losses, but only to the extent the aggregate amount thereof exceeds the Basket Amount.
(b) The obligations of the Purchaser in respect of Seller Indemnity Claims pursuant to Section 7.2(a)(i8.03(a) (other than Seller Indemnity Claims in respect of a breach of any Fundamental Representations or that arise from intentional fraud by the Purchaser, which shall not be subject to the limitations set forth in this Section 8.05(b)) (“Covered Seller Indemnity Claims”) shall be satisfied solely by recovery by Buyer under become operative and effective only if and to the Indemnification Insurance Policy and Buyer will have no recourse against extent that the Seller with respect to any such Damages, whether or not the entirety aggregate amount of any such Damages is covered all Losses incurred by the Indemnification Insurance Policy or whether or not applicable Indemnitees arising from Covered Seller Indemnity Claims exceeds the Indemnification Insurance Policy has expiredBasket Amount. Covered Seller Indemnity Claims shall accumulate until such time as the aggregate amount of all Losses arising therefrom exceeds the Basket Amount, been terminated or lapsed; provided that at which time the Purchaser shall be obligated to indemnify the applicable Indemnitees against such Losses, but only to the extent the aggregate amount thereof exceeds the Basket Amount.
(i) The maximum obligation of the Seller to provide indemnification in respect of Covered Purchaser Indemnity Claims shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(inot exceed ten percent (10%) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 Purchase Price (the “CapCap Amount”), ) and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability maximum obligation of the Seller for all Damages under to provide indemnification in respect of Purchaser Indemnity Claims pursuant to Section 7.2(a8.02(a) and Section 8.02(b) shall not exceed the aggregate Purchase Price actually received by Price; provided, however, that the Seller limitations in this clause (ii) shall not apply to any Purchaser Indemnity Claim pursuant to this Agreement, Section 8.02(b) with respect to the Seller’s obligations and agreements in Section 1.05 and Section 1.06.
(d) (i) The maximum obligation of the Purchaser to provide indemnification in respect of Covered Seller Indemnity Claims shall not exceed the Cap Amount and (ii) the aggregate liability maximum obligation of Buyer for all Damages under the Purchaser to provide indemnification in respect of Seller Indemnity Claims pursuant to Section 7.2(b8.03(a) and Section 8.03(b) shall not exceed the aggregate Purchase Price actually paid by Price; provided, however, that the Buyer pursuant to limitations in this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, clause (ii) shall not apply to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person any Seller Indemnity Claim pursuant to this Article VII Section 8.03(b) with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth the Purchaser’s obligations and agreements in this AgreementSection 1.05, Section 1.06, Section 5.17(c), Section 5.19(e) and Section 5.19(f).
(e) No Buyer Indemnified Person The obligations of the Seller in respect of Purchaser Indemnity Claims pursuant to Section 8.02(a) shall become operative and effective only if and to the extent that the amount of Loss incurred by the applicable Indemnitees related to each individual Purchaser Indemnity Claim pursuant to Section 8.02(a) or series of aggregated Purchaser Indemnity Claims pursuant to Section 8.02(a) arising out of the same or similar facts, events or circumstances exceeds $75,000 (the “De Minimis Threshold”), and any such Losses below the De Minimis Threshold shall not be counted toward the Basket Amount.
(f) The obligations of the Purchaser in respect of Seller Indemnity Claims pursuant to Section 8.03(a) shall become operative and effective only if and to the extent that the amount of Loss incurred by the applicable Indemnitees related to each individual Seller Indemnity Claim pursuant to Section 8.03(a) or series of aggregated Seller Indemnity Claims pursuant to Section 8.03(a) arising out of the same or similar facts, events or circumstances exceeds the De Minimis Threshold, and any such Losses below the De Minimis Threshold shall not be counted toward the Basket Amount.
(g) Each of the parties hereby acknowledges and agrees that the limitations provided for in paragraphs (a) and (b) above apply only to Covered Purchaser Indemnity Claims or Covered Seller Indemnity Claims (as the case may be), and do not apply to any other rights to indemnification provided for in this Article VIII, including rights to indemnification against Retained Liabilities or Assumed Liabilities (as the case may be).
(h) Any Losses for which any Indemnitee would be entitled to indemnification under this Agreement Article VIII shall be reduced by (i) in respect any cash payments, setoffs or recoupment of any Damages to payments in each case receivable, realizable or retainable by such Indemnitee (including any amounts recovered or recoverable by the extent such Damages were taken into account in Indemnitee under insurance policies, including the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, Title Policies) or (ii) for any Damages relating Tax Benefit actually realized in the taxable year of such Loss or a prior taxable year, in each case as a result of any event giving rise to an Indemnity Claim. Each Indemnitee shall as promptly as practicable pay over to the Indemnitor any matter amounts actually recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), but not in excess of the sum of any amount previously so paid by the Indemnitor to or on behalf of the Indemnitee in respect of such Loss.
(i) The obligations of the Seller in respect of Purchaser Indemnity Claims shall not become operative and effective to the extent that there arising from (A) the conduct by the Purchaser or any of its Affiliates, employees, representatives or agents of any invasive or destructive sampling or assessment of any soil or groundwater at any of the Real Property unless such sampling or assessment (1) is included required to be undertaken pursuant to any applicable Environmental Law or Order, (2) arises in the Interim Financial Statements a specific liability ordinary course of business out of repairs, modifications, maintenance activities, construction or reserve other capital projects, in each case relating to such matter.
the Assets or Transferred Business and conducted consistent with industry practices or (f3) For purposes of determining (i) whether there has been any misrepresentation or breach arises in response to a requirement of a representation Governmental Authority or warranty and a financing source of the Purchaser or its Affiliates; (iiB) any material change made by the amount Purchaser in the scope of use of any Damages Real Property (including the change resulting therefromfrom the decommissioning, all qualifications closure or exception in shutdown of any representation facility) such that the Real Property is no longer used for similar industrial purposes; or warranty relating to or referring to (C) any conduct by the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” Purchaser or any similar qualificationof its Affiliates, term employees, representatives or phrase shall be disregarded.
agents not consistent with that of a reasonable and prudent business person who owns the applicable Real Property (g) Seller makes no representations or warranties regarding without consideration of the amount or availability benefit of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of indemnification provided by the Acquired Companies in any taxable period (or portion thereof) beginning after the ClosingSeller).
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 6.1 and Section 6.2 shall be subject to the following limitations:
(a) Except Upon the terms and subject to the conditions and limitations set forth in this Agreement, Sellers shall not be liable to Purchaser Indemnitees for claims arising from Intentional Fraudindemnification under Section 6.1(a) until the aggregate amount of all Losses in respect of indemnification exceeds $150,000 (the “Basket”), criminal activity or willful breaches of covenants, any Damages for in which the Seller event Sellers shall be required to pay or be liable for Losses only to the extent (and solely with respect to the amount that) such aggregate Losses exceed the Basket; provided that the foregoing limitation shall not apply in respect of any Losses relating to a Breach of any Transactional Reps. Upon the terms and subject to the conditions and limitations set forth in this Agreement, the Purchaser Indemnitees shall not be indemnified pursuant to Section 7.2(a)(i6.1(a) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not Loss if the entirety aggregate amount of any such Damages is covered by all Losses for which the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages Purchaser Indemnitees have received indemnification pursuant to Section 7.2(a)(i6.1(a) in excess has exceeded thirty-five percent (35%) of the Indemnification Deductible up Transaction Consideration (the “Non-Transactional Cap”). Subject to an Section 6.5(c), in no event shall the Purchaser Indemnitees be entitled to indemnification pursuant to Section 6.1 with respect to any Loss if the aggregate amount not of all Losses for which the Purchaser Indemnitees have received indemnification pursuant to exceed $250,000 Section 6.1 has exceeded the Transaction Consideration (the “Transactional Cap” and together with the Non-Transactional Cap, the “Cap”).
(b) Upon the terms and subject to the conditions and limitations set forth in this Agreement, and (ii) Purchaser shall not be liable to the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i6.2(a) unless and until the aggregate amount of all Losses in respect of indemnification exceeds the Basket, in which event Purchaser shall be required to pay or be liable for Losses only to the extent (and solely with respect to the amount that) such Damages exceeds $250,000 (aggregate Losses exceed the “Indemnification Deductible”)Basket; and provided further that the foregoing limitation shall not apply in the case respect of any inaccuracy in or breach Losses relating to a Breach of any Company Fundamental RepresentationTransactional Reps. Upon the terms and subject to the conditions and limitations set forth in this AmericasActive:13598183.18 Agreement, the Seller Indemnitees shall not be directly liable indemnified pursuant to Section 6.2(a) with respect to any Loss if the Buyer Indemnified Persons aggregate amount of all Losses for which the Seller Indemnitees have received indemnification pursuant to Section 6.2(a) in respect of Non-Transactional Reps has exceeded the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons Non-Transactional Cap. Subject to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being deniedSection 6.5(c), up to an amount equal to the Purchase Price actually received by in no event shall the Seller Indemnitees be entitled to indemnification pursuant to this AgreementSection 6.2 with respect to any Loss if the aggregate amount of all Losses for which the Seller Indemnitees have received indemnification pursuant to Section 6.2 has exceeded the Transactional Cap.
(bc) Notwithstanding anything to the contrary hereinset forth in this Agreement, except the limitations set forth in Section 6.5(a) and Section 6.5(b) shall not limit the Liability of any Indemnifying Party for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability intentional Breach of any covenant set forth herein or any of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and other Transaction Documents or fraud or (ii) indemnification with respect to the aggregate liability of Buyer for all Damages under items set forth in Section 7.2(b6.1(b) through Section 6.1(j). Additionally, the Basket shall not exceed apply to any Losses resulting from a Breach of the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) representation in the event first sentence of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsSection 2.10(c).
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this AgreementFROM AND AFTER THE CLOSING, EXCEPT (A) IN THE CASE OF A FRAUD CLAIM OR A BREACH OF ANY COVENANT TO BE PERFORMED POST-CLOSING SET FORTH HEREIN OR IN ANY OTHER TRANSACTION DOCUMENT, OR (B) WITH RESPECT TO EQUITABLE REMEDIES AVAILABLE TO THE PARTIES, THE SOLE AND EXCLUSIVE REMEDY OF ANY PARTY TO THIS AGREEMENT AND ITS AFFILIATES OR ANY OTHER INDEMNIFIED PARTY WITH RESPECT TO THIS AGREEMENT, THE EVENTS GIVING RISE TO THIS AGREEMENT AND THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE LIMITED TO THE INDEMNIFICATION PROVISIONS SET FORTH IN THIS ARTICLE VI.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. (aThe indemnification provided for Section 7.03(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to and Section 7.2(a)(i7.03(b)(i) shall be satisfied solely by recovery by Buyer under subject to the Indemnification Insurance Policy following limitations:
(i) for avoidance of doubt and Buyer will have no recourse against subject to Section 7.03(c)(ii), each Company Stockholder’s obligation to indemnify ListCo Indemnities shall be limited to each Company Stockholder’s pro rata share of the Seller Merger Consideration that such Company Stockholder actually receives at Closing;
(ii) Except with respect to any such DamagesCompany Stockholder Fraud, whether or the Company Stockholders shall not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and ListCo Indemnitees until the aggregate amount of such Damages all Losses in respect of indemnification under Section 7.03(a) exceeds $250,000 (the “Indemnification Company Deductible”), in which event the Company Stockholders shall be required to pay or be liable for all such Losses from and over the Company Deductible, and in no event shall the Company Stockholders be liable for any Losses in an aggregate amount of more than the Indemnification Holdback Amount (it being agreed that, notwithstanding anything to contrary set forth herein and except for the immediately following provision, the ListCo Class A Common Stock held in escrow pursuant to the Share Consideration Escrow Agreement shall be the sole and exclusive recourse of the ListCo Indemnities with respect to all Losses hereunder); provided that, with respect to Losses arising from Company Stockholder Fraud, (1) the Company Deductible shall not apply and (2) solely the Company Stockholder that has committed such Company Stockholder Fraud shall be liable for such Losses; and provided further further, that (as set forth in clause (i) above) in no event shall any single Company Stockholder be liable for Losses hereunder in excess of such Company Stockholder’s pro rata share of the case Merger Consideration that such Company Stockholder actually receives at Closing (inclusive of any inaccuracy in Indemnification Holdback Amounts pertaining to such Holder);
(iii) Except with respect to the ListCo Specified Representations or breach of any Company Fundamental RepresentationFraud, the Seller ListCo shall not be directly liable to the Buyer Indemnified Persons Company Indemnitees for indemnification under Section 7.03(b)(i) until the aggregate amount of all Losses in respect of indemnification under Section 7.03(b)(i) exceeds $100,000 (“ListCo Deductible”) in which event ListCo shall be required to pay or be liable for all such Losses from and over the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.ListCo Deductible; and
(biv) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII Except with respect to any claim the ListCo Specified Representations or group of related claims Fraud, ListCo shall only not be entitled liable to recover once the Company Indemnitees for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (iSection 7.03(b)(i) if the aggregate amount of all Losses in respect of any Damages to indemnification under Section 7.03(b)(i) exceeds the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterMerger Consideration.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The Parties’ indemnification obligations under Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except Neither Seller nor Buyer shall have any liability for claims monetary Losses arising from Intentional Fraudunder Section 8.02(a) or Section 8.03(a), criminal activity or willful breaches to the extent the aggregate amount of covenants, any Damages Losses related thereto for which the Seller shall or Buyer, as applicable, would otherwise be liable pursuant required to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under provide indemnification, exceeds an amount equal to Three Hundred Seventy-Five Million Dollars ($375,000,000). The aggregate Liability of Buyer, on the Indemnification Insurance Policy one hand, and Buyer will have no recourse against Seller, on the Seller other hand, for any Losses with respect to any such Damagesmatters set forth in Section 8.02(b) and Section 8.03(b), whether or respectively, shall not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable exceed an amount equal to the Purchase Price.
(b) Neither Seller nor Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no any liability for indemnification monetary Losses under Section 7.2(a)(i8.02(a) or Section 8.03(a) unless and until the aggregate amount of such Damages all monetary Losses under Section 8.02(a) or Section 8.03(a) as applicable, for which Seller or Buyer, as applicable, would otherwise be required to provide indemnification exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to on a cumulative basis an amount equal to Twenty-Five Million Dollars ($25,000,000), at which point Seller or Buyer, as applicable, subject to the Purchase Price actually received by other provisions of this Section 8.04, shall indemnify the Buyer Indemnitees or the Seller pursuant to this Agreement.
(b) Notwithstanding anything to Indemnitees, as applicable, for the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches full amount of covenants, (i) the aggregate liability all such Losses in excess of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementsuch amount.
(c) Any and all indemnification payments required to be made by Seller pursuant to Section 8.02 shall be paid first from the Escrow Fund to the extent available in accordance with the Escrow Agreement. Seller shall not be required to pay any Buyer Indemnitee for any indemnifiable Losses under Section 8.02 unless and until the Escrow Fund has been exhausted. The parties hereto expressly waive Escrow Agent shall distribute to Seller, subject to the terms and conditions of the Escrow Agreement, immediately following the Survival Period, the then remaining Escrow Amount in excess of the sum of any claim amounts with respect to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in which Buyer is entitled to, but has not yet received, indemnification, pursuant to this Article VIII (plus the event amount of diminution of value to the extent that any interest or income earned on such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunderamount), (ii) to any unresolved claims for indemnification as of such date (plus the extent actually recovered by a third party (including a Governmental Bodyamount of any interest or income earned on such amount) from an Indemnified Person, or and (iii) any amounts disputed but not yet resolved pursuant to Section 2.07 or Section 2.08. Once all indemnification claims are resolved between the Parties in accordance with this Article VIII, and all disputes (if any) are resolved between the Parties in accordance Section 2.07 or Section 2.08, as applicable, all remaining amounts in the event of Intentional FraudEscrow Fund, criminal activity or willful breaches of covenantsif any, shall be paid to Seller.
(d) An The amount of any Losses for which indemnification is provided to an Indemnified Person entitled Party under this Article VIII shall be net of any amounts actually recovered by such Indemnified Party under policies of insurance (less any costs and expenses of recovery thereof), with respect to indemnification such Losses. If and to the extent any insurance proceeds are actually received by an Indemnifying Person any Indemnified Party after such Indemnified Party has recovered any Losses pursuant to this Article VII with respect VIII such Indemnified Party shall promptly pay to any claim or group the Indemnifying Party an amount equal to such insurance proceeds to which the Indemnifying Party is entitled pursuant to the first sentence of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementparagraph.
(e) No Buyer Indemnified Person Party shall be entitled to indemnification under this Agreement (i) in respect of any Damages to be compensated more than once for the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such mattersame Loss.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating Each Indemnified Party shall use commercially reasonable efforts to or referring mitigate Losses for which indemnification may be claimed by such Indemnified Party under this Agreement to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedextent required by applicable Law.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. (a) Except for claims arising from Intentional FraudSubject to the following provisions of this Section 9.3 (a), criminal activity Sellers shall not be obligated or willful breaches of covenantsrequired to make any indemnification payment, and Buyer Indemnified Parties shall not be entitled to present a claim, demand or to receive any Damages for which the Seller shall be liable indemnification payment pursuant to Section 7.2(a)(ithis Agreement or pursuant to any of the other Transaction Agreements: (i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any specific item of claim which represent a damage of less than US$ 20,000 (De Minimis)until such Damages, whether time as the total amount of all Damages that have been suffered or not the entirety incurred by any one or more of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons Parties (for such Damages pursuant all items of claim which exceeded the aforesaid De Minimis amount, together) exceeds a total amount equal to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $USD 250,000 (the “CapBasket Amount”), and (ii) . If the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate total amount of such Damages reaches or exceeds $250,000 the Basket Amount then the Buyer Indemnified Parties shall be entitled to be indemnified for the entire amount of such Damages including the Basket Amount. Notwithstanding the foregoing, the limitations set forth in this Section 9.3 (the “Indemnification Deductible”); and provided further that a) do not apply in the case of any inaccuracy in fraud, intentional misrepresentation, or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded willful or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementcriminal misconduct.
(b) Notwithstanding anything to the contrary hereinherein or in the other Transaction Agreements, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches the maximum aggregate Liabilities of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller Sellers pursuant to this AgreementAgreement or in the other Transaction Agreements, and (ii) the aggregate liability shall in no event exceed an amount equal to 25% of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by to Sellers hereunder. Notwithstanding the Buyer pursuant to foregoing, the limitations set forth in this AgreementSection 9.3 (b) do not apply in the case of fraud, intentional misrepresentation, or willful or criminal misconduct.
(c) The parties hereto expressly waive any claim Any amounts payable pursuant to consequentialthe indemnification obligations hereunder, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (iif any) in the other Transaction Agreements shall be paid without duplication, and in no event shall any Party be indemnified under different provisions of diminution of value to this Agreement or the extent that such diminution of value is other Transaction Agreements for the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantssame Damages.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages Notwithstanding anything to the extent such Damages were taken into account contrary herein or in the calculation of other Transaction Agreements, except in the Final Closing Working Capitalcase fraud, Company Indebtedness or Company Transaction Expensesintentional misrepresentation, or (ii) willful or criminal misconduct, Sellers and Buyers shall have no liability for any Damages relating loss of profits or anticipated savings; loss of goodwill or injury to any matter to reputation; the extent that there is included in the Interim Financial Statements a specific liability loss of business opportunity; punitive or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” exemplary damages; or any similar qualificationother indirect, term consequential or phrase shall be disregardedspecial loss or damage.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The liability of Seller or Buyer, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except for claims arising from Intentional FraudIf the Closing shall not have occurred, criminal activity or willful breaches recovery of covenants, any Damages for which the Seller shall be liable Buyer pursuant to Section 7.2(a)(i) 11.1 shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy limited to actual out-of-pocket expenses and Buyer will have shall in no recourse against the Seller with respect to event include any such Damagesspecial, whether indirect, incidental or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementconsequential damages whatsoever.
(b) Notwithstanding anything two (2) years after the Closing Date, except for obligations in respect of payment of taxes and compliance with ERISA requirements which shall continue for their respective statutory periods following the Closing Date, and except for Seller's obligation to indemnify Buyer under Section 11.1(c) with respect to the contrary hereinclaims made by the USEPA regarding the Florida Petroleum Reprocessors, Davie, Florida Site (the "Florida Petroleum Reprocessor Site") Seller shall have no further obligations under this Article 11 or this Agreement or otherwise, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant in each case with respect to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by which the Buyer pursuant Indemnitee has given Seller written notice prior to this Agreementsuch date.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type amount of multiple, except, in each case, (i) in the event of diminution of value Damages otherwise recoverable under this Article 11 shall be reduced to the extent that such diminution of value is the probable and reasonably foreseeable result to which any Federal, state, local or foreign tax liabilities of the applicable breach of a representationSeller Indemnitee or Buyer Indemnitee, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Personas applicable, or (iii) any of their respective Affiliates is decreased by reason of any Damage in the event respect of Intentional Fraudwhich such Seller Indemnitee or Buyer Indemnitee, criminal activity or willful breaches of covenantsas applicable, shall be entitled to indemnity under this Agreement.
(d) An Indemnified Person entitled to indemnification No Damages shall be asserted by an Indemnifying Person pursuant to this Article VII a Seller Indemnitee or Buyer Indemnitee with respect to any claim or group matter which is covered by insurance, to the extent proceeds of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementinsurance are paid.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement Except in respect of the matters set forth in Sections 11.1 (c) and (d) and 11.2 (b) hereof, (i) no claim or claims shall be asserted by a Seller Indemnitee or Buyer Indemnitee pursuant to the provisions of this Article 11 unless the amount of such Indemnitee's Damages equals at least $250,000 in respect of any Damages the aggregate and then only to the extent such Damages were taken into account exceed $250,000 in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.aggregate; and
Appears in 1 contract
Sources: Stock Purchase Agreement (Harding Lawson Associates Group Inc)
Certain Limitations. The issuance and sale of the Shares issuable pursuant to the applicable Purchase Notice (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate applicable Purchase Price actually received by Maximum Amount, (b) shall not cause the Seller pursuant Aggregate Limit or the Beneficial Ownership Limitation to this Agreementbe exceeded, and (iic) the aggregate liability of Buyer for when such Shares are aggregated with (1) all Damages under Section 7.2(bInitial Commitment Shares, (2) shall not exceed the aggregate Purchase Price actually paid all Additional Commitment Shares issued or issuable by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value Company to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification Investor under this Agreement (ifor purposes of this clause (c) in respect of any Damages this Section 7.3(viii), if the applicable Purchase Condition Satisfaction Time for the applicable Purchase occurs prior to the Additional Commitment Share Trigger Date, the Company shall assume the maximum of 5,244,994 Additional Commitment Shares are then issuable to the Investor under this Agreement and shall aggregate all such 5,244,994 Additional Commitment Shares with all other Securities that have been issued by the Company’s pursuant to this Agreement prior to such Purchase Condition Satisfaction Time for such applicable Purchase) and (3) all Shares that have been issued or are issuable by the Company pursuant to all Purchase Notices delivered prior to the applicable Purchase Condition Satisfaction Time for the applicable Purchase, shall not cause the Exchange Cap (to the extent such Damages were taken into account applicable under Section 3.3) to be exceeded, unless in the calculation case of this clause (c) of this Section 7.3(viii), the Company’s stockholders have theretofore approved the issuance of Common Stock under this Agreement in excess of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to Exchange Cap in accordance with the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability applicable rules of the Acquired Companies in any taxable period (or portion thereof) beginning after the ClosingTrading Market.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Crown Electrokinetics Corp.)
Certain Limitations. The indemnification provided for in Sections 9.2 and 9.3 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches The aggregate amount of covenants, any Damages all Losses for which the Seller Parent Shareholder Indemnitees shall be liable indemnified pursuant to Section 7.2(a)(i) 9.2 shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to exceed an amount not equal to exceed seventy-five million dollars $250,000 75,000,000 (the “Cap”).
(b) Notwithstanding any other provision of this Agreement, and (ii) the Seller Parent shall not have no liability for indemnification under any obligation to indemnify any Parent Shareholder Indemnitee pursuant to Section 7.2(a)(i) 9.2, unless and until the aggregate amount of all such Damages individual Losses incurred or sustained by all Parent Shareholder Indemnitees with respect to which the Parent Shareholder Indemnitees would otherwise be entitled to indemnification under Section 9.2 exceeds five million dollars $250,000 5,000,000 (the “Indemnification DeductibleThreshold Amount”); , and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons then only to the extent such Damages are not covered by Losses exceed the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to Threshold Amount. Only Losses that exceed an amount equal to one hundred thousand dollars $100,000 (the Purchase Price actually received by the Seller pursuant to this Agreement.
(b“Minimum Loss Amount”) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability shall be counted towards satisfaction of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementThreshold Amount.
(c) The parties hereto expressly waive any claim aggregate amount of all Losses for which the Company Shareholder Indemnitees shall be indemnified pursuant to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value Section 9.3 shall not exceed an amount equal to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsCap.
(d) An Indemnified Person Notwithstanding any other provision of this Agreement, Parent shall not have any obligation to indemnify any Company Shareholder Indemnitee pursuant to Section 9.3 unless and until the aggregate amount of all such individual Losses incurred or sustained by all Company Shareholder Indemnitees with respect to which the Company Shareholder Indemnitees would otherwise be entitled to indemnification by an Indemnifying Person pursuant under Section 9.3 exceeds the Threshold Amount, and then only to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for the extent such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this AgreementLosses exceed the Threshold Amount.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefromLosses that are the subject matter of a claim for indemnification hereunder, all qualifications or exception each representation and warranty in any representation or warranty relating to or referring this Agreement shall be read without regard and without giving effect to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualificationqualifier, term or phrase shall be disregardedas if such words and surrounding related words were deleted from such representation and warranty.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. (a) Except for claims arising from Intentional in the case of Fraud, criminal activity and subject to Section 7.3(b), the Parent Indemnified Parties, as a group, may not recover any Losses pursuant to an indemnification claim under Section 7.2(a) unless and until the Parent Indemnified Parties, as a group, shall have paid, incurred, suffered or willful breaches of covenantssustained at least $250,000 in Losses in the aggregate (the “Deductible Amount”), any Damages for at which time the Seller Parent Indemnified Parties shall be liable pursuant entitled to recover in accordance with this Agreement all such Losses in excess of the Deductible Amount, subject to the other limitations in this Agreement.
(b) Except in the case of Fraud and indemnification claims related to any breach of or inaccuracy in the Fundamental Representations, the Parent Indemnified Parties’ sole and exclusive source of recovery for indemnification claims under Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such DamagesEscrow Fund. Notwithstanding the foregoing, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable but subject to the Buyer other limitations in this Article VII, in the event the Parent Indemnified Persons Parties have recovered Losses from the Escrow Fund for such Damages Fraud pursuant to Section 7.2(a)(i7.2(a)(iv) in excess of (such amounts, to the Indemnification Deductible up to an amount not to exceed $250,000 (extent recovered from the Escrow Fund, the “CapRecovered Fraud Amounts”), and (ii) the Seller Parent Indemnified Parties shall have no liability direct recourse against the Company Indemnitors, severally and not jointly, for indemnification claims under Section 7.2(a)(i) unless for breaches of representations and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representationwarranties, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied)Fundamental Representations, up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementRecovered Fraud Amounts.
(c) The parties hereto expressly waive Subject to the limitations set forth in Sections 7.3(a) and 7.3(b), the Parent Indemnified Parties shall be entitled to bring indemnification claims directly against the Company Indemnitors pursuant to the claims procedures in Section 7.4; provided that any claim Losses with respect to consequentialsuch claims for indemnification, punitive other than those under Section 7.2(a)(iv), shall first be recovered from the Escrow Fund to the extent there are funds then remaining therein; provided, further that in no event shall the aggregate liability of any Company Indemnitor for (i) all indemnification claims related to any breach or indirect, lost profits, diminution inaccuracy in value, special, exemplary or similar damages or any damages based on any type the representations contained in Sections 2.12(a) through (n) and (q) (Intellectual Property) exceed the IP Indemnification Cap and (ii) all indemnification claims under this Agreement exceed the amount of multiple, exceptTotal Merger Consideration, in each casecase as received by such Company Indemnitor (provided that the portion of the Escrow Amount and, in the case of each Founder, the Revested Merger Consideration shall be treated as received for purposes of this sentence), unless such indemnity claim is being made in respect of Fraud committed by such Company Indemnitor or Fraud of which such Company Indemnitor had actual knowledge (iin which event there shall be no limitation on the liability of such Company Indemnitor that committed or had actual knowledge of such Fraud hereunder with respect to such Fraud). In no event shall any Company Indemnitor have any liability for (x) any Fraud committed by any other Company Indemnitor except for Fraud of which such Company Indemnitor had actual knowledge or (y) for any breach by any other Company Indemnitor of any Related Agreement entered into by such Company Indemnitor.
(d) The amount of any Losses that are subject to indemnification under this Article VII shall be calculated net of the amount of any insurance proceeds, indemnification payments or reimbursements actually received by the Parent Indemnified Parties from third parties (other than the Company Indemnitors) in respect of such Losses (net of any costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery); provided that, except for the event following sentence, nothing in this Section 7.3(d) shall be construed as or give rise to an obligation on the part of diminution Parent or any Parent Indemnified Party to seek any such insurance, indemnification or reimbursement. The Parent Indemnified Parties shall use commercially reasonable efforts to seek recovery under the D&O Tail Policy with respect to any applicable Losses. If any Parent Indemnified Party receives any such insurance proceeds, indemnification payments or reimbursements from third parties (other than the Company Indemnitors) with respect to any Losses for which it has already received an indemnification payment hereunder (whether from the Escrow Fund or directly from any Company Indemnitor), it shall deposit an amount equal to the portion of value the indemnification payment for which it received such a third party recovery (net of any costs or expenses incurred in obtaining such recovery, including any increases in insurance premiums or retro-premium adjustments resulting from such recovery) into the Escrow Fund (if the Escrow Expiration Date has not yet occurred and to the extent that such diminution indemnification payment was made from the Escrow Fund) or with the Paying Agent for distribution to the Company Indemnitors who paid for such Losses based on their relative Pro Rata Shares.
(e) For purposes of determining the maximum liability under this Article VII of a particular Company Indemnitor who receives shares of Parent Common Stock in the Merger, the shares of Parent Common Stock received by such Company Indemnitor shall be deemed to have a value is equal to the probable and reasonably foreseeable result Parent Common Stock Closing Price. The foregoing shall not be deemed to limit in any way the liability of a Company Indemnitor for such Company Indemnitor’s own Fraud or of Fraud of which such Company Indemnitor had actual knowledge.
(f) For the applicable avoidance of doubt, any Losses for indemnification under this Agreement shall be determined without duplication of recovery due to the facts giving rise to such Losses constituting a breach of a more than one representation, warranty, covenant or agreement hereunderor other indemnifiable matter under Section 7.2. The Parent Indemnified Parties shall not be entitled to indemnification, compensation or reimbursement with respect to any amount or item to the extent such amount or item was actually and specifically included in the calculation of the Base Merger Consideration Value as finally determined in accordance with Section 1.15.
(g) Parent and Merger Subs acknowledge and agree that the sole and exclusive remedy for the Parent Indemnified Parties with respect to any and all claims for any breach of any representation, warranty, covenant, agreement or obligation set forth herein, for any of the other matters set forth in Section 7.2, or otherwise resulting from or arising out of this Agreement, the Mergers or the other transactions contemplated hereby, will be pursuant to the indemnification provisions set forth in this Article VII; provided, that the foregoing clause of this sentence shall not be deemed a waiver by any party of (i) any right to specific performance or injunctive relief, (ii) any right or remedy of a party under any Related Agreement to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Personwhich it is party, or (iii) any right or remedy against a particular Company Indemnitor with respect to such Company Indemnitor’s own Fraud or Fraud of which such Company Indemnitor had actual knowledge, and all claims related to such Company Indemnitor’s own Fraud or Fraud of which such Company Indemnitor had actual knowledge shall survive until the expiration of the statute of limitations applicable to common law fraud in the event of Intentional FraudDelaware. All claims for indemnification, criminal activity compensation or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to reimbursement under this Article VII with respect shall be asserted by Parent on behalf of the applicable Parent Indemnified Parties. Subject to the other limitations contained herein, the obligations of the Company Indemnitors under this Article VII shall not be reduced, offset, eliminated or subject to contribution by reason of any action or inaction by the Company that contributed to any claim inaccuracy or group of related claims breach giving rise to such obligation, it being understood that the Company Indemnitors, not the Company, shall only be entitled to recover once have the sole obligation for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to the indemnification obligations under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterArticle VII.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Merger Agreement (PagerDuty, Inc.)
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the The Seller shall not be liable pursuant obligated to Section 7.2(a)(iindemnify and hold harmless its respective Indemnitees for Excluded Matters, (i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any claim (or series of related claims arising from the same underlying facts, events or circumstances), unless such Damagesclaim (or series of related claims arising from the same underlying facts, whether events or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (icircumstances) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) involves Indemnifiable Losses in excess of the Indemnification Deductible up to an amount not to exceed $250,000 100,000 (the “CapThreshold Amount”), ) (nor shall any claim that does not exceed the Threshold Amount be applied to or considered for purposes of calculating the amount of Indemnifiable Losses for which the Indemnitor is responsible under clause (ii) below) and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages all Indemnifiable Losses of the Indemnitees for Excluded Matters exceeds $250,000 10 million (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller at which point such Indemnitor shall be directly liable to its respective Indemnitees for the Buyer Indemnified Persons value of the Indemnitee’s claims for Excluded Matters that is in excess of the Deductible, subject to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties limitations set forth in this Agreement.
(e) No Buyer Indemnified Person Article XIII; provided, that neither the Threshold Amount nor the Deductible shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating apply to any matter claim pursuant to the extent Section 13.02(a) that there is included in the Interim Financial Statements relates to a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty that is a Seller Fundamental Representation. (108) The maximum liability of the Seller to the Buyer Indemnified Persons for any and all Indemnifiable Losses pursuant to this Agreement for claims pursuant to Section 13.02(a)(i), (ii) and (iii) shall be $420 million in the amount aggregate; provided, that the maximum aggregate liability of the Seller to the Buyer Indemnified Persons for any Damages resulting therefromand all Indemnifiable Losses for Excluded Matters shall be $100 million in the aggregate; provided, all qualifications or exception further, that the maximum aggregate liability set forth in the immediately preceding clause shall not apply to any claim pursuant to Section 13.02(a) that relates to a breach of a representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) that is a Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or Fundamental Representation. The maximum liability of the Acquired Companies in Buyer to the Seller Indemnified Persons for any taxable period (or portion thereof) beginning after and all Indemnifiable Losses for breaches of the ClosingBuyer Fundamental Representations shall be $420 million.
Appears in 1 contract
Sources: Master Transaction Agreement (Equitable Holdings, Inc.)
Certain Limitations. (a) Except The Seller Indemnity Parties shall not be required to indemnify the Purchaser Indemnified Parties for claims arising from Intentional FraudDamages under Section 9.1(a)(i) (except for the Fundamental Representations and Warranties), criminal activity or willful breaches of covenants, any Damages for which and the Purchaser shall not be required to indemnify the Seller Indemnified Parties for Damages under Section 9.2(a), until (i) an individual claim for Damages exceeds $[***] or (ii) claims for Damages in the aggregate exceed $[***] (the “Basket”), in which case the Seller Indemnity Parties or Purchaser, as applicable, shall be liable for all such Damages including the Basket.
(b) The Seller Indemnity Parties shall not be required to indemnify the Purchaser Indemnified Parties for those portions of any Damages (i) that were specifically deducted in determining any adjustments pursuant to Article III or (ii) to the extent resulting primarily from any material breach of Purchaser’s obligations under this Agreement. Purchaser shall not be required to indemnify the Seller Indemnified Parties for those portions of any Damages (x) that were specifically deducted in determining any adjustments pursuant to Article III or (y) to the extent resulting primarily from any material breach of the Company’s, any Seller’s or the Seller Representative’s obligations under this Agreement. No Person shall be indemnified more than once for the same Damages.
(c) Except in the case of Fraud, the Seller Indemnity Parties’ aggregate liability (i) under Section 9.1(a)(i) (other than with respect to the Fundamental Representations and Warranties and the Tax Representations) shall not exceed one-third (1/3) of the Purchase Price.
(d) Except in the case of Fraud, the aggregate liability of the Seller Indemnity Parties (i) under Section 9.1(a) under this Agreement, other than Section 9.1(a)(i), and the Ancillary Agreements shall not exceed the Purchase Price.
(e) Except in the case of Fraud, the aggregate liability of Purchaser under this Agreement shall not exceed the Purchase Price.
(f) Any amounts owed by the Seller Indemnity Parties for indemnification to the Purchaser Indemnified Parties under Section 9.1 shall be exclusively satisfied as follows: (i) first, as a payment by the Escrow Agent from the Indemnification Escrow Fund (on a joint and several basis by the Sellers to the extent of such funds), and after such Indemnification Escrow Fund has been exhausted (ii) second, directly against the Seller Indemnity Parties jointly and severally (which shall include a right of set-off against any Performance Amounts, if any).
(g) Any indemnity payment made by the Seller Indemnity Parties to any Purchaser Indemnified Party, on the one hand, or by Purchaser to any Seller Indemnified Party, on the other hand, pursuant to this Article IX shall be reduced by an amount equal to any insurance proceeds actually received by such indemnified party in respect of such claim minus any out-of-pocket expenses (including reasonable and documented attorneys’ fees and expenses) relating to the recovery of such proceeds.
(h) Each of the Purchaser Indemnified Parties and the Seller Indemnified Parties shall take all commercially reasonable steps to mitigate any Damages upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto. The reasonable costs and expenses of mitigation hereunder shall constitute indemnifiable Damages under this Agreement.
(i) Notwithstanding anything to the contrary set forth in this Agreement, (i) in no event shall any indemnifying party be liable to any indemnified party for any punitive, incidental, consequential, special, or indirect Damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any Damages based on any type of multiple unless and to the extent the indemnified party is required to pay any such Damages to a third party, arising from breaches of any covenants or other obligations of the Company contained in this Agreement or any Ancillary Agreement (other than Specified Offer Letters) and (ii) a Person’s indemnification obligations pursuant to Section 7.2(a)(i9.1 or Section 9.2 (for the purposes of determining the existence of any inaccuracy or breach of any representation and warranty and calculation of the Damages attributable to such inaccuracy or breach) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller determined without giving effect to any qualification or exception with respect to “material,” “materiality,” “materially,” “Material Adverse Effect” or similar language with respect to materiality contained in any representation or warranty set forth in Article IV; provided, however, that such qualifications will not be disregarded with respect to Sections 4.6(a) and (b) and the definition of “Material Contract”.
(j) The waiver of any condition based upon the accuracy of any representation or warranty, or on the performance of or compliance or non-compliance with any covenant or obligation, will not affect the right to indemnification, compensation or other remedy based upon such representations, warranties, covenants and obligations.
(k) The right to indemnification compensation or other remedy based upon the representation, warranties, covenants or obligations contained in this Agreement (or any certificate or document delivered pursuant hereto) will not be affected by any investigations (including any environmental investigation or assessment) conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with any such Damagesrepresentation, whether warranty, covenant or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided obligation.
(l) Each Seller Indemnity Party hereby agrees that (i) the Seller availability of indemnification of the Purchaser Indemnified Parties under this Article IX shall be directly liable determined without regard to any right to indemnification, advancement, contribution or reimbursement that such Seller Indemnity Party may have from the Buyer Indemnified Persons for Company (whether such Damages rights may arise from or pursuant to Section 7.2(a)(i) in excess applicable Law, Contract, the Organizational Documents of the Indemnification Deductible up to an amount not to exceed $250,000 (Company, the “Cap”Sellers, or otherwise), and (ii) the such Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) Indemnity Party shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once any indemnification, advancement, contribution or reimbursement from Purchaser, the Company or any of their respective Affiliates for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer amounts for which the Purchaser Indemnified Person shall Parties would be entitled to indemnification under this Agreement Article IX (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating determined without regard to any matter to the extent that there is included in the Interim Financial Statements a specific liability thresholds, deductibles, caps, survival periods or reserve relating to such matterother limitations).
(fm) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception Notwithstanding anything in any representation or warranty relating to or referring this Article IX to the terms “material”contrary, “materiality”if a claim may be characterized in multiple ways in accordance with this Article IX such that such claim may or may not be subject to different caps, “Material Adverse Effect”time limitations and other limitations depending on such characterization, “then an indemnified party shall have the right to characterize such claim in all material respects” or any similar qualificationa manner that maximizes the recovery and time to assert claims permitted in accordance with this Article IX, term or phrase and may assert the claim under multiple bases for recovery hereunder; provided, however, that the foregoing shall not be interpreted to allow, and no indemnified party shall be disregardedentitled to, double recovery for the same claim.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Gambling.com Group LTD)
Certain Limitations. (ai) Except Seller shall not be liable to indemnify Buyer for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages based upon, arising out of, or otherwise in respect of the matters set forth in Section 15(a)(i) hereof once the aggregate amount of Damages actually paid by Seller to the Buyer Group with respect to such claims exceeds Two Million Dollars ($2,000,000); provided, however, that the limitation contained in this clause shall not apply to any Damages based upon, arising out of, or otherwise in respect of any falsity, breach or inaccuracy of Seller's representation and warranty with regard to title to the Assets contained in Section 5(e).
(ii) Seller shall not be liable to indemnify Buyer for which any Damages based upon, arising out of or otherwise in respect of the matters set forth in Section 15(a)(i) hereof, except to the extent that the aggregate amount of Damages exceeds One Hundred Thousand Dollars ($100,000) (the "Threshold Amount"); provided, however, that once the Threshold Amount has been exceeded the Seller shall be liable pursuant to Section 7.2(a)(ifor the entire amount of such Damages, including the Threshold Amount.
(iii) The amount of any Damages for which indemnification is provided under this Agreement shall be satisfied solely net of any amounts recovered or recoverable by recovery by Buyer the Indemnified Party from third parties (including, without limitation, amounts recovered or recoverable under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller insurance policies) with respect to any such Damages, whether or not the entirety of any such Damages is covered by or other liability. Seller and Buyer, as appropriate, shall, or shall cause each Indemnified Party to, use its reasonable best efforts to pursue promptly any claims or rights it may have against all third parties which would reduce the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and for which indemnification is provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to under this Agreement.
(biv) Notwithstanding anything Neither Seller nor Buyer shall have any obligation to indemnify the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages other or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification other persons under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expensesagainst, or (ii) for otherwise have any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability under this Agreement with respect to, lost profits or reserve relating to such matterconsequential damages.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Sale Agreement (American Mobile Satellite Corp)
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damagesbreaches of the Fundamental Representations, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for any indemnification obligations under Section 7.2(a)(i8.1(a)(ii) unless and until the aggregate amount of such Damages all indemnifiable Losses suffered by Purchaser Indemnified Parties for which Purchaser Indemnified Parties would be entitled to indemnification exceeds One Million Seven Hundred Sixty-Two Thousand Five Hundred Dollars ($250,000 1,762,500) (the “Indemnification DeductibleThreshold”), whereupon, provided the other requirements of this Article VIII have been complied with, Seller shall indemnify and hold the Purchaser Indemnified Parties harmless for the amount of such indemnifiable Losses which exceed the Threshold, as herein provided; and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representationexcept that, the Seller aggregate amount of indemnifiable Losses recoverable under Section 8.1(a)(ii), except with respect to breaches of the Fundamental Representations, by the Purchaser Indemnified Parties shall be directly liable limited to Forty-Seven Million Dollars ($47,000,000) and the Buyer Indemnified Persons aggregate amount of indemnifiable Losses recoverable under Section 8.1(a)(ii), including with respect to breaches of the extent such Damages are not covered Fundamental Representations, by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Purchaser Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal Parties shall be limited to the Purchase Price actually received by the Seller pursuant to this AgreementPrice.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII Except with respect to any claim or group breaches of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more the representations and/or and warranties set forth in this Agreement.
Section 4.1, 4.2, 4.5, 4.9 and 4.10 (ethe “Fundamental Purchaser Representations”), Purchaser shall not have any indemnification obligations under Section 8.2(a)(ii) No Buyer unless and until the aggregate amount of all indemnifiable Losses suffered by Seller Indemnified Person shall Parties for which Seller Indemnified Parties would be entitled to indemnification under exceeds One Million Seven Hundred Sixty-Two Thousand Five Hundred Dollars ($1,762,5000) (the “Purchaser Threshold”), whereupon, provided the other requirements of this Agreement (i) in respect of any Damages to Article VIII have been complied with, Purchaser shall indemnify and hold the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) Seller Indemnified Parties harmless for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefromsuch indemnifiable Losses which exceed the Purchaser Threshold, all qualifications or exception in any representation or warranty relating as herein provided; except that, the aggregate amount of indemnifiable Losses recoverable under Section 8.2(a)(ii), except with respect to or referring breaches of Fundamental Purchaser Representations, by the Seller Indemnified Parties shall be limited to Forty-Seven Million Dollars ($47,000,000) and the aggregate amount of indemnifiable Losses recoverable under Section 8.2(a)(ii), including with respect to breaches of Fundamental Purchaser Representations, by the Seller Indemnified Parties shall be limited to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedPurchase Price.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Integra Lifesciences Holdings Corp)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except Sellers shall not be liable to the Buyer Indemnitees for indemnification under Section 8.02(a) except where Losses from any individual claim or series of related claims arising in respect of indemnification under Section 8.02(a) exceeds $10,000 (the “De Minimus Amount”), in which event Sellers shall be required to pay or be liable for all such Losses from Intentional Fraud, criminal activity or willful breaches the first dollar. The aggregate amount of covenants, any Damages all Losses for which the Seller Sellers shall be liable pursuant to Section 7.2(a)(i8.02(a) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 1,500,000 (the “Cap”), and .
(iib) Buyer shall not be liable to the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i8.03(a) unless and until except where Losses from any individual claim or series of related claims in respect of indemnification under Section 8.03(a) exceeds the De 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 such Damages exceeds $250,000 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 Deductible”); and provided further that indemnification by Sellers set forth in Section 8.04(a) above shall be limited to the amounts in the case 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 Company Fundamental Representationrepresentation or warranty in Section 3.01, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder Section 3.03, Section 3.19, Section 3.20, Section 3.24, Section 4.01 and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementSection 4.04.
(be) Notwithstanding anything 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, special or indirect damages, relating to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity breach or willful breaches alleged breach of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability or diminution of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages value or any damages based on any type of multiple, except, in each case, multiple (i) in the event of diminution of value other than indemnification for amounts paid or payable to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) parties in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) third-party claim for any Damages relating to any matter to the extent that there which indemnification hereunder is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedotherwise required).
(g) Seller makes no representations or warranties regarding the amount or availability Each Indemnified Party shall take, and cause its Affiliates to take, commercially reasonable steps to mitigate any Loss upon becoming aware of any net operating lossevent or circumstance that would be reasonably expected to, capital lossor does, tax credit carryover or other Tax asset or liability of the Acquired Companies in give rise to any taxable period (or portion thereof) beginning after the ClosingLosses that are indemnifiable hereunder.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 6.2 and Section 6.3 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller The Sellers shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Purchaser Indemnitees for indemnification under Section 7.2(a)(i6.2(a) unless and until the aggregate amount of such Damages all Losses in respect of indemnification under Section 6.2(a) exceeds $250,000 200,000, exclusive of claims or groups of related claims for Losses not exceeding $10,000 (the “Indemnification Deductible”); and provided further that , in which case the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller Sellers shall be directly liable under Section 6.2(a) only for such Losses that exceed the Deductible. The Purchaser shall not be liable to Seller Indemnitees for indemnification under Section 6.3(a) until the Buyer Indemnified Persons aggregate amount of all Losses in respect of indemnification under Section 6.3(a) exceeds the Deductible, in which case the Purchaser shall be liable under Section 6.3(a) only for such Losses that exceed the Deductible.
(b) The Purchaser Indemnitees shall not be entitled to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack indemnification pursuant to Section 6.2(a) with respect to aggregate Losses in excess of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to $4,350,000 (the Purchase Price actually received by the Seller “General Cap”). The Purchaser Indemnitees shall not be entitled to indemnification pursuant to this AgreementSection 6.2(b) or Section 6.2(c) with respect to aggregate Losses in excess of an amount equal to $43,500,000. Seller Indemnitees shall not be entitled to indemnification pursuant to Section 6.3(a) with respect to aggregate Losses in excess of the General Cap. Seller Indemnitees shall not be entitled to indemnification pursuant to Section 6.3(b) or Section 6.3(c) with respect to aggregate Losses in excess of an amount equal to $43,500,000.
(bc) Notwithstanding anything to the contrary hereinin this Agreement or any other Transaction Document, except for Damages resulting from Intentional Fraudthere shall be no deductible, criminal activity cap or other limitation or restriction on, and nothing herein shall impair, any claim based upon fraud, intentional misrepresentation or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsmisconduct.
(d) An Indemnified Person entitled The Purchaser Indemnitees will not be indemnified, and the Sellers will have no liability hereunder, for (i) any Losses to indemnification by an Indemnifying Person pursuant to this Article VII the extent of any amount with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding thereto that such claim or group of related claims may constitute a breach of two or more representations and/or warranties is set forth on the Closing Statement, the Closing Payoff Certificate or Section 2.5(b) of the Disclosure Schedule and taken into account as a deduction in this Agreementdetermining the Closing Cash Consideration or (ii) any Losses constituting punitive damages except to the extent actually awarded to a third party.
(e) No Buyer Indemnified Person The amount of any Losses for which indemnification is provided under Section 6.2 or Section 6.3 shall be entitled to indemnification under this Agreement reduced by (i) any amounts that are actually recovered by the Indemnified Party from any third party with respect to such Losses and (ii) any insurance proceeds or other cash receipts or source of reimbursement that are actually received by an Indemnified Party with respect to such Losses (net of reasonable costs of recovery or collection and any retention or deductible related to an insurance claim in respect of Losses thereof); provided, however, that no Indemnified Party shall have any Damages obligation to the extent claim, seek or otherwise obtain any such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness third party recoveries or Company Transaction Expenses, insurance proceeds or (ii) for any Damages relating other reimbursement to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterwhich it may be entitled.
(f) For purposes of determining (i) whether there has been With respect to any misrepresentation or breach of claim brought by a representation or warranty and (ii) the amount of Purchaser Indemnitee against any Damages resulting therefrom, all qualifications or exception in any representation or warranty Seller relating to or referring to this Agreement, the terms “material”Sellers expressly waive any right of subrogation, “materiality”contribution, “Material Adverse Effect”advancement, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover indemnification or other Tax asset or liability of claim against any the Acquired Companies in Purchaser Indemnified Party with respect to any taxable period (or portion thereof) beginning after amounts owed by any Seller to any the ClosingPurchaser Indemnitee.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.2 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches The aggregate amount of covenants, any Damages all Losses for which the Seller shall be liable pursuant to Section 7.2(a)(i) 8.2 shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 3,750,000.00 (the “Cap”). After the first anniversary of the Closing Date, and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds all Losses for which Seller shall be liable pursuant to Section 8.2 shall not exceed $250,000 2,500,000.00 (the “Indemnification DeductibleAdjusted Cap”); and provided further that Buyer Indemnitees have not incurred Losses in an aggregate amount in excess of the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable Adjusted Cap prior to the Buyer Indemnified Persons first anniversary of the Closing Date. If, prior to the extent such Damages are not covered by first anniversary of the Indemnification Insurance Policy for any reason other Closing Date, Buyer Indemnitees have incurred aggregate Losses in excess of the Adjusted Cap, but less than the lack of good faith efforts by Cap (the “First Year Losses”), then the Buyer Indemnified Persons to seek recovery thereunder and comply with Indemnitees will have no further recourse against Seller for Losses incurred under Section 8.2 in excess of the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementFirst Year Losses.
(b) Notwithstanding anything No Buyer Indemnitee will be entitled to the contrary herein, any indemnification pursuant to Section 8.2 (except for Damages resulting claims arising from Intentional Fraud, criminal activity any breach or willful breaches inaccuracy of covenants, (ithe representations or warranties contained in Section 3.20) unless the aggregate liability of all Losses would exceed on a cumulative basis an amount equal to $330,000.00 (the “Basket”), in which in which event the Seller will be required to pay or be liable for all Damages under Section 7.2(a) shall not exceed such Losses from the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementfirst dollar.
(c) The parties hereto expressly waive Nothing in this Section 8.3 shall limit or restrict any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach 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 a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsCash Proceeds.
(d) An Indemnified Person entitled The Seller shall have no right of contribution from any of the Buyer Indemnitees with respect to indemnification by an Indemnifying Person any Loss for which Seller is required to indemnify such Buyer Indemnitee pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this AgreementVIII.
(e) No Buyer Indemnified Person shall Indemnitee will be entitled to indemnification under this Agreement hereunder for Losses with respect to any Liability to the extent (i) in respect of any Damages to the extent such Damages were matter was taken into account in the calculation of determining the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, Cash Consideration or (ii) such matter was reserved for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterStatements.
(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 of determining hereof, “Tax Benefit” shall mean (i) whether there has been any misrepresentation refund or breach credit of a representation Taxes paid or warranty and (ii) the amount such Buyer Indemnitee’s liability for Taxes through a taxable period, calculated by excluding the relevant amount of any Damages resulting therefromcredit, all qualifications deduction or exception 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 any representation or warranty relating to or referring each case computed at the highest marginal Tax rates applicable to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedrecipient of such benefit.
(g) Seller makes no representations or warranties regarding the The amount or availability of any and all Losses under this Article VIII will be determined net operating lossof any amounts actually recovered by any Buyer Indemnitee or any of such Buyer Indemnitee’s Affiliates under or pursuant to any insurance policy, capital losstitle insurance policy, tax credit carryover indemnity, reimbursement arrangement or other Tax asset contract pursuant to which or liability 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 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 Acquired Companies 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 will be interpreted to restrict or otherwise limit any taxable period (party’s common law duty to mitigate a Loss it may suffer or portion thereof) beginning after the Closingincur as a result of an event that may give rise to an indemnification claim under this Agreement.
Appears in 1 contract
Certain Limitations. The party making a claim under this ARTICLE VIII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this ARTICLE VIII is referred to as the “Indemnifying Party”. The indemnification obligations set forth in this ARTICLE VIII shall be subject to the following limitations:
(a) Except Subject to the next two sentences, the sole source of indemnification of Buyer pursuant to this ARTICLE VIII shall (after satisfying the Mini-Basket and the Threshold, as and if applicable) be paid from the Indemnity Escrow Account (and only to the extent of the Indemnity Escrow Amount and only to the extent such amount remains in the Indemnity Escrow Account). Notwithstanding the foregoing, but only to the extent such Losses involve a claim under Section 8.2(b) or a breach of a Fundamental Representation and exceed the amount of funds remaining in the Indemnity Escrow Account, Buyer may seek indemnification from Seller for claims arising such Losses. Notwithstanding anything in this Agreement to the contrary, in no event shall such recovery from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which Seller exceed the Purchase Price.
(b) Seller shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i8.2(a) (other than with respect to breaches of Fundamental Representations or in the case of Seller’s Fraud) until the aggregate amount of all Losses in respect of indemnification thereunder exceeds [*] (the “Threshold”), in which event Seller shall be required to pay or be liable for Losses from the first dollar. No individual claim by Buyer shall be asserted under Section 8.2 unless and until the aggregate amount of Losses that would be payable pursuant to such Damages claim (or series of related claims) exceeds $250,000 an amount equal to [*] (the “Indemnification DeductibleMini-Basket”) (it being understood that any such individual claims (or series of related claims) for amounts less than the Mini-Basket shall be ignored in determining whether the Threshold has been exceeded and thereafter); and provided further that . Seller’s maximum liability hereunder for any indemnification claims under Section 8.2(a) (other than with respect to breaches of Fundamental Representations or in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Seller’s Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not not, when aggregated with all other indemnification obligations hereunder, exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement[*].
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution Notwithstanding anything in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value this Agreement to the extent contrary, Buyer understands, acknowledges and agrees that such diminution Seller’s maximum liability hereunder for any indemnification claims under Section 8.2 shall not, when aggregated with all other indemnification obligations hereunder, exceed the Purchase Price. Solely for purposes of value is determining the probable and reasonably foreseeable result amount of the applicable any Losses or whether any breach of representation and warranty has occurred that are the subject matter of a representationclaim for indemnification, warranty, covenant or agreement hereunder, (ii) each representation and warranty in this Agreement will be read without regard and without giving effect to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, term “material” or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants“Material Adverse Effect”.
(d) An Indemnified Person entitled to indemnification Payments by an Indemnifying Person Party pursuant to this Article VII ARTICLE VIII in respect of any Loss shall be limited to the amount of any Loss that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other payment or reimbursement received or reasonably expected to be received by the Indemnified Party (or the Acquired Companies) in respect of or in connection with any such Loss, less reasonable and documented deductions for costs incurred in, and premium increases directly arising from, obtaining such proceeds or recoveries. Each Indemnified Party shall seek full recovery under all insurance policies covering any Loss to the same extent it would if such Loss were not subject to indemnification hereunder, and each Indemnified Party shall use commercially reasonable efforts to recover under indemnity, contribution or other similar agreements, or collect other reimbursements, for any Losses prior to seeking indemnification under this Agreement. In the event that any such proceeds or recoveries are received by an Indemnified Party (or any of its Affiliates) with respect to any claim Losses after an Indemnifying Party has made a payment to an Indemnified Party with respect thereto, the Indemnified Party shall pay to the Indemnifying Party the amount of such proceeds or group of related claims shall only be entitled recoveries, less reasonable and documented deductions for direct costs incurred in obtaining such proceeds and recoveries, up to recover once for the amount the Indemnifying Party has paid with respect to such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this AgreementLosses.
(e) No Buyer Each Indemnified Person 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 would be entitled reasonably expected to, or does, give rise thereto, including incurring costs only to indemnification the minimum extent necessary to remedy the breach or set of facts that gives rise to such Loss.
(f) Seller shall not be liable under this Agreement ARTICLE VIII for any Losses (i) in respect and the amount of any Damages such Losses shall not be counted toward the Threshold or the Mini-Basket) to the extent that any such Damages were Loss (or applicable portion thereof) is caused or increased by an action or inaction by Buyer or any of its Affiliates (including the Acquired Companies) on or after the Closing Date, except for actions or inactions which Buyer and/or its Affiliates (including any Acquired Company) are required to take or otherwise refrain from under applicable Law.
(g) Notwithstanding anything contained elsewhere in this Agreement, the specific amounts that are taken into account in the calculation determination of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating Statement pursuant to ARTICLE II are subject solely to the adjustment provisions set forth in ARTICLE II and accordingly shall not be subject to any matter claim by any Indemnified Party for indemnification pursuant to this ARTICLE VIII. Further, the Indemnified Party shall not be entitled to more than one recovery with respect to the extent that there is included in same Loss, so as to avoid duplication or “double counting” of the Interim Financial Statements a specific liability or reserve relating to such mattersame Loss.
(fh) For purposes Except with respect to Buyer’s recourse to the Indemnity Escrow Amount as a source of determining recovery for indemnifiable Losses pursuant to this ARTICLE VIII, the parties hereto agree that Buyer shall not have any rights to set-off any Loss it may have against any amount due to Seller.
(i) whether there has been any misrepresentation If an Indemnified Party is entitled to indemnification under more than one clause or breach subclause of a representation or warranty and (ii) the amount of any Damages resulting therefromthis Agreement with respect to Losses, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase then such Indemnified Party shall be disregardedentitled to only one indemnification or recovery for such Losses; it being understood that this Section 8.4(i) is solely to preclude a duplicate recovery by an Indemnified Party or recovery in excess of actual damages.
(gj) Seller makes no representations Neither Buyer nor any of its Affiliates shall take any action the purpose or warranties regarding intent of which is to prejudice the amount or availability defense of any net operating loss, capital loss, tax credit carryover claim subject to indemnification hereunder or other Tax asset or liability to induce a third party to assert a claim subject to indemnification hereunder.
(k) Any indemnification for breach of the Acquired Companies representations set forth in Section 5.22 shall be limited to Losses incurred with respect to any taxable period (or portion thereof) beginning after ending on or before the ClosingClosing Date.
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Certain Limitations. The indemnification provided for in Section 8.02, Section 8.03 and Section 8.04 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which Seller and the Seller Stockholders shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i8.02(a) unless and until the aggregate amount of such Damages all Losses in respect thereof exceeds $250,000 150,000 (the “Indemnification DeductibleBasket”); , at which ▇▇▇▇ ▇▇▇▇▇▇ and provided further that Stockholders shall be required to pay or be liable for all indemnified Losses from the first dollar, regardless of the Basket. Notwithstanding the foregoing, the Basket shall not be applicable to any claims in respect of any Fundamental Representations of Seller and the case Stockholders, representations of Seller and Stockholders under Section 4.19 (Taxes) and Section 4.15 (Environmental Matters), claims for indemnification pursuant to Section 8.02(b), Section 8.02(c), Section 8.02(d) or Fraud Claims.
(b) Buyer and Newpark shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses in respect thereof exceeds the Basket, at which time Buyer and Newpark shall be required to pay or be liable for all indemnified Losses from the first dollar, regardless of the Basket. Notwithstanding the foregoing, the Basket shall not be applicable to any claims in respect of any Fundamental Representations of Buyer and Newpark, claims for indemnification pursuant to Section 8.03(b) or Fraud Claims.
(c) No Stockholder shall be liable to Buyer Indemnitees for indemnification under Section 8.04(a) until the aggregate amount of all Losses in respect thereof exceeds the Basket, at which time the Stockholder shall be required to pay or be liable for all indemnified Losses from the first dollar, regardless of the Basket. Notwithstanding the foregoing, the Basket shall not be applicable to any claims in respect of any Fundamental Representations of the Stockholders, claims for indemnification pursuant to Section 8.04(b) or Fraud Claims.
(d) For purposes of this Article VIII, any inaccuracy in or breach of any Company Fundamental Representationrepresentation or warranty, and any damages resulting therefrom 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) With respect to Seller’s and the Stockholders’ indemnity obligations under Section 8.02(a), the aggregate liability of Seller and the Stockholders to indemnify Buyer Indemnitees from and against any such Losses under Section 8.02(a) shall not exceed the amount of the Cash Escrow Fund (the “Cap”); provided that the Cap shall not be directly liable applicable to any claims in respect of any Fundamental Representations of Seller or Stockholders, representations of Seller and Stockholders under Section 4.19 (Taxes) and Section 4.15 (Environmental Matters), claims for indemnification pursuant to Section 8.02(b), Section 8.02(c), or Section 8.02(d) or Fraud Claims.
(f) The source of indemnification of Buyer Indemnitees for any Losses pursuant to Section 8.02(a) that are covered by the Buyer Indemnified Persons R&W Insurance Policy shall (after satisfying the Basket, as and if applicable) be paid (i) first from the Cash Escrow Fund, (ii) then by the R&W Insurance Policy in accordance with the terms thereof and (iii) only to the extent such Damages are not covered by Losses involve a breach of the Indemnification Fundamental Representations or a breach of Section 4.19 (Taxes) or Section 4.15 (Environmental Matters), and exceeds the aggregate of both the amount of the remaining Cash Escrow Funds and the policy limit under the R&W Insurance Policy for any reason other than with respect to such claim, jointly and severally from the lack of good faith efforts by the Seller and Stockholders, provided, that (x) Buyer Indemnified Persons may elect to seek recovery thereunder of such Losses from the Stock Escrow Shares prior to seeking recovery directly from the Seller and comply with the terms Stockholders, and conditions thereof (including y) in no event shall such recovery against a Stockholder exceed the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to portion of the Purchase Price actually received by such Stockholder (including any Stock Escrow Shares attributable to such Stockholder’s percentage ownership interest in the Seller pursuant to this AgreementSeller).
(bg) Notwithstanding anything The source of indemnification of Buyer Indemnitees for any Losses pursuant to Section 8.02(a) that are not covered by the contrary hereinR&W Insurance Policy, except for Damages resulting from Intentional Fraudor pursuant to Section 8.02(b), criminal activity Section 8.02(c) or willful breaches of covenantsSection 8.02(d) shall (after satisfying the Basket, as and if applicable) be paid
(i) first from the aggregate liability Stock Escrow Shares, (ii) then, at Buyer’s sole discretion, from the Cash Escrow Fund and (iii) jointly and severally from the Seller and Stockholders, provided, that in no event shall such recovery against a Stockholder exceed the portion of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by such Stockholder (including any Stock Escrow Shares attributable to such Stockholder’s percentage ownership in the Seller Seller). For purposes hereof, the number of Stock Escrow Shares to be delivered pursuant to this AgreementSection 8.05(g) shall be that number determined by dividing (x) the amount of the Loss, and by (ii) the Newpark Volume-Weighted Average Price.
(h) With respect to Buyer’s and Newpark’s indemnity obligations under Section 8.03(a), the aggregate liability of Buyer for all Damages under Section 7.2(b) and Newpark to indemnify Seller Indemnitees from and against any Losses shall not exceed the aggregate Purchase Price actually paid by Cap; provided that the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the Cap shall not be applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages Fundamental Representations of Buyer and Newpark, claims for indemnification pursuant to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness Section 8.03(b) or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterFraud Claims.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
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Certain Limitations. The liability of the Seller or the Buyer, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except for claims arising from Intentional FraudAt any time after the Survival Date, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable have no further obligations under this Article IX for breaches of representations and warranties of the Seller, except for Damages with respect to which the Buyer Indemnified Persons for Indemnitee has given the Seller written notice prior to such Damages pursuant to date in accordance with Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), 9.3 and (ii) the Seller Buyer shall have no liability further obligations under this Article IX for indemnification under Section 7.2(a)(i) unless breaches of representations and until warranties of the aggregate amount of such Buyer, except for Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, with respect to which the Seller shall be directly liable to Indemnitee has given the Buyer Indemnified Persons written notice prior to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply date in accordance with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementSection 9.3.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received any claim by the a Buyer Indemnitee against Seller pursuant to Section 9.1(a) shall be payable by Seller only in the event that the accumulated amount of Damages in respect of Seller's obligations to indemnify the Buyer Indemnitees under this Agreement, and (ii) Agreement shall exceed $200,000 in the aggregate liability (the "SELLER INDEMNIFICATION THRESHOLD"); provided, however, that at such time as the aggregate amount of Buyer for all Damages under Section 7.2(b) in respect of the indemnity obligations of Seller shall not exceed the aggregate Purchase Price actually paid Seller Indemnification Threshold, Seller shall thereafter be liable for any amount of Damages in excess of $100,000 suffered or incurred by the Buyer pursuant to this AgreementIndemnitees, it being the intention of the parties that any amount in excess of $100,000 of Damages comprising the Seller Indemnification Threshold shall be recoverable by Buyer against Seller in the event that the accumulated amount of Damages suffered by the Buyer Indemnitees shall exceed the Seller Indemnification Threshold.
(c) The parties hereto expressly waive any claim Notwithstanding anything to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptthe contrary herein, in each casethe absence of fraud or willful breach of this Agreement (for which there shall be no limitation), (iin no event shall the maximum aggregate liability of Seller in respect of any claims by the Buyer Indemnitees against Seller pursuant to Section 9.1(a) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result for Damages suffered or incurred by any Buyer Indemnitees exceed 20% of the applicable breach value of a representation, warranty, covenant or agreement hereunder, the Purchase Price (ii) as adjusted pursuant to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsSections 2.4 and 2.5).
(d) An Indemnified Person entitled Notwithstanding anything to the contrary herein, the limitations contained in this Section 9.5 shall not apply to claims for indemnification by an Indemnifying Person Buyer Indemnitees against Seller in respect of (i) Excluded Liabilities pursuant to this Article VII with respect Section 9.1(b) or (ii) Taxes pursuant to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this AgreementSection 9.1(c).
(e) No Notwithstanding anything to the contrary herein, any claim by a Seller Indemnitee against Buyer Indemnified Person pursuant to Section 9.2(a) shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account payable by Buyer only in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter event and to the extent that there is included the accumulated amount of the Damages in respect of Buyer's obligations to indemnify under this Agreement shall exceed $200,000 in the Interim Financial Statements a specific liability aggregate (the "BUYER INDEMNIFICATION THRESHOLD"); provided, however, that at such time as the aggregate amount of Damages in respect of the indemnity obligations of Buyer shall exceed the Buyer Indemnification Threshold, Buyer shall thereafter be liable for any amount of Damages in excess of $100,000 suffered or reserve relating to such matterincurred by the Seller Indemnitees, it being the intention of the parties that any amount in excess of $100,000 of Damages comprising the Buyer Indemnification Threshold shall be recoverable by Seller against Buyer in the event that the accumulated amount of Damages suffered by the Seller Indemnitees shall exceed the Buyer Indemnification Threshold.
(f) For purposes Notwithstanding anything to the contrary herein, the limitations contained in this Section 9.5 shall not apply to claims for indemnification by Seller Indemnitees against Buyer in respect of determining (i) whether there has been any misrepresentation Assumed Liabilities pursuant to Section 9.2(b) or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating Taxes pursuant to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedSection 9.2(c).
(g) Seller makes Notwithstanding anything to the contrary herein, in no representations or warranties regarding event shall the amount or availability maximum aggregate liability of Buyer in respect of any net operating loss, capital loss, tax credit carryover claims by the Seller Indemnitees against Buyer pursuant to Section 9.2(a) for Damages suffered or other Tax asset or liability incurred by any Seller Indemnitees exceed 20% of the Acquired Companies value of the Purchase Price (as adjusted pursuant to Sections 2.4 and 2.5).
(h) Notwithstanding anything to the contrary herein, the limitations contained in this Section 9.5 shall not apply, nor be limited in time to any taxable period claim by the Buyer Indemnitees against the Seller in respect of inadequate funding of the Employee Funds by the Seller.
(or portion thereofi) beginning after Except as set forth in Section 9.4, the Closingprovisions of Article IX shall be the sole remedy to the Parties for breach of contract.
Appears in 1 contract
Certain Limitations. (a) Except for claims arising from Intentional FraudNotwithstanding anything in this Agreement to the contrary, criminal activity neither party shall indemnify or willful breaches of covenants, any Damages for which the Seller shall otherwise be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller other party with respect to any such Damagesclaim for any breach of a representation or warranty, whether or not for the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to 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 hereincontrary, but except for Damages resulting from Intentional Fraudas otherwise provided in this subsection (b) and Schedule 10.5, criminal activity or willful breaches Sellers shall not be liable to Buyer in respect of covenants, any indemnification hereunder except to the extent that (i) the aggregate liability amount of losses of Buyer, when aggregated with the amount of losses with respect to the Multi-Stations pursuant to the Multi-Stations Agreement, if any, exceeds One Million Dollars ($1,000,000) (the "Threshold Amount") (and then only to the extent such losses, when aggregated with the amount of losses with respect to the Multi-Stations pursuant to the Multi-Stations Agreement, if any, exceed the excess of Five Hundred Thousand Dollars ($500,000)) over an amount (not in excess of $100,000) which Sellers are not required to expend in environmental remediation as a result of the Seller for all Damages under Section 7.2(aEnvironmental Threshold Amount (such excess being the "Excess Amount") shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability amount of Buyer for all Damages under Section 7.2(blosses of Buyer, when aggregated with the amount of losses with respect to the Multi-Stations pursuant to the Multi-Stations Agreement, if any, is less than the excess of Fifty Million Dollars) shall not exceed the aggregate Purchase Price actually paid ($50,000,000) over any amounts expended by the Buyer pursuant to Section 6.15 (as aggregated with the Multi-Stations as set forth therein), or with respect to which Buyer receives a proration in its favor under Section 6.15 (such excess being the "Indemnity Cap"); provided, the foregoing shall not be applicable to any amounts owed in connection with the Purchase Price or the proration adjustment thereof. In determining whether Sellers shall be obligated to indemnify Buyer under this AgreementSection 10, once the Threshold Amount has been satisfied, each representation and warranty and each covenant contained in this Agreement for which indemnity may be sought hereunder shall be read solely for purposes of determining whether a breach of such representation, warranty or covenant has occurred without regard to materiality (including Material Adverse Effect) qualifications that may be contained therein.
(c) The parties hereto expressly waive Notwithstanding any claim other provision of this Agreement to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptthe contrary, in each case, (i) in the no event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of shall a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent for such Damages were taken into account in the calculation party's consequential or punitive damages, regardless of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) theory of recovery. Each party hereto agrees to use reasonable efforts to mitigate any losses which form the basis for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterclaim for indemnification hereunder.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Certain Limitations. The indemnification provided for in Section 8.2 and Section 8.3 shall be subject to the following limitations:
(a) Except Other than in respect of Intellectual Property Losses as set out in Section 8.4(c) below, the Seller Parties shall not be liable to the Buyer Indemnitees for claims arising indemnification under Section 8.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.2(a) exceeds $42,000 (the “Basket”), in which event the Seller Parties shall be required to pay or be liable for all such Losses from Intentional Fraud, criminal activity or willful breaches the first Dollar. The aggregate amount of covenants, any Damages all Losses for which the Seller Parties shall be liable pursuant to Section 7.2(a)(i8.2(a) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 4,400,000 (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 from the first Dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 8.3(a) shall not exceed the Cap.
(c) The Seller Parties shall only be liable to the Buyer Indemnitees for indemnification under Section 8.2(a) and / or Section 8.2(c) in respect of Losses arising from the Intellectual Property Assets and Intellectual Property Agreements included in the Purchased Assets (the “Intellectual Property Losses”) from the Closing Date until the third anniversary of the Closing Date in an amount that shall not exceed the aggregate of: (i) the Holdback Amount, to the extent such amount has not been released to Seller or otherwise used to satisfy any Loss and (ii) the Seller shall have no liability value of the Genasys Common Stock as follows (A) for indemnification under Section 7.2(a)(i) unless and the period that is from the Closing Date until the aggregate amount first anniversary of the Closing Date, up to the full value of the Genasys Common Stock as of such Damages exceeds $250,000 date; (B) for the period that is from the first anniversary of the Closing Date to the second anniversary of the Closing Date, up to two-thirds of the full value of the Genasys Common Stock as of such date; (C) for the period that is from the second anniversary of the Closing Date to the third anniversary of the Closing Date, up to one-third of the full value of the Genasys Common Stock as of such date; and (D) for the period that is from the third anniversary of the Closing Date and onwards, none of the value of the Genasys Common Stock as of such date; and in each case, as not otherwise already used to satisfy any Loss (the “Indemnification DeductibleIntellectual Property Cap”); . For greater certainty, from the third anniversary of the Closing Date and provided further that onwards, the Seller Parties shall not be liable to the Buyer Indemnitees pursuant to Section 8.2(a) and / or Section 8.2(c) in respect of any Intellectual Property Losses and the case Intellectual Property Cap shall be deemed to be zero dollars for such period. In addition, at no time shall the Seller Parties be liable for any Intellectual Property Losses in respect of a Non-Practicing Entity Claim.
(d) Notwithstanding the foregoing, the limitations set forth in Section 8.4(a) and Section 8.4(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 Company Fundamental Representationrepresentation or warranty in Section 4.1, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder Section 4.2, Section 4.8, Section 4.9, Section 4.19, Section 4.21, Section 4.24, Section 5.1, Section 5.2 and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement5.4.
(e) No Buyer Indemnified Person For purposes of this ARTICLE VIII, any inaccuracy in or breach of any representation or warranty shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating determined without regard to any matter to the extent that there is included materiality, Material Adverse Effect or other similar qualification contained in the Interim Financial Statements a specific liability or reserve relating otherwise applicable to such matterrepresentation or warranty.
(f) For purposes Any insurance proceeds actually received by an Indemnified Party under any insurance policy in connection with a claim, net of determining (i) whether there has been any misrepresentation deductibles, premiums increases and any other costs or breach of a representation expenses incurred in connection with securing or warranty and (ii) obtaining such insurance proceeds, shall be taken into account in calculating the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedLosses associated with such claim.
(g) Seller makes No Indemnified Party shall be entitled to claim as a Loss any special, consequential or punitive damages (including damages for loss of profits) except to the extent such damages are awarded to a third party in connection with a Third Party Claim.
(h) An Indemnified Party shall not be entitled to double recovery for any Loss even though such Loss may have resulted from the breach of one or more representations, warranties or covenants in this Agreement, and no representations or warranties regarding the amount or availability claim can be made by any such Indemnified Party in respect of any net operating lossmatter for which an adjustment to the Purchase Price has been made pursuant hereto.
(i) No claim for indemnity pursuant to this Agreement may be made after the survival date for the applicable representation, capital loss, tax credit carryover warranty or other Tax asset covenant as set out in Section 8.1.
(j) Nothing in this Agreement shall in any way restrict or liability limit the general obligation at Law of an Indemnified Party to mitigate any Losses which it may suffer or incur by reason of the Acquired Companies in breach by an Indemnifying Party of any taxable period (representation, warranty, agreement or portion thereof) beginning after covenant of the ClosingIndemnifying Party under this Agreement or any Ancillary Document.
Appears in 1 contract
Certain Limitations. The indemnification provided for herein shall be subject to the following limitations (the “Liability Limits”):
(a) Except The Buyer Indemnified Parties shall not be entitled to require payment in respect of any Loss pursuant to the indemnities contained in Section 7.1 and Sellers shall not be liable for claims arising from Intentional Fraud, criminal activity any indemnity payment thereunder unless:
(i) the amount finally agreed or willful breaches adjudicated of covenants, any Damages such individual Loss exceeds CDN$200,000 (the “De Minimis Amount”);
(ii) either alone or together with the amount finally agreed or adjudicated to be payable in respect of other Losses for which Buyer would otherwise be entitled to require payment under such indemnities, such Loss exceeds 2% of the Seller total value of the Consideration Units determined as of the close of trading on the CSE on the Closing Date (the “Deductible”); provided that (A) any individual amount used to calculate the Deductible shall be no less than the De Minimis Amount, and (B) once the Deductible has been exceeded, Buyer shall only be entitled to require payment on such indemnities on the portion of Losses that exceeds the Deductible; and
(iii) notwithstanding any provision in this Agreement to the contrary, (A) the aggregate amount of all Losses for which Sellers shall be liable pursuant to Section 7.2(a)(i) 7.1 shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess exceed 15% of the Indemnification Deductible up to an amount not to exceed $250,000 (total value of the “Cap”), and (ii) Consideration Units determined as of the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until close of trading on the aggregate amount of such Damages exceeds $250,000 (CSE on the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementClosing Date.
(b) Notwithstanding anything Subject to Buyer’s obligations under the Indemnity Deed, notwithstanding any provision in this Agreement to the contrary hereincontrary, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the Buyer’s aggregate liability to Seller Indemnified Parties pursuant to Sections 7.2 shall in no event exceed the total value of the Seller for all Damages under Section 7.2(a) shall not exceed Consideration Units determined as of the aggregate Purchase Price actually received by close of trading on the Seller pursuant to this Agreement, and (ii) CSE on the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementClosing Date.
(c) The parties hereto expressly waive any claim to consequentialLosses arising out of separate sets of facts, punitive matters or indirectcircumstances will not be treated as an individual Loss, lost profitseven if each set of facts, diminution in valuematters or circumstances may be a breach of the same representation and warranty, special, exemplary and Losses of the same or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result nature arising out of the applicable breach of a representationsame or similar facts, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from matters and circumstances will be treated as an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsindividual Loss.
(d) An Indemnified Person entitled to indemnification Payments by an Indemnifying Person pursuant to this Article VII with Party in respect of any Loss shall be reduced by an amount equal to any claim Tax benefit realized, or group reasonably expected to be realized, as a result of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this AgreementLoss by the Indemnified Party.
(e) No Buyer Each Indemnified Person Party shall be entitled take, and cause its Affiliates to indemnification under this Agreement (i) in respect take, all reasonable steps to mitigate any Loss upon becoming aware of any Damages event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent such Damages were taken into account in necessary to remedy the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent breach that there is included in the Interim Financial Statements a specific liability or reserve relating gives rise to such matterLoss.
(f) For purposes Where an Indemnified Party is, or would be likely to be, entitled to recover or be compensated or indemnified by another Person, whether by way of determining contract, indemnity or otherwise (including under a policy of insurance), any amount in respect of a Claim made by the Indemnified Party, the Indemnified Party shall promptly notify the Indemnifying Party of such right or entitlement, take all reasonable steps to seek recovery of that amount and keep the Indemnifying Party at all times fully and promptly notified of the status of such recovery. The amount of the Claim by the Indemnified Party shall be reduced by any amount actually recovered by the Indemnified Party (net of all reasonable out of pocket costs and expenses incurred in doing so and any Tax paid or payable on the amount recovered).
(g) If, after an Indemnifying Party has made a payment in respect of a Claim, an Indemnified Party recovers from or is paid by another Person any amount in respect of the Loss that gave rise to the Claim, the Indemnified Party shall promptly, and in any event within 10 Business Days, pay to the Indemnifying Party, the lesser of (i) whether there has been any misrepresentation the amount of the Loss that was recovered or breach of a representation or warranty paid and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring paid by the Indemnifying Party to the terms “material”, “materiality”, “Material Adverse Effect”, “Indemnified Party in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability respect of the Acquired Companies Claim, in either case net of all reasonable out of pocket costs and expenses incurred in obtaining the recovery or payment and any taxable period (Tax paid or portion thereof) beginning after the Closingpayable as a result of receiving such recovery or payment.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Bullfrog Gold Corp.)
Certain Limitations. The party making a claim under this Article 8 is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article 8 is referred to as the “Indemnifying Party”. The indemnification provided for in Section 8.2(a) and Section 8.2(b) shall be subject to the following limitations:
(a) Except for claims arising from Intentional in the case of Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages Parties, collectively, may not recover any Losses pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification claim under Section 7.2(a)(i8.2(a)(i) (other than a claim in respect of a Company Fundamental Representation or in connection with VDA Losses) unless and until the aggregate amount of such Damages exceeds Buyer Indemnified Parties, as a group, shall have paid, incurred, suffered or sustained at least $250,000 1,000,000 in Losses (the “Indemnification DeductibleBasket”) in the aggregate, at which time the Buyer Indemnified Parties shall be entitled to recover all Losses from the first dollar; provided, however, that no Buyer Indemnified Party shall be entitled to recover any individual Losses (or series of related Losses arising from a common set of facts) under Section 8.2(a)(i) unless and until such individual Losses (or series of related Losses arising from a common set of facts) for which they would otherwise be entitled to indemnification under Section 8.2(a)(i) exceed $10,000 (the “Mini-Basket”); , and provided further that any such individual Losses (or series of related Losses arising from a common set of facts) not in excess of the Mini-Basket will not be aggregated for purposes of calculating the Basket in this Section 8.3(a).
(b) Except in the case of Fraud, in no event shall the Buyer Indemnified Parties, collectively, recover any inaccuracy Losses pursuant to an indemnification claim under Section 8.2(a)(i) (other than a claim in or breach respect of any a Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack ) in excess of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received Indemnity Holdback Amount. In connection with any claim for indemnification for which the Buyer Indemnified Parties are entitled to indemnification pursuant to Section 8.2 and subject to this Article 8, no Seller shall be liable for more than his, her or its Pro Rata Fraction of any Losses arising out of or resulting from such claim; provided, however, with respect to a breach of a representation or warranty made solely by an individual Seller contained in Article 4, or a breach of a covenant solely by an individual Seller contained in this Agreement or in any other Related Agreement (as contrasted with a breach by the Company or the Sellers collectively) (with each such individual Seller pursuant breach referred to this Agreement.
(b) Notwithstanding anything to the contrary hereinherein as an “Individual Seller Breach”), except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the such particular Seller shall be solely liable for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Losses arising only in connection with such Individual Seller pursuant to this AgreementBreach, and (ii) the aggregate liability of Buyer no other Seller shall be liable hereunder for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementany such Individual Seller Breach.
(c) Except in the case of Fraud, Sellers, collectively, may not recover any Losses pursuant to an indemnification claim under Section 8.2(b)(i) (other than a claim in respect of a Buyer Fundamental Representation) unless and until Sellers, as a group, shall have paid, incurred, suffered or sustained Losses in excess of the Basket, at which time Sellers shall be entitled to recover all Losses from the first dollar; provided, however, that no Seller shall be entitled to recover any individual Losses (or series of related Losses arising from a common set of facts) under Section 8.2(b)(i) unless and until such individual Losses (or series of related Losses arising from a common set of facts) for which they would otherwise be entitled to indemnification under Section 8.2(b)(i) exceed the Mini-Basket, and any such individual Losses (or series of related Losses arising from a common set of facts) not in excess of the Mini-Basket will not be aggregated for purposes of calculating the Basket in this Section 8.3(c).
(d) In no event shall the Liability of any Seller for all indemnification claims under this Agreement exceed the aggregate amount of Cash Consideration and Additional Consideration received or entitled to be received by such Seller, unless such indemnification claim is being made in respect of Fraud committed by such Seller or Fraud of which such Seller had actual knowledge (in which event there shall be no limitation on the Liability of such Seller hereunder or under applicable Law). In no event shall the Liability of Buyer for all indemnification claims under this Agreement exceed the aggregate amount of Cash Consideration and Additional Consideration.
(e) The amount of any Losses that are subject to indemnification under this Article 8 shall be calculated net of the amount of any insurance proceeds (including without limitation all tail insurance policies obtained in connection herewith), indemnification payments or reimbursements actually received by the Indemnified Party from third parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (iother than the Sellers) in respect of such Losses (net of any reasonable and documented out-of-pocket costs or expenses incurred in obtaining such insurance, indemnification or reimbursement, including any increases in insurance premiums or retro-premium adjustments directly resulting from such recovery).
(f) For the event avoidance of diminution doubt, any Losses subject to indemnification under this Agreement shall be determined without duplication of value recovery due to the extent that facts giving rise to such diminution of value is the probable and reasonably foreseeable result of the applicable Losses constituting a breach of a more than one representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsunder any Related Agreement).
(dg) An In no event shall any Indemnifying Party be liable to any Indemnified Person entitled Party for any punitive damages or damages which are not reasonably foreseeable, other than, in each case, as awarded to indemnification a third party.
(h) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate, only to the minimum extent required by an Indemnifying Person pursuant applicable Law, 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 this Article VII the minimum extent required by applicable Law to remedy the breach that gives rise to such Losses.
(i) Each party acknowledges and agrees that, other than with respect to any claim or group of related Related Agreement (which shall be subject to the terms and conditions thereof), such party’s sole and exclusive remedy with respect to any and all claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a any breach of two any representation, warranty, covenant, agreement or more representations and/or warranties obligation set forth herein or otherwise resulting from or arising out of this Agreement or the Transactions will be pursuant to the indemnification provisions set forth in this Agreement.
(e) No Buyer Indemnified Person Article 8; provided, that the foregoing clause of this sentence shall not be entitled to indemnification under this Agreement deemed a waiver by any party of (i) in respect of any Damages right to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness specific performance or Company Transaction Expensesinjunctive relief, or (ii) for any Damages relating right or remedy with respect to Fraud. Subject to the other limitations contained herein (including the obligation to mitigate damages set forth in Section 8.3(h)), the obligations of the Sellers under this Article 8 shall not be reduced, offset, eliminated or subject to contribution by reason of any action or inaction by any Group Company that contributed to any matter to the extent that there is included in the Interim Financial Statements a specific liability inaccuracy or reserve relating breach giving rise to such matterobligation, it being understood that Sellers, not the Group Companies, shall have the sole obligation for the indemnification obligations under this Article 8.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. Subject to the other limitations in this Article VIII, including without limitation Section 8.8(a):
(ai) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which Sellers are to have no obligation to indemnify the Seller shall be liable Buyer Indemnified Persons pursuant to Section 7.2(a)(i8.1(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller of this Agreement (except with respect to any the Seller Fundamental Representations) unless the aggregate amount of all such Damages, whether Losses incurred or not the entirety of any such Damages is covered suffered by the Indemnification Insurance Policy or whether or not Buyer Indemnified Persons exceeds the Indemnification Insurance Policy has expiredBasket (at which point Sellers (severally, been terminated or lapsed; provided that (ion the basis of the Pro Rata Percentage of each Seller) the Seller shall be directly liable to indemnify and hold harmless the Buyer Indemnified Persons for all such Damages pursuant to Section 7.2(a)(i) Losses in excess of the Indemnification Deductible up Basket, subject to an amount the other limitations set forth in Article VIII).
(ii) Except with respect to the Seller Fundamental Representations, the aggregate Liability of Sellers in respect of claims for indemnification pursuant to Section 8.1(a)(i) of this Agreement is not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons Retention Escrow Amount solely to the extent such Damages amount remains available in the Escrow Fund.
(iii) The aggregate Liability of Sellers in respect of claims for indemnification pursuant to Section 8.1(a)(i) for any breach of, or inaccuracy in, the Seller Fundamental Representations, or for claims for indemnification pursuant to Sections 8.1(a)(iii) and 8.1(a)(iv), shall not exceed $880,000 (less any amounts previously applied against the retention under the R&W Policy with respect to any other claims for indemnification pursuant to Sections 8.1(a)(i) or 8.1(a)(ii)) solely to the extent such amount remains available in the Escrow Fund.
(iv) The aggregate Liability of Sellers in respect of claims for indemnification pursuant to Section 8.1(a)(v) of this Agreement is not to exceed the Indemnity Escrow Amount solely to the extent such amount remains available in the Escrow Fund, except that claims for indemnification for New Matters may exceed such amount and be brought after the exhaustion of the Escrow Fund, but not in excess of $1,000,000 individually or in the aggregate.
(v) The aggregate Liability of Sellers in respect of claims for indemnification pursuant to Section 8.1(a)(ii) of this Agreement is not to exceed the Aggregate Cap.
(vi) For the avoidance of doubt, the limitations set forth in Section 8.1(b)(i) of this Agreement are not covered by the Indemnification Insurance Policy to apply to claims for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller indemnification pursuant to Sections 8.1(a)(ii) through Section 8.1(a)(v) of this Agreement.
(bvii) Notwithstanding anything Payments by any Sellers pursuant to Section 8.1(a) of this Agreement in respect of any Losses shall be limited to the contrary hereinamount of any Liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, except for Damages resulting from Intentional Fraud, criminal activity contribution or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price other similar payment actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification (excluding however, recoveries under this Agreement the R&W Policy) within twelve (i12) months from when Losses occurred in respect of any Damages to such claim (net of costs of recovery and the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount present value of any Damages resulting therefromassociated increase in insurance premiums or retentions). The Buyer Indemnified Persons shall use commercially reasonable efforts to recover under insurance policies; provided, all qualifications however, that the Buyer Indemnified Persons shall not be required to commence any litigation or exception bear any expenses not fully reimbursed by Sellers in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedconnection with such efforts.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Membership Interest and Warrant Purchase Agreement (Hibbett Sports Inc)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations: (a) Except (i) Seller Indemnitors shall not be liable to the Buyer Indemnitees for claims arising indemnification under Section 8.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) exceeds fifty thousand dollars ($50,000) (the “Tipping Basket”), in which event Seller Indemnitors shall be required to pay or be liable for all such Losses from Intentional Fraudthe first dollar, criminal activity or willful breaches and (ii) the aggregate amount of covenants, any Damages all Losses for which the Seller Indemnitors shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller 8.02(a), other than with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess a breach of the Indemnification Deductible up to an amount Fundamental Representations, shall not to exceed eight million dollars ($250,000 8,000,000) (the “Cap”)) and (iii) the aggregate amount of all Losses for which Seller Indemnitors shall be liable pursuant to a breach of the Fundamental Representations in Section 8.02(a) and Section 8.02(b) shall not exceed the Purchase Price, including the Migration Payment Amount, to the extent actually paid to Sellers.
(i) 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 Tipping Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar, and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 all Losses for which Buyer shall be liable pursuant to Section 8.03 shall not exceed the Cap.
(c) Notwithstanding the “Indemnification Deductible”); foregoing, the limitations set forth in Section 8.04(a) and provided further that in the case 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 Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsRepresentations.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to For purposes of this Article VII with respect ARTICLE VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any claim materiality, Material Adverse Effect or group of related claims shall only be entitled other similar qualification contained in or otherwise applicable to recover once for such claim representation or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementwarranty.
(e) No Buyer Indemnified Person shall be entitled Each Party agrees to indemnification under this Agreement (i) in respect mitigate its respective Losses after becoming aware of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterclaim as required by applicable Law.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 6.02 and Section 6.03 shall be subject to the following limitations:
(a) Except Seller shall not be liable to the Buyer Indemnitees for claims arising from Intentional Fraudindemnification under Section 6.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 6.02(a) exceeds $250,000 (the “Deductible”), criminal activity in which event Seller shall be required to pay or willful breaches be liable for Losses in excess of covenants, any Damages the Deductible. The aggregate amount of all Losses for which the Seller shall be liable pursuant to Section 7.2(a)(i6.02(a) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 7,762,500 (the “Cap”) except, in the case of each of the Deductible and the Cap, to the extent that any such Loss arises from or relates to either criminal activity of the Company or Seller or an action or inaction that constitutes fraud, intentional misrepresentation or gross negligence (and no such Losses shall count towards satisfaction of the Deductible or the Cap) or a breach or alleged breach by the Company or Seller of a Fundamental Representation (and no such Losses shall count towards satisfaction of the Deductible or the Cap), and .
(iib) Buyer shall not be liable to the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i6.03(a) unless and until the aggregate amount of such Damages all Losses in respect of indemnification under Section 6.03(a) exceeds $250,000 (the “Indemnification Deductible”); and provided further that , in which event Buyer shall be required to pay or be liable for Losses in excess of the Deductible. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 6.03(a) shall not exceed the Cap, except, in the case of each of the Deductible and the Cap, to the extent that any such Loss arises from or relates to a breach or alleged breach by Buyer of a Fundamental Representation (and no such Losses shall count towards satisfaction of the Deductible or the Cap).
(c) For purposes of this ARTICLE VI, any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) or the amount of Losses arising therefrom shall be determined without regard to any Damages resulting therefrommateriality, all qualifications Material Adverse Effect or exception other similar qualification contained in any or otherwise applicable to such representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedwarranty.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Sunworks, Inc.)
Certain Limitations. The liability of the Seller, Parent or the Buyer, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except At any time after the applicable Survival Date for claims arising from Intentional Frauda representation and warranty, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable have no further obligations under this Article IX for breaches of such representations and warranties of the Seller, except for Damages with respect to which the Buyer Indemnified Persons for Indemnitee has timely given the Seller written notice prior to such Damages pursuant to Section 7.2(a)(i) date in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), accordance with Sections 8.1 and 9.3 and (ii) the Seller Buyer shall have no liability further obligations under this Article IX for indemnification under Section 7.2(a)(i) unless and until the aggregate amount breaches of such representations and warranties of the Buyer, except for Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, with respect to which the Seller shall be directly liable to Indemnitee has given the Buyer Indemnified Persons written notice prior to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder date in accordance with Sections 8.1 and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement9.3.
(b) Notwithstanding anything to the contrary herein, except for with respect to Fraud Claims, any claim by a Buyer Indemnitee against Seller pursuant to Section 9.1(a) shall be payable by Seller only in the event that the accumulated amount of Damages resulting from Intentional Fraud, criminal activity or willful breaches in respect of covenants, (i) Seller’s obligations to indemnify the Buyer Indemnitees under this Agreement shall exceed $100,000 in the aggregate liability (the “Seller Indemnification Threshold”); provided, however, that at such time as the aggregate amount of Damages in respect of the indemnity obligations of Seller shall exceed the Seller Indemnification Threshold, Seller shall thereafter be liable for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid suffered or incurred by the Buyer pursuant to this AgreementIndemnitees in excess of such initial $100,000 of Damages.
(c) The parties hereto expressly waive any claim Notwithstanding anything to consequentialthe contrary herein, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptexcept with respect to Fraud Claims (for which there shall be no limitation), in each case, no event shall the maximum aggregate liability of Seller in respect of any claims by the Buyer Indemnitees against Seller pursuant to
Section 9.1 (ia) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result for Damages suffered or incurred by any Buyer Indemnitees exceed 10% of the applicable value of the Purchase Price (as adjusted pursuant to Section 2.4), except that with respect to Damages suffered or incurred by any Buyer Indemnitee due to a breach of a representation, warranty, covenant or agreement hereunder, Section 3.16 the maximum aggregate liability of Seller shall be 20% of the value of the Purchase Price (ii) as adjusted pursuant to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsSection 2.4).
(d) An Indemnified Person entitled Notwithstanding anything to the contrary herein, the limitations contained in this Section 9.5 shall not apply to claims for indemnification by an Indemnifying Person Buyer Indemnitees against Seller in pursuant to this Article VII Sections 9.1(b), 9.1(c), 9.1(d), and 9.1(e); provided, however, that except for Fraud Claims, Buyer’s or Parent’s (or any Buyer Indemnitee’s) right to make a claim for indemnification under Sections 9.1(b), 9.1(c), 9.1(d), and 9.1(e) shall expire with respect to any claim such claims which are not made on or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages prior to the extent such Damages were taken into account in date five years following the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterDate.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 9.02 and Section 9.04 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches The Indemnified Party shall take reasonable steps to mitigate any Loss to the extent required by Law.
(b) The maximum aggregate amount of covenants, any Damages all Losses for which the Seller Equityholders shall be liable herein shall not exceed the Total Indemnification Cap.
(c) Other than with respect to Losses due to Parent’s failure to pay the Parent Merger Shares, Earnout Consideration, or Refunded Liability Amounts as required hereunder, the maximum aggregate amount of all Losses for which Parent, Merger Sub, and/or the Surviving Corporation shall be collectively liable in the aggregate shall not exceed the Total Consideration, less (ii) the aggregate amount of all Assumed Liabilities, Earnout Consideration, and Refunded Liability Amounts and any indemnification payments or other Losses, in each case paid by Parent, Merger Sub and the Surviving Corporation as of the applicable date.
(d) Other than with respect to Losses due to Parent’s failure to pay the Parent Merger Shares, Earnout Consideration, or Refunded Liability Amounts as required hereunder, no Equityholder Indemnitee shall be entitled to recover indemnifiable Losses unless and until the total amount of all Losses that have been suffered or incurred by one or more of the Equityholder Indemnitees exceeds O▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars ($100,000), after which time, subject to the terms and conditions of this ARTICLE IX, Equityholder Indemnitees shall be entitled to recover for all indemnifiable Losses pursuant to Section 7.2(a)(i9.04(a) in excess thereof. No Parent Indemnitee shall be entitled to recover indemnifiable Losses unless and until the total amount of all Losses that have been suffered or incurred by one or more of the Parent Indemnitees exceeds O▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars ($100,000), after which time, subject to the terms and conditions of this ARTICLE IX, Parent Indemnitees shall be entitled to recover for all indemnifiable Losses pursuant to Section 9.02(a) in excess thereof.
(e) Subject to Section 9.05(d), all Losses for indemnification claims under Section 9.02 shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse set-off against the Seller payment of any Earnout Consideration, if applicable, and only to the extent such Earnout Consideration has not yet been paid to Equityholders. A Parent Indemnitee has no right to satisfy indemnification claims for Losses pursuant to Section 9.02 out of Earnout Consideration to the extent actually paid to an Equityholder, or to seek indemnification for Losses that exceeds the amount of Earnout Consideration not yet paid to the Equityholders.
(f) None of the limitations set forth herein shall apply to any claim determined by a court of competent jurisdiction or arbitrator to constitute fraud, intentional misrepresentation or willful misconduct. If a court of competent jurisdiction or arbitrator determines that any Equityholder has engaged in fraud, intentional misrepresentation or willful misconduct in connection with this Agreement or any of the Transaction Documents (“Culpable Equityholder”), then none of the limitations set forth in this Section 9 shall apply to any Culpable Equityholder. A Parent Indemnitee has no right to satisfy indemnification claims for Losses pursuant to this Section 9.02(f) against any Equityholder other than a Culpable Equityholder, or to seek indemnification for Losses that exceeds the amount of Additional Payments unpaid to such non-culpable Equityholder.
(g) The Equityholders shall not be obligated to indemnify any Parent Indemnitee with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value Loss to the extent that the amount of such diminution of value is the probable Loss was reflected as a current liability or reserve and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account subtracted in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterfinal Payoff Liabilities.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Merger Agreement (OncoCyte Corp)
Certain Limitations. The liability of Asset Seller, Selling Shareholders or Buyer for claims under this Agreement shall be limited by the following:
(a) Except for No claim or claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable asserted by a Seller Indemnitee or Buyer Indemnitee pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety provisions of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that this Article 11 (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages other than a claim pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”clause 2.05A), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 50,000 (the “Indemnification Deductible”); and provided further that Australian) in the case of any inaccuracy in aggregate, whereupon such Buyer Indemnitee or breach of any Company Fundamental Representation, the Seller Indemnitee shall be directly liable entitled to assert one or more claims hereunder for the full amount of its Damages as to which such claim or claims are asserted, including the first $50,000 (Australian). Notwithstanding the foregoing, indemnification for Damages pursuant to the Buyer Indemnified Persons to Excluded Matters and the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack matters described in clauses (iii) through (viii) of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder Section 11.02(a) and comply with the terms and conditions thereof clauses (including the deductible iii) of Section 11.03(a) shall be provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementfrom first dollar without a threshold.
(b) Notwithstanding anything to the contrary herein, except for The parties hereto agree that Buyer may set off Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages against Earn-Out Payments and payments under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement2.05A(c)(ii).
(c) The parties hereto expressly waive agree that if this Agreement terminates prior to Closing for any reason, each party must bear its own costs of negotiating this Agreement and all investigations and due diligence relating to this Agreement, and in no circumstances can any party claim to consequential, punitive damages for loss of profit or indirect, lost profits, diminution in value, special, exemplary or similar other consequential damages or from any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsother party.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only The Buyer will not be entitled to recover once for such make any claim in respect of, and acknowledges the warranties in Section 4 and 5 are given subject to, all matters in relation to which the Buyer (including its directors, employees and consultants) has actual knowledge at or group prior to the signing of related claims notwithstanding this Agreement that such claim or group the warranties have been breached. The Buyer must notify the Selling Shareholders if it has actual knowledge of related claims may constitute any matter which is a breach of two warranty by the Selling Shareholders or more representations and/or warranties set forth in Asset Seller at the date of this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Channell Commercial Corp)
Certain Limitations. The indemnification provided for in Section 13.01 shall be subject to the following limitations:
(a) Except as expressly set forth in this Section 13.03(a), Seller’s liability for any Breach of any representation or warranty in this Agreement (other than Fundamental Representations) or in any document executed by Seller (or the Seller on behalf of Seller) pursuant to this Agreement, or in any other instruments delivered at Closing shall, subject to the limitations of survival set forth herein, be limited to claims arising from Intentional Fraudin excess of One Hundred Fifty Thousand Dollars ($150,000.00) (the “Basket Amount”) in the aggregate, criminal activity with respect to all claims, and after the Basket Amount has been reached, Purchaser shall be entitled to make a claim for indemnification for all claims with respect to the Breach of any representations or willful breaches warranties back to dollar zero.
(b) Except with respect to the Fundamental Representations, the aggregate amount of covenants, any Damages all Losses for which the Seller shall be liable pursuant to Section 7.2(a)(i) 13.01 shall be satisfied solely by recovery by Buyer under not exceed 10% of the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety Purchase Price. The aggregate amount of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) all Losses for which the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant purchase to Section 7.2(a)(i) 13.01 in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply connection with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to Fundamental Representations shall not exceed the Purchase Price actually received Price.
(c) Payments by the Seller pursuant to Section 13.01 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be received by the Purchaser (or the Company) in respect of any such claim. The Purchaser 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.
(bd) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received Payments by the Seller pursuant to this Agreement, Section 13.01 in respect of any Loss shall be reduced by an amount equal to (i) any Tax benefit realized or reasonably expected to be realized as a result of such Loss by the Purchaser and (ii) any reserves or accruals on the aggregate liability books of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by Company as of the Buyer pursuant Closing in respect of such matter if and to this Agreementthe extent such reserves or accruals were reflected in the Closing Statement or the Financial Statements.
(ce) The parties hereto expressly waive In no event shall the Seller be liable to the Purchaser for any claim to punitive, incidental, consequential, punitive special or indirectindirect damages, lost profitsincluding loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution in value, special, exemplary or similar damages of value or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been The Purchaser shall take, and cause its Affiliates to take, all reasonable steps to mitigate any misrepresentation or breach of a representation or warranty and (ii) the amount Loss upon becoming aware of any Damages resulting therefromevent or circumstance that would be reasonably expected to, all qualifications or exception in any representation or warranty relating to or referring does, give rise thereto, including incurring costs only to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedminimum extent necessary to remedy the breach that gives rise to such Loss.
(g) The Seller makes no shall not be liable under this Article XIII for any Losses based upon or arising out of any inaccuracy in or breach of any of the representations or warranties regarding the amount of Seller contained in this Agreement if Purchaser had knowledge of such inaccuracy or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after breach prior to the Closing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Dream Finders Homes, Inc.)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller Other than with respect to any such DamagesLosses resulting from Fraud or a breach of Fundamental Representations, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) Seller and the Seller Related Parties shall not be directly liable to the Buyer Indemnified Persons Indemnitees for indemnification under Section 8.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) exceeds $796,250 (the “Deductible”), in which event Seller and Seller Related Parties in the aggregate shall be required to pay or be liable only for all such Damages pursuant to Section 7.2(a)(i) Losses in excess of the Deductible. Other than with respect to Losses resulting from Fraud or a breach of Fundamental Representations, (i) any amount of Losses payable to any Buyer Indemnitee in respect of indemnification under Section 8.02(a) shall be paid solely and exclusively from the Indemnification Deductible up Escrow Fund in accordance with the terms hereof and of the Escrow Agreement; and (ii) Seller’s and Seller Related Parties’ liability for indemnification of Losses pursuant to an amount not Section 8.02(a) shall be limited, in the aggregate, to exceed $250,000 the Indemnification Escrow Fund (the “Cap”), . Notwithstanding anything contained herein to the contrary Seller and (ii) the Seller shall have no Related Parties maximum aggregate liability for indemnification for Losses in respect of indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”8.02(a); and provided further that in the case of any inaccuracy in or , including from a breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason or Article VI (other than Losses resulting from Fraud), shall not exceed, in the lack aggregate, the Base Purchase Price.
(b) Without limiting the effect of good faith efforts any other limitation contained in this Article VIII, for purposes of computing the amount of any Losses incurred by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for thereinIndemnitees under this Article VIII, the coverage limit being exceeded or coverage being denied), up to there shall be deducted an amount equal to the Purchase Price amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements actually received by Buyer Indemnitees in connection with such Losses or any of the circumstances giving rise thereto (it being understood that the Buyer Indemnitees shall use commercially reasonable efforts to obtain such proceeds, payments or reimbursements, but the possibility of recovering such amounts shall in no way delay the resolution or payment of any indemnification under this Article VIII), net of costs and expenses incurred by the Buyer Indemnitees in connection with such recoveries. If the Buyer Indemnitees receive any insurance proceeds, indemnification payments, contribution payments or reimbursements for any Losses subsequent to an applicable indemnification payment under this Article VIII, then such member of the Buyer Indemnitees shall promptly reimburse Seller pursuant to this Agreement.
(b) Notwithstanding anything for any indemnification payment previously made up to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually amount received by the Seller pursuant to this AgreementBuyer Indemnitees, and (ii) the aggregate liability net of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid any expenses incurred by the Buyer pursuant to this AgreementIndemnitees in collecting such amount.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Membership Interest and Asset Purchase Agreement (Endo International PLC)
Certain Limitations. The indemnification provided for in Section 9.02 and Section 9.04 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches The Indemnified Party shall take reasonable steps to mitigate any Loss to the extent required by Law.
(b) The maximum aggregate amount of covenants, any Damages all Losses for which the Seller Equityholders shall be liable herein shall not exceed the Total Indemnification Cap.
(c) Other than with respect to Losses due to Parent’s failure to pay the Parent Merger Shares, Earnout Consideration, or Refunded Liability Amounts as required hereunder, the maximum aggregate amount of all Losses for which Parent, Merger Sub, and/or the Surviving Corporation shall be collectively liable in the aggregate shall not exceed the Total Consideration, less (ii) the aggregate amount of all advances made to the Company by Parent, Liabilities, Earnout Consideration, and Refunded Liability Amounts and any indemnification payments or other Losses, in each case paid by Parent, Merger Sub and the Surviving Corporation as of the applicable date.
(d) Other than with respect to Losses due to Parent’s failure to pay the Parent Merger Shares, Earnout Consideration, or Refunded Liability Amounts as required hereunder, no Equityholder Indemnitee shall be entitled to recover indemnifiable Losses unless and until the total amount of all Losses that have been suffered or incurred by one or more of the Equityholder Indemnitees exceeds O▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars ($100,000), after which time, subject to the terms and conditions of this Article IX, Equityholder Indemnitees shall be entitled to recover for all indemnifiable Losses pursuant to Section 7.2(a)(i9.04(a) in excess thereof. No Parent Indemnitee shall be entitled to recover indemnifiable Losses unless and until the total amount of all Losses that have been suffered or incurred by one or more of the Parent Indemnitees exceeds O▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars ($100,000), after which time, subject to the terms and conditions of this Article IX, Parent Indemnitees shall be entitled to recover for all indemnifiable Losses pursuant to Section 9.02(a) in excess thereof.
(e) Subject to Section 9.05(d), all Losses for indemnification claims under Section 9.02 shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse set-off against the Seller payment of any Earnout Consideration, if applicable, and only to the extent such Earnout Consideration has not yet been paid to Equityholders. A Parent Indemnitee has no right to satisfy indemnification claims for Losses pursuant to Section 9.02 out of Earnout Consideration to the extent actually paid to an Equityholder, or to seek indemnification for Losses that exceeds the amount of Earnout Consideration not yet paid to the Equityholders.
(f) None of the limitations set forth herein shall apply to any claim determined by a court of competent jurisdiction or arbitrator to constitute fraud, intentional misrepresentation or willful misconduct. If a court of competent jurisdiction or arbitrator determines that any Equityholder has engaged in fraud, intentional misrepresentation or willful misconduct in connection with this Agreement or any of the Transaction Documents (“Culpable Equityholder”), then none of the limitations set forth in this Section 9.05 shall apply to any Culpable Equityholder. A Parent Indemnitee has no right to satisfy indemnification claims for Losses pursuant to this Section 9.05(f) against any Equityholder other than a Culpable Equityholder, or to seek indemnification for Losses that exceeds the amount of Additional Payments unpaid to such non-culpable Equityholder.
(g) The Equityholders shall not be obligated to indemnify any Parent Indemnitee with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value Loss to the extent that the amount of such diminution of value is the probable Loss was reflected as a current liability or reserve and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account subtracted in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterfinal Payoff Liabilities.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 9.02 and Section 9.03 shall be subject to the following limitations:
(a) Except Seller shall not be liable to the Buyer Indemnitees for claims arising indemnification under Section 9.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 9.02(a) exceeds $175,000.00 (the “Basket”), in which event Seller shall be required to pay or be liable for all such Losses from Intentional Fraud, criminal activity or willful breaches the first dollar. The aggregate amount of covenants, any Damages all Losses for which the Seller shall be liable pursuant to Section 7.2(a)(i9.02(a) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 2,500,000.00 (the “Cap”). The aggregate amount of all Losses for which Seller shall be liable pursuant to Section 9.02(c) shall not exceed the Purchase Price less any income taxes due thereon, as adjusted for any reduction in Purchase Price pursuant to Section 9.08. Seller may defer payment of any amounts due and payable to Buyer pursuant to this ARTICLE IX for a period of eighteen (ii18) months, provided that such amounts deferred shall not exceed the amount of the income taxes previously paid by Seller related to the Purchase Price that is expected to be refunded to Seller due to the reduction in Purchase Price pursuant to Section 9.08 below.
(b) Buyer shall not be liable to the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i9.03(a) unless and until the aggregate amount of all Losses in respect of indemnification under Section 9.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Damages exceeds $250,000 Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 9.03(a) shall not exceed the Cap.
(c) Notwithstanding the “Indemnification Deductible”); foregoing, the limitations set forth in Section 9.04(a) and provided further that in the case Section 9.04(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 Company the Fundamental RepresentationRepresentations and Warranties; provided, however, Seller’s aggregate liability for all indemnifiable Losses (except in the case of fraud on the part of Seller in the making of the representations and warranties set forth in this Agreement) shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to exceed an amount equal to the Purchase Price actually received by Price. For the avoidance of doubt, the limitations set forth in this Section 9.04 shall not apply to fraud on the part of Seller pursuant to this Agreement.
(b) Notwithstanding anything to in the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability making of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, representations and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(fd) For purposes of calculating the amount of any Loss pursuant to this ARTICLE IX, but not for purposes of determining (i) whether there has been any misrepresentation an inaccuracy in or breach of a any representation or warranty and (ii) the amount warranty, any inaccuracy in or breach of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating shall be determined without regard to or referring to the terms “material”any materiality, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover Effect or other Tax asset similar qualification contained in or liability of the Acquired Companies in any taxable period (otherwise applicable to such representation or portion thereof) beginning after the Closingwarranty.
Appears in 1 contract
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller The Indemnifying Parties shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i7.2(a) unless and until the aggregate amount of such Damages all Losses in respect of indemnification under Section 7.2(a) exceeds $250,000 1,000,000 (the “Indemnification DeductibleBasket”); and provided further that , in which event the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller Indemnifying Parties shall be directly liable to for all such Losses in excess of the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementBasket.
(b) Notwithstanding anything Absent fraud or intentional breach by the Parties prior to the contrary hereinCombination Merger Effective Time, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability amount of Losses with respect to which the Seller for all Damages Indemnitees may be entitled under Section 7.2(a) 7.2 shall not exceed the aggregate Purchase Price Escrow Amount and in no event will any of the Indemnifying Parties be liable for an amount that is greater than the Surge Merger Consideration actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementsuch Indemnifying Parties.
(c) The parties hereto expressly waive Payments by the Indemnifying Parties pursuant to Section 7.2 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received (or Surviving Surge, Surviving Motor, ParentCo or any of their respective Affiliates) in respect of any such claim.
(d) Payments by the Indemnifying Parties pursuant to Section 7.2 in respect of any Loss shall be reduced by an amount equal to any Tax benefit actually received by the Indemnitees as a result of such Loss in the year in which the Loss was incurred (such Tax benefit, if any, being determined for such year on a “with or without” basis).
(e) To the extent required by Law, the Indemnitees shall use their commercially reasonable efforts to mitigate any Losses for which the Indemnitees are entitled to indemnification under Section 7.2, including with respect to submitting to a relevant insurance provider a claim for recovery; provided, that no Indemnitee shall be required to litigate or pursue any other Proceedings against an insurance provider.
(f) Any Losses for indemnification under Section 7.2 shall be determined without duplication of recovery by reason of the set of facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or undertaking, or one or more rights to indemnification.
(g) Except with respect to those actually awarded and paid on account of a Third Party Claim, in no event shall a Person be liable for any(i) punitive or exemplary damages or (ii) incidental, consequential, punitive special or indirectindirect damages, lost profitsloss of future revenue or income, loss of business reputation or opportunity, diminution in value, special, exemplary or similar damages value or any damages based on any type of multiple, except, in each case, (i) except in the event case of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, clause (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person), or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account damages are reasonably foreseeable in connection with the calculation of event that gave rise thereto or the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) matter for any Damages relating to any matter to the extent that there which indemnification is included in the Interim Financial Statements a specific liability or reserve relating to such mattersought hereunder.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Misonix Inc)
Certain Limitations. The issuance and sale of the Shares issuable pursuant to the applicable VWAP Purchase Notice (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate applicable VWAP Purchase Price actually received by Maximum Amount, (b) shall not cause the Seller pursuant Aggregate Limit or the Beneficial Ownership Limitation to this Agreementbe exceeded, and (iic) the aggregate liability of Buyer for when such Shares are aggregated with (1) all Damages under Section 7.2(bInitial Commitment Shares, (2) shall not exceed the aggregate all Initial Purchase Price actually paid Shares, (3) all Additional Commitment Shares issued or issuable by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value Company to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification Investor under this Agreement (ifor purposes of this clause (c) in respect of any Damages this Section 7.3(viii), if the applicable VWAP Purchase Condition Satisfaction Time for the applicable VWAP Purchase occurs prior to the Additional Commitment Share Trigger Date, the Company shall assume the maximum of 200,000 Additional Commitment Shares are then issuable to the Investor under this Agreement and shall aggregate all such 200,000 Additional Commitment Shares with all other Securities that have been issued by the Company pursuant to this Agreement prior to such VWAP Purchase Condition Satisfaction Time for such applicable VWAP Purchase), and (4) all Shares that have been issued or are issuable by the Company pursuant to all VWAP Purchase Notices delivered prior to the applicable VWAP Purchase Condition Satisfaction Time for the applicable VWAP Purchase, shall not cause the Exchange Cap (to the extent such Damages were taken into account applicable under Section 3.3) to be exceeded, unless in the calculation case of this clause (c) of this Section 7.3(viii), the Company’s stockholders have theretofore approved the issuance of Common Stock under this Agreement in excess of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to Exchange Cap in accordance with the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability applicable rules of the Acquired Companies in any taxable period (or portion thereof) beginning after the ClosingTrading Market.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Biohitech Global, Inc.)
Certain Limitations. (a) Except with respect to claims for claims arising from Intentional Fraud, criminal activity or willful indemnification based on breaches of covenants, any Damages for which or inaccuracies in the representations and warranties contained in Section 3.3 and 3.7 the Seller shall not be liable pursuant required to Section 7.2(a)(i) shall be satisfied solely by recovery by indemnify the Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller Indemnitees with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons claim for such Damages indemnification pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i9.1(a) unless and until the aggregate amount of such Damages its Losses exceeds $250,000 50,000 (the “Indemnification DeductibleThreshold Amount”); and provided further that , in the case of any inaccuracy in or breach of any Company Fundamental Representation, which event the Seller shall be directly liable to responsible for the Buyer Indemnified Persons to the extent full amount of such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (Losses, including the deductible Threshold Amount, provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) that the aggregate liability of the Seller for all Damages to the Buyer Indemnitees under Section 7.2(a9.1(a) shall not exceed 75% of the Final Purchase Price (the “Cap”).
(b) With respect to any claims for indemnification based on breaches of or inaccuracies in the representations and warranties contained in Sections 3.3 and 3.7, the Seller agrees to indemnify the Buyer Indemnitees from and against the entirety of any Losses the Buyer Indemnitees may suffer resulting from, arising out of, relating to, in the nature of, or caused by such breaches or inaccuracies up to the full amount of the Purchase Price.
(c) Except with respect to claims for indemnification based on breaches of or inaccuracies in the representations and warranties contained in Sections 4.1 and 4.5, the Buyer shall not be required to indemnify the Seller with respect to any claim for indemnification pursuant to Section 9.2(a) unless and until the aggregate amount of Seller’s Losses exceeds the Threshold Amount, in which event the Buyer shall be responsible for the full amount of such Loss, including the Threshold Amount, provided that the aggregate liability of the Buyer to the Seller under Section 9.2(a) shall not exceed the aggregate Purchase Price actually received by Cap. With respect to any claims for indemnification based on breaches of or inaccuracies in the representations and warranties contained in Sections 4.1 and 4.5, the Buyer agrees to indemnify the Seller pursuant to this AgreementIndemnitees from and against the entirety of any Losses the Seller Indemnitees may suffer resulting from, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequentialarising out of, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptrelating to, in each casethe nature of, (i) in the event of diminution of value or caused by such breaches or inaccuracies up to the extent that such diminution of value is the probable and reasonably foreseeable result full amount of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsPurchase Price.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to For purposes of this Article VII with respect IX, any breach of or inaccuracy in any representation or warranty shall be determined without regard to any claim materiality or group of related claims shall only Material Adverse Effect or similar qualification or exception and any qualification or requirement that a matter be entitled or not be reasonably expected to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementoccur.
(e) No Buyer Indemnified Person Except as set forth in Section 7.1 above, the rights to indemnification provided for in this Article IX shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation sole and exclusive remedy of the Final Buyer or the Seller, as the case may be, after the Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability breaches of or reserve relating to such matter.
(f) For purposes inaccuracy of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies Seller or the Buyer, respectively, herein; provided that nothing herein shall limit in any taxable period (way any such party’s remedies in respect of fraud, gross negligence or portion thereof) beginning after willful misconduct by the Closingother party in connection herewith or the transactions contemplated hereby.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 11.2 and Section 11.3 shall be subject to the following limitations:
(a) Except Seller shall not be liable to the Purchaser Indemnitees for claims arising from Intentional Fraudindemnification under Section 11.2(a) until the aggregate amount of all Damages in respect of indemnification under Section 11.2(a) exceeds $2,531,250 (the “Indemnification Threshold”), criminal activity and once the Indemnification Threshold has been exceeded, Seller shall only be required to pay or willful breaches be liable for all such Damages in excess of covenants, any the Indemnification Threshold. The aggregate amount of all Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i11.2(a) shall be satisfied solely by recovery by Buyer not exceed an amount which is, together with amounts recovered under the Indemnification R&W Insurance Policy and Buyer will have no recourse against the Seller with respect to any such DamagesPolicy, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 101,250,000 (the “Cap”), and .
(iib) Purchaser shall not be liable to the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i11.3(a) unless and until the aggregate amount of all Damages in respect of indemnification under Section 11.3(a) exceeds the Indemnification Threshold, and once the Indemnification Threshold has been exceeded, Purchaser shall only be required to pay or be liable for all such Damages exceeds $250,000 in excess of the Indemnification Threshold. The aggregate amount of all Damages for which Purchaser shall be liable pursuant to Section 11.3(a) shall not exceed the Cap.
(c) Notwithstanding the “Indemnification Deductible”); foregoing, the limitations set forth in Section 11.4(a) and provided further that in the case Section 11.4(b) shall not apply to Damages based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Company representation or warranty of any Fundamental RepresentationRepresentations; provided, however, the Seller shall aggregate amount of Damages that may be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered recovered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded Purchaser Indemnitees or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages Indemnitees under Section 7.2(a11.2(a) or under Section 11.3(a) arising from any breach of, or misrepresentation or inaccuracy in, any Fundamental Representations shall not exceed an amount which is, together with amounts recovered under the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptR&W Insurance Policy, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result excess of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsSuper Cap.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to For purposes of this Article VII XI, any inaccuracy in or breach of any representation or warranty, and the calculation of Damages with respect thereto, shall be determined without regard to any claim materiality, Seller Material Adverse Effect or group of related claims shall only be entitled Purchaser Material Adverse Effect or other similar qualification contained in or otherwise applicable to recover once for such claim representation or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementwarranty.
(e) No Buyer The representations, warranties and covenants of the Indemnifying Party, and the Indemnified Person Party's right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnified Party (including by any of its Representatives) or by reason of the fact that the Indemnified Party or any of its Representatives knew or should have known that any such representation or warranty is, was or might be inaccurate or by reason of the Indemnified Party's waiver of any condition set forth in Section 9.1.
(f) Except in the case of fraud by the Seller, in no event shall the Purchaser Indemnitees have the right under this Agreement to recover from Seller any amount which is, together with amounts recovered under the R&W Insurance Policy, in excess of the Super Cap.
(g) All Damages for which any Seller Indemnitee or Purchaser Indemnitee would otherwise be entitled to indemnification under this Agreement Article XI shall be reduced by recovery under the R&W Insurance Policy and other third-party recoveries actually received by such Seller Indemnitee or Purchaser Indemnitee in respect of any Damages incurred by such Seller Indemnitee or Purchaser Indemnitee (net of the out-of-pocket costs reasonably incurred of pursuing or obtaining such recovery). In the event any Seller Indemnitee or Purchaser Indemnitee is or may be entitled to any insurance proceeds, indemnity payments or any third-party recoveries in respect of any Damages for which such Seller Indemnitee or Purchaser Indemnitee is entitled to indemnification pursuant to this Article XI, such Seller Indemnitee or Purchaser Indemnitee shall use commercially reasonable efforts to obtain, receive or realize such proceeds, benefits, payments or recoveries; provided, however, that “commercially reasonable efforts” with respect to (i) the R&W Insurance Policy shall not include an obligation to seek “recovery” from Purchaser’s policies or programs of insurance, and (ii) any other Person shall not (x) include the commencement of any Legal Proceeding in respect of such recovery, (y) require any prolonged, continuous or repetitive efforts, and (z) include an obligation to seek recovery from any insurance carrier or program. To the extent permissible under applicable Governmental Rules and Contracts, any unsuccessful claim for recovery notwithstanding commercially reasonable efforts against a third-party that is not a customer or vendor, or a potential customer or vendor of such Seller Indemnitee or Purchaser Indemnitee, as applicable, shall be assigned in subrogation upon collection under this Agreement of the full amount of applicable Damages claimed. In the event that any such insurance proceeds, indemnity payments or other third-party recoveries are realized by a Seller Indemnitee or Purchaser Indemnitee subsequent to receipt by such Seller Indemnitee or Purchaser Indemnitee of any indemnification payment hereunder in respect of the claims to which such insurance proceeds, indemnity payments or other third-party recoveries relate, corresponding refunds shall be made promptly by the relevant Seller Indemnitee or Purchaser Indemnitee of all or the relevant portion of such indemnification payment (net of the out-of-pocket costs reasonably incurred of pursuing or obtaining such insurance proceeds, deductibles and any increased premium amounts attributable to such claim).
(h) The Seller Indemnitees and Purchaser Indemnitees shall not be entitled to recover more than once for the same Damages.
(i) No indemnity may be sought hereunder in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter but only to the extent that there the amount of such Damages) is included in the Interim Financial Statements a specific liability or reserve relating to calculations of the Net Working Capital, as finally determined, such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) that the party claiming indemnification received Purchase Price credit for such amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedDamages.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. (a) Except No claim for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages indemnification may be asserted against a Party for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety breach of any such Damages is covered by representation, warranty, covenant or agreement contained herein or in any of the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expiredother Transaction Documents, been terminated or lapsed; provided that unless:
(i) written notice of such claim is received by Vendor or Purchaser, as applicable, within thirty (30) days of the Seller shall be directly liable applicable Indemnified Party first becoming aware of the fact, matter or circumstance giving rise to such claim of indemnification, and, in any event, on or prior to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess expiration date of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and any applicable Survival Period; and
(ii) such written notice sets forth a description in reasonable detail the Seller shall have no liability facts, matters and circumstances giving rise to such claim of indemnification which the Party submitting the claim for indemnification under Section 7.2(a)(i) unless and until alleges to have occurred, the aggregate estimated amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that Losses imposed, incurred, suffered or asserted in the case of connection therewith or arising therefrom, any inaccuracy in or breach of any Company Fundamental Representationrelevant time constraints relating thereto and, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for practicable, any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementmaterial details pertaining thereto.
(b) Vendor shall not be liable under this Article 10 unless and until the cumulative aggregate amount of all Losses and Claims in respect thereof exceeds two million dollars ($2,000,000) (the "Deductible"), in which event Vendor shall only be liable for such amounts in excess of the Deductible; provided, however, that Vendor shall not be liable under this Article 10 for any individual Losses or Claims which do not exceed fifty thousand dollars ($50,000.00) ("De Minimis Losses"), which De Minimis Losses shall not be counted toward the Deductible and in no event shall Vendor have any liability hereunder for any such De Minimis Losses. Notwithstanding anything to the contrary hereincontained in this Agreement, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the Vendor's aggregate liability of the Seller for all Damages Losses and Claims under Section 7.2(a) this Article 10 shall not exceed fifty percent (50%) of the Purchase Price (the "Cap"). The Parties hereby acknowledge that the Cap shall be a single amount applicable to the aggregate Purchase Price actually received amount of all claims for indemnification by the Seller Purchaser arising under this Article 10, and that any indemnification payments made by or on behalf of Vendor pursuant to this Agreement, and (ii) Article 10 shall reduce the aggregate liability of Buyer remaining amounts available under the Cap for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementsuch claims.
(c) The parties hereto expressly waive Notwithstanding anything contained in this Agreement to the contrary, the limitations set out in this Section 9.4, including the Deductible, the De Minimis Losses and the Cap, shall not apply to any claim Losses arising from or relating to:
(i) any Taxes of the Corporation attributable to consequentialany Pre-Closing Tax Period;
(ii) any Taxes imposed on or by reason of the Pre-Closing Reorganization;
(iii) any payment or adjustment pursuant to Article 3; or
(iv) any failure to comply with section 116 of the Tax Act.
(d) Notwithstanding anything in this Agreement to the contrary, punitive no Party nor any of its Non-Party Affiliates shall be liable to another Party or indirectits Non-Party Affiliates pursuant to this Article 10 for special, lost punitive, exemplary, consequential or indirect damages, including loss of future revenue income or profits, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution in value, special, exemplary or similar damages of value or any damages based on any type of multiple, exceptwhether based on contract, in each casetort, (i) in strict liability, other law or otherwise and whether or not arising from the event other Party's or any of diminution of value its Affiliates' sole, joint or concurrent negligence, strict liability or other fault, except to the extent that such diminution of value is the probable and reasonably foreseeable result one of the applicable breach of Parties hereto is held liable for such damages to a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person Third Party and such Party is entitled to indemnification be indemnified by an Indemnifying Person any of the other Parties hereto pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement10.
(e) The amount of any Losses and Claims for which indemnification is provided under this Article 10 shall be computed net of:
(i) any insurance or other proceeds actually received by the Indemnified Party in connection with such Losses or Claims;
(ii) any Tax benefit realized or expected to be realized (including as a result of any deduction or credit) by the Indemnified Party or any of its Affiliates as a result of such Losses or Claims; and
(iii) any indemnity, contribution or other similar payment the Indemnified Party is entitled to receive from any Person with respect to such Losses or Claims. Each Indemnified Party agrees that it shall use its commercially reasonable efforts to pursue claims under any applicable insurance policies and against other Third Parties who may be responsible for Losses or Claims.
(f) No Buyer claim shall be made or be enforceable against Indemnifying Party under this Article 10 for any Losses or Claims arising out of:
(i) any fact, matter or circumstance known to the Indemnified Person Party at Closing and, without limiting the generality of the foregoing, Vendor shall not be liable to the extent that the relevant fact, matter or circumstance which causes any claim (and Vendor's and the Corporation's representations and warranties shall be qualified by any fact, matter or thing that) is disclosed:
(A) in any document, report or written or oral communication delivered to Purchaser, its Affiliates or their respective Representatives prior to the date hereof; or
(B) in a Schedule to this Agreement, the VDR or the Disclosure Letter.
(ii) any passing of, or any change in, on or after the date of this Agreement, any applicable Law (including any passing of, or change in, applicable Law on or after the date of this Agreement which takes place retrospectively);
(iii) any act, default, omission, transaction, or arrangement by the Indemnified Party or any of its Non-Party Affiliates (or any of its or their respective Representatives or successors in title) on or after the date of this Agreement (except as expressly permitted or required pursuant to this Agreement);
(iv) fraud, bad faith, or gross negligence or willful misconduct of the Indemnified Party or any of its Non-Party Affiliates (or any of its or their respective Representatives or successors in title); or
(v) any matter or thing done, or omitted to be done, by the Indemnifying Parties pursuant to, or in compliance with, the terms of this Agreement or any other document to be entered into as part of the Contemplated Transactions, or otherwise at the Indemnified Party's request in writing or with the Indemnified Party's written consent.
(g) The amount of any payments made by or on behalf of a Party under this Article 10 shall be treated for all Tax purposes as an adjustment to the Purchase Price.
(h) Notwithstanding anything to the contrary in this Agreement, Purchaser and Vendor shall not be entitled to indemnification claim any Losses or Claims under Section 10.2 or Section 10.3 arising from claims based on the determination of Purchase Price, as it is the Parties' intent that the procedures set forth in Section 3.2 shall provide the sole and exclusive remedies for such claims and that Purchaser shall not have recourse pursuant to Section 10.2 for breaches of representations, warranties or covenants contained in this Agreement to the extent the subject matter giving rise to any such claim was settled pursuant to Section 3.2 or with respect to any matter to the extent that a specific accrual or reserve for the amount of such Loss or Claim was reflected in the Financial Statements or the calculation of the Purchase Price (including the adjustments pursuant to Article 3).
(i) Notwithstanding anything to the contrary in this Article 10, Vendor shall not be liable under this Agreement Article 10 in respect of any Losses or Claims on account of Taxes (i) in respect of any Damages Pre-Closing Tax Period to the extent such Damages were taken into account in Taxes reduced the calculation of the Final Closing Working CapitalPurchase Price, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefromadjustment, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”disallowance, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount use or availability of Tax Attributes, or any net operating loss, capital loss, tax credit carryover or other Tax asset or liability Liability for Taxes in respect of the Acquired Companies in any a taxable period (or portion thereof) beginning that commences on or after the ClosingClosing Date, including as a result of the inability to utilize, or other limitation in respect of, any such Tax Attributes or (iii) related to an action of Purchaser in violation of Section 8.3(c).
(j) No Indemnified Party shall be entitled to double recovery for any Loss or Claim under this Article 9 even though such Loss or Claim may have resulted from the breach or inaccuracy of more than one of the representations, warranties, covenants and obligations of the Indemnifying Parties under this Agreement.
(k) No Indemnifying Party shall be liable under this Article 10 in respect of any Losses or Claims that are contingent unless and until such contingent Losses or Claims cease to be contingent and liability, costs, expenses or damages are actually suffered, incurred or accrued in connection therewith (whether or not any payment is then due); provided that the Indemnified Party may deliver a written notice of claim in respect of any such contingent Losses to the applicable Indemnifying Party prior to the end of the applicable Survival Period, if any, for indemnification set forth in Section 10.1 with respect to such claim, in which case such claim will not be barred by the expiration of the relevant Survival Period and will survive until finally resolved.
(l) Upon payment of any Losses or Claims with respect to a claim pursuant to this Article 10, the Indemnifying Party shall be subrogated to the extent of such payment (and to recover costs or expenses incurred by the Indemnifying Party in enforcing such recovery rights against such Person) to the rights of the Indemnified Party against any Person with respect to the subject matter of such claim for indemnification. The Indemnified Party shall assign such rights to and otherwise reasonably cooperate with the Indemnifying Party, at the cost and expense of Indemnifying Party, to pursue any claims against or otherwise recover amounts from, any Person liable or responsible for any Losses for which indemnification has been received pursuant to this Agreement.
(m) Nothing in this Agreement shall in any way restrict or limit the general obligation at law of a Party to mitigate any Losses that it may suffer or incur by reason of the breach by another Party of any representation, warranty or covenant of that other Party under this Agreement. If any Losses can be reduced by any recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by or against any other Person, an Indemnified Party shall take all commercially reasonable steps to enforce such recovery, settlement or payment. If the Indemnified Party fails to make all commercially reasonable efforts to mitigate any such Losses, then the applicable Indemnifying Parties shall not be required to indemnify the Indemnified Party for the Losses that could have been avoided if the Indemnified Party had made such efforts.
Appears in 1 contract
Sources: Share Purchase and Sale Agreement (Barnwell Industries Inc)
Certain Limitations. The indemnification provided for in Section 8.2 and Section 8.3 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches The aggregate amount of covenants, any Damages all Losses for which the Seller Rentech and Sellers shall be liable pursuant to Section 7.2(a)(i8.2(a), Section 8.2(b) shall be satisfied (solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether breach or non-fulfillment of Section 6.1) and Section 8.2(c) shall not exceed the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsedHoldback Amount; provided that such limitation shall not act as a limitation in any way upon the right of the Buyer Indemnitees to obtain recovery under the Buyer Insurance Policy).
(ib) the Seller No amounts shall be directly liable to the Buyer Indemnified Persons for such Damages payable pursuant to Section 7.2(a)(i8.2(a) (other than in respect of Fundamental Representations) or Section 8.2(b) (solely with respect to any breach or non-fulfillment of Section 6.1) unless and until the Buyer Indemnitees shall have suffered Losses in excess of $225,000 (the “Deductible”) in the aggregate, after which point the Buyer Indemnitees shall be entitled to recover only Losses with respect to claims for indemnification pursuant to Section 8.2(a) in excess of the Indemnification Deductible up Deductible.
(c) The aggregate amount of all Losses for which Buyer shall be liable pursuant to an amount Section 8.3(a) shall not exceed the Holdback Amount.
(d) No amounts shall be payable pursuant to exceed $250,000 Section 8.3(a) (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(iother than in respect of Fundamental Representations) unless and until the aggregate amount Seller Indemnitees shall have suffered Losses in excess of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that Deductible in the case of any inaccuracy in or breach of any Company Fundamental Representationaggregate, after which point the Seller Indemnitees shall be directly liable entitled to recover only Losses with respect to claims for indemnification pursuant to Section 8.3(a) in excess of the Deductible.
(e) In any claim for indemnification under this Agreement, none of Rentech, Sellers or Buyer Indemnified Persons shall be required to indemnify any Person for Losses that constitute punitive or exemplary damages, lost profits, diminution of value, consequential damages, special damages, incidental damages, indirect damages or damages based on a “multiple of profits,” “multiple of earnings” or “multiple of cash flows”; provided, however, that this limitation shall not apply if, and solely to the extent that, an Indemnified Party is entitled to indemnification for Losses from exemplary or punitive damages payable in connection with a Third Party Claim.
(f) Any Loss subject to indemnification under Section 8.2 shall be satisfied:
(i) If such Damages are not Loss may be covered by the Indemnification Buyer Insurance Policy for any reason other than Policy, to the lack of good faith efforts extent possible, first from the Buyer Insurance Policy;
(ii) If such Loss is covered by the Buyer Insurance Policy, but is not yet payable to a Buyer Indemnified Persons Party solely because of a failure to seek recovery thereunder and comply with satisfy the terms and conditions thereof retention amount under the Buyer Insurance Policy, subject to the Deductible, from the Holdback Amount;
(including iii) If such Loss is not potentially covered by the deductible provided for thereinBuyer Insurance Policy, subject to the coverage limit being exceeded or coverage being denied)Deductible, up to from the Holdback Amount in an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementfull amount of such Loss.
(bg) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to contained in this Agreement, and (ii) the aggregate liability no amounts shall be payable as a result of Buyer for all Damages any claim in respect of a Loss arising under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii8.2(a) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) any matter forming the basis for such Loss was taken into consideration in the event computation of Intentional FraudClosing Working Capital, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall but only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account it resulted in the calculation a reduction of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.01 and Section 8.02 shall be subject to the following limitations:
(a) Except Sellers shall not be liable to the Buyer Indemnitees for claims arising indemnification under Section 8.01(a) until (i) the individual breach or liability or series of breaches or liabilities related to such Seller warranty breaches or indemnified liabilities, as applicable, exceeds $10,000 and (ii) the aggregate amount of all Losses in respect of indemnification under Section 8.01(a) exceeds $150,000 (the “Basket”), in which event Sellers shall be required to pay or be liable for all such Losses from Intentional Fraud, criminal activity or willful breaches the first dollar. The aggregate amount of covenants, any Damages all Losses for which the Seller Sellers shall be liable pursuant to Section 7.2(a)(i8.01(a) (other than in the case of any fraud, intentional misrepresentation, willful misconduct or criminal conduct by or on behalf of any Seller or the Company) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess exceed 100% of the Indemnification Deductible up to an amount not to exceed $250,000 Purchase Price (the “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 Seller shall have no liability for aggregate amount of all Losses in respect of indemnification under Section 7.2(a)(i8.02(a) unless and until 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 such Damages exceeds $250,000 all Losses for which Buyer shall be liable pursuant to Section 8.02(a) (the “Indemnification Deductible”); and provided further that other than in the case of any fraud, intentional misrepresentation, willful misconduct or criminal conduct by or on behalf of the Buyer) shall not exceed the Cap.
(c) Notwithstanding the foregoing, the limitations set forth in Error! R eference source not found. and Error! Reference source not found. shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Company Fundamental Representationrepresentation or warranty in Section 4.01, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder 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 comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants5.06.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to For purposes of this Article VII with respect ARTICLE VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any claim materiality, Material Adverse Effect or group of related claims shall only be entitled other similar qualification contained in or otherwise applicable to recover once for such claim representation or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementwarranty.
(e) No Buyer Indemnified Person shall be entitled to indemnification under Notwithstanding anything in this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in contrary and for the calculation avoidance of doubt, none of the Final Closing Working Capitallimitations on indemnification set forth in this Error! R eference source not found. shall apply to any indemnification claims arising out of, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterresulting from fraud, intentional misrepresentation, willful misconduct or criminal conduct.
(f) For purposes of determining (i) whether there has been An Indemnified Party shall not be entitled to indemnification for any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrompunitive damages, all qualifications or exception in any representation or warranty relating to or referring except to the terms “material”extent any such damages are payable to a third party in connection with a Third Party Claim or except in connection with any fraud, “materiality”intentional misrepresentation, “Material Adverse Effect”, “in all material respects” willful misconduct or any similar qualification, term or phrase shall be disregardedcriminal conduct.
(g) Seller makes no representations or warranties regarding the The amount or availability of any Losses for indemnification hereunder shall be calculated net operating loss, capital loss, tax credit carryover or other Tax asset or liability of any amounts actually recovered by the Acquired Companies in Indemnified Party for such Losses under any taxable period applicable third party insurance policies (or portion thereof) beginning after the Closing.excluding self-insurance
Appears in 1 contract
Sources: Stock Purchase Agreement
Certain Limitations. The indemnification provided for in Sections 10.2 and 10.3 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches The aggregate amount of covenants, any Damages all Losses for which the Seller Company Securityholders shall be liable pursuant to Section 7.2(a)(i) 10.2 shall be satisfied solely by recovery by Buyer under not exceed the Indemnification Insurance Policy aggregate cash and Buyer will have no recourse against Parent Ordinary Shares then available in the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 Escrow Account (the “Cap”).
(b) Notwithstanding any other provision of this Agreement, and (ii) the Seller Company Securityholders shall not have no liability for indemnification under any obligation to indemnify any Parent Indemnitee pursuant to Section 7.2(a)(i) 10.2, unless and until the aggregate amount of all such Damages individual Losses incurred or sustained by all Parent Indemnitees with respect to which the Parent Indemnitees would otherwise be entitled to indemnification under Section 10.2 exceeds $250,000 1,000,000 (the “Indemnification DeductibleThreshold Amount”); , and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons then only to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not Losses exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementThreshold Amount.
(c) The parties hereto expressly waive aggregate amount of all Losses for which Parent shall be liable pursuant to Section 10.3 shall not exceed $88,900,000.
(d) Notwithstanding any claim other provision of this Agreement, Parent shall not have any obligation to consequentialindemnify any Stockholder Indemnitee pursuant to Section 10.3 unless and until the aggregate amount of all such individual Losses incurred or sustained by all Stockholder Indemnitees with respect to which the Stockholder Indemnitees would otherwise be entitled to indemnification under Section 10.3 exceeds the Threshold Amount, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value and then only to the extent that such diminution Losses exceed the Threshold Amount.
(e) The Company Stockholders shall have no right of value is contribution or other recourse against the probable and reasonably foreseeable result of the applicable breach of a representationSurviving Corporation or its Subsidiaries or their respective directors, warrantyofficers, covenant employees, Affiliates, agents, attorneys, representatives, assigns or agreement hereunder, successors for any claims asserted by Parent Indemnitees.
(iif) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) The limitations set forth in this Section 10.4 shall not apply in the event case of Intentional Fraudfraud, criminal activity or willful breaches of covenantsbreach.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Norwegian Cruise Line Holdings Ltd.)
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller No Buyer Losses shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely asserted by recovery by the Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages matter which is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expiredinsurance, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent proceeds of such Damages insurance are not covered received (net of any additional costs incurred by reason of such recovery) by the Indemnification Insurance Policy for any reason Buyer. The Buyer shall, and shall cause other than the lack Buyer Indemnitees to, use its best efforts to recover all insurance recoverable in respect of good faith efforts by the a particular Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementLoss.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of No claim may be made against the Seller for all Damages under indemnification pursuant to Section 7.2(a) 8.1 hereto with respect to any individual item of Buyer Losses, and Buyer Losses shall not exceed include any individual item, unless such item exceeds $1,000 (the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement"De Minimis Exclusion").
(c) The parties hereto expressly waive Seller shall be obligated to indemnify the Buyer Indemnitees for Buyer Losses with respect to any claim matters under Section 8.1(a) of this Agreement when, and only when, the aggregate of all such Buyer Losses with respect to consequentialall matters exceeds $75,000, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in and then the event of diminution of value Seller shall be liable for such Buyer Losses only to the extent that they exceed such diminution of value is amount (the probable and reasonably foreseeable result "Threshold"). The Seller's obligation to indemnify the Buyer Indemnitees for Buyer Losses with respect to all matters shall be limited to an amount, or amounts in the aggregate, equal to forty percent (40%) of the applicable breach of a representation, warranty, covenant or agreement hereunder, Purchase Price (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants"Cap").
(d) An Indemnified Person entitled to Notwithstanding the foregoing, neither Section 8.5(b) or (c) above shall apply to, and the Seller shall indemnify Buyer Indemnitees for all Buyer Losses with respect to, indemnification by an Indemnifying Person pursuant to this Article VII claims for a breach of the representations and warranties contained in Section 3.3 (Title) and in Section 3.13 (Taxes), it being further understood that all Buyer Losses with respect to any claim such breach shall not be applied against, or group of related claims shall only be entitled used to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementreduce, the Threshold.
(e) No Notwithstanding any other provision hereof, in no event shall the Seller be liable for or obligated to indemnify any Buyer Indemnified Person shall be entitled to indemnification under this Agreement Indemnitee (i) in respect of any Damages to the extent such Damages were Buyer Losses relate to actions taken into account in the calculation by such Buyer Indemnitee or any of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expensesits affiliates, or (ii) for from and against any Damages relating to consequential, indirect or special damages, including, without limitation, lost profits, business interruption and loss of business opportunities or goodwill (other than any matter such consequential, indirect or special damages resulting from claims from customers, vendors or employees of the Business, which claims would be subject to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(fprovisions of Sections 8.5(b) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (iic) the amount above). This exclusion of any Damages resulting therefromconsequential, all qualifications indirect or exception in any representation or warranty relating to or referring to the terms “material”special damages shall apply whether an action for recovery of damages is sought based on contract, “materiality”tort (including sole, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover concurrent or other Tax asset negligence or liability of strict liability), statute or otherwise. To the Acquired Companies in extent permitted by law, any taxable period (or portion thereofstatutory remedies which are inconsistent with this Section 8.5(a) beginning after are hereby waived by the ClosingBuyer.
Appears in 1 contract
Certain Limitations. The Buyer Indemnitees and Seller Indemnitees rights to indemnification under this Article IX shall be limited as follows:
(a) Except No Claim Notice for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall indemnification may be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller provided with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons Claim for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or other agreement hereunder, in this Agreement beyond the survival period specified in Section 9.1.
(b) The recovery of Losses by any Buyer Indemnitee pursuant to clause (i) or (ii) to the extent actually of Section 9.3(b), together with all Losses recovered by a third party other Buyer Indemnitees under such provision, shall be limited to an aggregate of $15,000,000.
(including a Governmental Bodyc) from The recovery of Losses by any Seller Indemnitee pursuant to Section 9.2, together with all Losses recovered by other Seller Indemnitees under such provision, shall be limited to an Indemnified Personaggregate of $15,000,000, provided, however, that the foregoing limitation shall not apply to any claim for indemnification or (iiirights of Seller under Sections 2.3(d), 2.4(c) in the event of Intentional Fraud, criminal activity or willful breaches of covenants5.13.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim No Buyer Indemnitee or group of related claims Seller Indemnitee shall only be entitled to recover once for Losses pursuant to Section 9.3(b)(i) and (ii) or Section 9.2, respectively, unless:
(i) the Buyer Indemnitees, collectively, or the Seller Indemnitees, collectively, shall have suffered or incurred aggregate Losses otherwise recoverable under this Article IX in an amount in excess of the Deductible, and then recovery shall be permitted only to the extent of such claim excess; and
(ii) after the Deductible has been met, the Buyer Indemnitees, collectively, or group the Seller Indemnitees, collectively, shall have suffered or incurred Losses with respect to the individual Claim or series of related claims notwithstanding Claims that arise out of substantially the same facts and circumstances for which recovery is sought in excess of $125,000, in which case the full amount of such Losses shall be recoverable, subject to the limitations imposed by the other provisions of this Section 9.4. Notwithstanding the foregoing, any claim or group for indemnification (and the Losses recoverable therefrom) that may be brought under both Section 9.3(b)(i), on the one hand, and any other subsection of related claims may constitute a breach of two or more representations and/or warranties set forth Section 9.3, on the other hand, shall not be subject to any limitation specified in this AgreementSection 9.4(d).
(e) No Notwithstanding anything to the contrary in this Agreement:
(i) For purposes of determining whether a representation or warranty contained herein, other than those set forth in Sections 3.17, 3.21, 4.4 and 4.5, has been breached for purposes of this Article IX and determining the amount of Losses suffered thereby by any Buyer Indemnified Person shall be entitled to indemnification under Indemnitee or Seller Indemnitee, as the case may be, each representation and warranty set forth in this Agreement (iother than as aforesaid), and any qualification with respect to any such representation or warranty set forth in the TexStar Disclosure Schedule in the case of representations or warranties by the Seller, 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) in respect No investigation or knowledge of any Damages 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 IX 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 such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter amount of such Loss given effect in such adjustment to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterAggregate Consideration.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the The amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating Losses required to or referring be paid pursuant to this Article IX shall be reduced to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability extent of any net operating losstax benefits actually realized, capital loss, tax credit carryover or other Tax asset insurance proceeds directly or liability of indirectly received by the Acquired Companies in any taxable period (or portion thereof) beginning after the ClosingIndemnified Party.
Appears in 1 contract
Sources: Contribution Agreement (Regency Energy Partners LP)
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller Nothing in this Agreement shall be liable pursuant deemed to Section 7.2(a)(i) require any Transferring Entity to indemnify any TowerCo Indemnitee for or in respect of any of the Real Estate Representations. Without limiting the generality of the foregoing, the sole remedies of TowerCo or CCIC in respect of a breach of any Real Estate Representation by any Transferring Entity shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that cause (i) such Transferring Entity to continue to use reasonable efforts to cure such breach, as contemplated by SECTION 4.6, until the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”)Final Closing Date, and or (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(iSite as to which such Real Estate Representation is breached to be a Maintained Site (or, at the applicable Transferring Entity's election, an Excluded Site) unless and until or to defer the aggregate amount Closing of such Damages exceeds $250,000 (Site to a later Closing Date, provided that the “Indemnification Deductible”); and provided further that in the case failure of any inaccuracy in such deferred Site to become an Included Site or breach of any Company Fundamental Representation, the Seller shall be directly liable Maintained Site on or prior to the Buyer Indemnified Persons to the extent such Damages are Final Closing shall not covered by the Indemnification Insurance Policy for constitute a default under this Agreement or give CCIC or TowerCo any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementremedy.
(b) Notwithstanding anything to the contrary contained herein, except for Damages resulting from Intentional Fraudno Transferring Entity shall have any obligation under this SECTION 12 to TowerCo Indemnitees with respect to the breach of representations, criminal activity warranties, covenants or willful breaches of covenantsagreements by BSPCI, (i) unless, until and only to the extent that the aggregate liability of all TowerCo Indemnified Losses from all such breaches exceeds on a cumulative basis $10,000,000 (the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement"DEDUCTIBLE AMOUNT"), and (ii) then only to the aggregate liability extent of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementsuch excess amount.
(c) The parties hereto expressly waive any claim Anything in this Agreement to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptthe contrary notwithstanding, in each case, (i) in the no event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to shall any Transferring Entity be liable under this Agreement for any indemnification by an Indemnifying Person obligation pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth SECTION 12 in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation excess of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to aggregate amount of the extent that there is included in the Interim Financial Statements a specific liability or reserve relating Cash Consideration having been paid to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability Transferring Entity as of the Acquired Companies in any taxable period date on which the claim for indemnification arose (or portion thereof) beginning after the Closing"MAXIMUM INDEMNIFICATION").
Appears in 1 contract
Sources: Sublease Agreement (Crown Castle International Corp)
Certain Limitations. The liability of Sellers or Buyer, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except At any time after the applicable Survival Date for claims arising from Intentional Frauda representation and warranty, criminal activity or willful (i) Sellers shall have no further obligations under this Article IX for breaches of covenantssuch representations and warranties of Sellers, any except for Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any which Buyer Indemnitee has timely given Sellers written notice prior to such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) date in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), accordance with Sections 8.1 and 9.3 and (ii) the Seller Buyer shall have no liability further obligations under this Article IX for indemnification under Section 7.2(a)(i) unless and until the aggregate amount breaches of such representations and warranties of Buyer, except for Damages exceeds $250,000 (the “Indemnification Deductible”); with respect to which Seller Indemnitee has given Buyer written notice prior to such date in accordance with Sections 8.1 and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement9.3.
(b) Notwithstanding anything to the contrary herein, except with respect to Fraud Claims, any claim by a Buyer Indemnitee against Sellers pursuant to Section 9.1(a) shall be payable by Sellers only in the event that Damages for any single breach of the representations, warranties and covenants exceeds Twenty Thousand Dollars ($20,000) (the “Per Occurrence Threshold”) and the accumulated amount of Damages resulting from Intentional Fraud, criminal activity or willful breaches in respect of covenants, Sellers’ obligations to indemnify the Buyer Indemnitees under this Agreement shall exceed One Hundred Thousand Dollars (i$100,000) in the aggregate liability (the “Seller Indemnification Threshold”); provided, however, that at such time as the aggregate amount of Damages in respect of the indemnity obligations of Sellers shall exceed the Seller Indemnification Threshold, Seller shall thereafter be liable for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid suffered or incurred by the Buyer pursuant Indemnitees in excess of such Seller Indemnification Threshold, subject to this Agreementthe maximum aggregate liability cap set forth in Section 9.5(c) below. The foregoing notwithstanding, for purposes of determining the Per Occurrence Threshold, a breach of a representation and warranty set forth in Section 3.16 related to Inventory shall be considered a single breach if such breach arises from the same root cause even if such breach affects more than one item of Inventory.
(c) The parties hereto expressly waive any claim Notwithstanding anything to consequentialthe contrary herein, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptexcept with respect to Fraud Claims (for which there shall be no limitation), in each case, no event shall the maximum aggregate liability of Sellers in respect of any claims by Buyer Indemnitees against Sellers pursuant to Section 9.1(a) for Damages suffered or incurred by any Buyer Indemnitees exceed Eighteen Million Dollars (i$18,000,000) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach value of a representation, warranty, covenant or agreement hereunder, the Purchase Price (ii) as adjusted pursuant to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsSection 2.4).
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII Except with respect to any Fraud Claims, a Buyer Indemnitee’s right to make a claim for indemnification under Sections 9.1(b), 9.1(c), 9.1(d) and 9.1(e) shall expire with respect to such claims which are not made on or group of related claims shall only be entitled prior to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementthe date five (5) years following the Closing Date.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working CapitalIN NO EVENT THAT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, Company Indebtedness or Company Transaction ExpensesPUNITIVE, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterINCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, WHETHER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, BREACH OF WARRANTY, AN EXCLUDED LIABILITY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHER TORT. FURTHERMORE, ANY DAMAGES PURSUANT TO ARTICLE IX RELATED TO INVENTORIES SHALL BE LIMITED TO THE AMOUNT PAID FOR SUCH INVENTORIES PURSUANT TO THIS AGREEMENT.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Sanmina-Sci Corp)
Certain Limitations. The liability of the Seller or the Buyer, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except for claims arising from Intentional FraudIf the Closing shall not have occurred, criminal activity or willful breaches recovery of covenants, any Damages for which the Seller shall be liable Buyer pursuant to Section 7.2(a)(i11.1 shall in no event include any punitive, exemplary, special, indirect, incidental or consequential damages whatsoever.
(b) shall be satisfied solely by recovery by Buyer under Fifteen (15) months after the Indemnification Insurance Policy and Buyer will have no recourse against Closing Date, or the Seller applicable statute of limitations with respect to any such Damagesthe representation and warranties in Section 5.2, whether or not 5.11, 5.12 and 5.14 and the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess third anniversary of the Indemnification Deductible up Closing Date with respect to an amount not to exceed $250,000 (the “Cap”), and (ii) a violation of Section 7.11 the Seller shall have no further liability or obligations under this Article 11 or this Agreement or otherwise, except for indemnification under Section 7.2(a)(iDamages with respect to which the Buyer Indemnitee has given the Seller adequate written notice prior to such date.
(c) unless and until the aggregate The amount of such Damages exceeds $250,000 otherwise recoverable under this Article 11 shall be reduced to the extent to which any Federal, state, local or foreign tax liabilities of the Seller Indemnitee or Buyer Indemnitee, as applicable, or any of their respective Affiliates (the “Indemnification Deductible”); and provided further that including in the case of any inaccuracy in or breach the Buyer, and the Subsidiary once the Closing has occurred) is decreased by reason of any Company Fundamental RepresentationDamage in respect of which such Seller Indemnitee or Buyer Indemnitee, as applicable, shall be entitled to indemnity under this Agreement.
(d) No Damages shall be recoverable by a Seller Indemnitee or Buyer Indemnitee with respect to any matter which is covered by insurance, to the extent proceeds of such insurance or other third party indemnitor are paid net of any costs incurred in connection with the collection thereof (including, but not limited to present, retrospective, or future premiums, self-insured retention amounts, deductibles, legal and administrative costs and costs of investigations) the Seller Indemnitee or Buyer Indemnitee, as the case may be, hereby agreeing to exhaust all reasonable remedies against all applicable insurers or indemnitors prior to recovering any amounts hereunder, it being understood and agreed that such reasonable remedies shall not include the commencement of litigation PROVIDED that to the extent litigation is not so commenced the indemnifying party shall be directly liable subrogated to all rights of the Seller Indemnitee or Buyer Indemnitee, as the case may be, against such insurers or indemnitors.
(e) Any payment required under this Section 11 paid to any Buyer Indemnitee or any Seller Indemnitee, as the case may be, shall be treated by the Buyer and the Seller as a further adjustment of the Purchase Price for the Assets.
(i) No Damages shall be recoverable by a Buyer Indemnitee pursuant to the provisions of this Article 11, and no claim therefor shall be asserted by a Buyer Indemnified Persons Indemnitee for any purpose whatsoever hereunder, unless the amount of the Buyer Indemnitees' Damages equals at least $300,000 in the aggregate and then only to the extent such Damages are not covered exceed $300,000 in the aggregate.
(ii) The aggregate amount of Damages recoverable pursuant to the provisions of this Article 11 by all Buyer Indemnitees shall be limited to $5,000,000.
(iii) Damages recoverable by a Buyer Indemnitee shall be recoverable solely against the Indemnification Insurance Policy for balance remaining in the Escrow and amounts owed pursuant to the Note as follows: 50% of any reason Damages to be recoverable by a Buyer Indemnitee shall be paid from the Escrow and 50% by set-off against the amounts owed pursuant to the Note except to the extent the Escrow is exhausted in which case such Damages shall be paid by set-off against the amounts owed pursuant to the Note.
(iv) In no event shall Damages recoverable by Buyer Indemnitees in the aggregate pursuant to this Article 11 exceed, or be recoverable from any source other than the lack of good faith efforts by balance remaining in the Buyer Indemnified Persons to seek recovery thereunder and comply with Escrow or amounts unpaid under the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementNote.
(bg) No Damages shall be recoverable by any Buyer Indemnitee pursuant to the provisions of this Article 11, and no claim therefor shall be asserted for any purpose whatsoever hereunder, which arise out of facts, circumstances or conditions which are disclosed in this Agreement or any Schedule hereto or of which any Buyer Indemnitee had knowledge on or before the Closing Date. The knowledge of any current employee of the Seller shall not be imputed to any other Buyer Indemnitee.
(h) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to contained in this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) Indemnitees shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of Section 11.1 for any Damages to the extent that the Buyer receives at or after the Closing an adjustment to the Purchase Price with respect to the matters giving rise to such Damages were taken into account in the calculation by reason of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or Article 4 hereof.
(iii) for any Damages relating to any matter Except to the extent that there Seller is included in the Interim Financial Statements liable to Buyer for a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty the representations contained in Section 5.14, Buyer releases Seller and (ii) the amount of its Affiliates from any Damages resulting therefromclaims, all qualifications or exception in including contribution claims arising under any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or Environmental Law as well as any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties common law regarding the amount or availability protection of any net operating losshealth, capital loss, tax credit carryover or other Tax asset or liability of safety and the Acquired Companies in any taxable period (or portion thereof) beginning after the Closingenvironment.
Appears in 1 contract
Certain Limitations. (ai) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which Notwithstanding the Seller shall foregoing,
(1) no claim may be liable made by the Buyer Indemnitees pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”6.2(a)(i), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages all Losses in respect of indemnification under Section 6.2(a)(i) exceeds $250,000 100,000 (the “Indemnification DeductibleBasket Amount”), and thereafter, the Seller Indemnifying Parties shall be required to pay or be liable for all Losses in excess of the Basket Amount, until the aggregate amount of such Losses is $200,000 (the “Deductible Amount”).
(2) From and after the time that the aggregate amount of all Losses in respect of indemnification under Section 6.2(a)(i) exceeds the Deductible Amount, Buyer, on the one hand, and the Seller Indemnifying Parties, on the other hand, shall bear an equal portion of the Losses until the aggregate total amount for all Losses is equal to the Retention Amount; and provided further that in the case Seller Indemnifying Parties shall be solely responsible for all Losses arising from or related to Fraud committed by a Seller Indemnifying Party.
(ii) The indemnification obligation of the Seller Indemnifying Parties pursuant to Section 6.2(a)(i), other than a claim for indemnification arising from any breach or inaccuracy of any inaccuracy in or breach of IP Representations, any Company Fundamental Representation, the Seller or Fraud, shall be directly liable limited to sums held in the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementIndemnity Escrow Account.
(biii) Other than for Fraud, the aggregate amount of Losses recoverable from the Seller Indemnifying Parties for IP Claims shall be limited to $20,000,000 (the “IP Cap”).
(iv) Other than for Fraud, the aggregate amount of Losses recoverable from the Seller Indemnifying Parties for an Agreed Indemnity Event shall be limited to $2,000,000 (the “Agreed Indemnity Event Cap”).
(v) Notwithstanding anything to in the contrary hereinforegoing, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability amount of Losses recoverable from the Seller Indemnifying Parties for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller any claim for indemnification pursuant to this Agreement, including Fundamental Claims and (ii) Fraud, shall be limited to the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by (the Buyer pursuant to this Agreement“Purchase Price Cap”).
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (BigCommerce Holdings, Inc.)
Certain Limitations. Notwithstanding anything to the contrary contained herein, the indemnification provided for in Section 8.2 and Section 8.3 shall be subject to the following limitations:
(a) Except The Sellers shall not be liable to the Buyer Indemnitees for claims arising from Intentional Fraudindemnification under Section 8.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.2(a) exceeds $337,500 (the “Deductible”), criminal activity in which event the Seller Indemnitors shall only be required to pay or willful breaches be liable for Losses in excess of covenants, any Damages the Deductible. The aggregate amount of all Losses for which the Seller Indemnitors shall be liable pursuant to Section 7.2(a)(i8.2(a) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 337,500 (the “Cap”).
(b) Notwithstanding the foregoing, and (iithe limitations set forth in Section 8.4(a) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Company Fundamental RepresentationRepresentation or any Seller Fraud. The aggregate amount of all Losses for which the Seller Indemnitors shall be liable pursuant to this Article VIII (excluding any claims based on any Seller Fraud) shall not exceed the Purchase Price.
(c) None of the parties will have any liability to another party under this Article VIII for any Loss to the extent (i) that the aggrieved party has actually recovered such Loss under any insurance policy (including, in the case of any recovery by any Buyer Indemnitees, the Rep & Warranty Policy) (solely to the extent of such “double recovery”), but net of costs collection and, in the case of recoveries from insurers, net of the deductible and any premiums increased for such policies as a result of such claim. In addition, in the event that any Losses are reasonably likely to be recovered by Buyer under the Rep & Warranty Policy in connection with any breach of any representations and warranties of Seller in Article III of this Agreement in an amount that exceeds the Rep & Warranty Policy Retention Amount, then Buyer shall not be entitled to bring any indemnification claim hereunder with respect to such claim for Loss in excess of the Rep & Warranty Policy Retention Amount until such time that Buyer has submitted a claim for such breach in accordance with the terms of the Rep & Warranty Policy. In addition, none of the parties will have any liability to another party under this Article VIII for any Loss to the extent that such amount was expressly included in the Final Working Capital or otherwise expressly included in the calculation of the Adjusted Closing Payment, as finally determined pursuant to Section 2.2 if the effect thereof was to reduce dollar-for-dollar the amount of the Final Working Capital and/or the Adjusted Closing Payment, as applicable, as compared to what it would have been absent such adjustment (with the intent of the provision to merely avoid “double counting”); provided, however, that for the avoidance of doubt, the foregoing shall not limit any claim for Losses arising out of or resulting from the claim giving rise to such Losses by a dollar-for-dollar reduction in the Final Working Capital and/or the Adjusted Closing Payment, as applicable, in accordance with the terms of this Article VIII.
(d) The amount of any liability of the Sellers under Section 5.11 or this Article VIII with respect to any Loss of the Foreign Companies (the “Foreign Company Losses”) shall be directly liable reduced by the amount of any actual net reduction in cash payments for income Taxes realized by the parent entity of Buyer or its controlled Affiliates (the “Buyer Group”) as a result of the Foreign Company Losses giving rise to such indemnification payment. If the indemnification payment is paid prior to the Buyer Indemnified Persons Group realizing any actual reduction in cash payments for income Taxes in connection with the Foreign Company Losses giving rise to such payment, and the Buyer Group subsequently realizes such actual reduction in cash payments for income Taxes within or with respect to the taxable year in which the Foreign Company Losses arise, then the Buyer shall pay the amount of such actual reduction in cash payments for Taxes to the Sellers in cash within ten (10) days of the Buyer Group’s realization of such actual reduction in cash payments for income Taxes (but not in excess of the indemnification payment received from the Sellers with respect to such Foreign Company Losses). For purposes of the preceding two sentences, (i) the Buyer Group shall be deemed to have realized an actual reduction in cash payments for income Taxes with respect to a taxable year if, and to the extent that, the Buyer Group’s cumulative liability for income Taxes from the Closing Date through the end of such Damages are not covered taxable year, calculated by excluding any Tax items attributable to the Indemnification Insurance Policy Foreign Company Losses and the receipt of any related indemnification payment for all taxable years, exceeds the Buyer Group’s actual cumulative liability for Taxes through the end of such taxable year, calculated by taking into account any Tax items attributable to the Foreign Company Losses and the receipt of any related indemnification payment for all taxable years (to the extent permitted by relevant Tax law and treating such Tax items as the last items claimed for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being deniedtaxable year), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(be) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to in this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) Seller Indemnitors shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) liable for any Damages Losses relating to any matter to the extent that there is included Taxes, Tax positions or Tax attributes in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period periods (or portion portions thereof) beginning after the ClosingClosing Date.
Appears in 1 contract
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) Notwithstanding anything to the contrary contained in this Agreement, (x) for all Environmental Standalone Claims made or existing after the tenth anniversary of the Closing Date, Seller shall not be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) claims unless and until the aggregate amount of all indemnifiable Losses relating to such Damages claims and incurred after the tenth anniversary of the Closing Date equals or exceeds One Million Dollars ($250,000 1,000,000), in which case Seller shall be liable only for the amount of the Losses in excess of such amount; (y) from and after the “Indemnification Deductible”Closing, the maximum aggregated amount of indemnifiable Losses which may be recovered under Section 8.2(b) shall be Thirty Million Dollars ($30,000,000); and provided further (z) Seller shall not be liable for any Environmental Standalone Claim unless such claim is made hereunder prior to the date that in is 20 years from the Closing Date.
(ii) With respect to any and all Environmental Indemnity Claims, Purchaser and Seller, as the case may be, shall act only in a “Commercially Reasonable Manner” which shall mean the most cost-effective and commercially reasonable method for investigation, remediation, removal, corrective action, containment, monitoring and/or other response action permitted by applicable Environmental Laws, determined from the perspective of any inaccuracy a reasonable business person acting (without regard to the availability of indemnification hereunder) to achieve compliance with Environmental Laws in effect as of the Closing (it being understood that Commercially Reasonable Manner shall include the use of risk-based remedies, institutional or breach engineering controls, or deed restrictions, based on the use of any Company Fundamental Representation, the property at Closing).
(iii) Seller shall be directly liable to the Buyer Indemnified Persons have no obligations for any Environmental Indemnity Claim to the extent such Damages Losses thereunder result from or are not covered by the Indemnification Insurance Policy for consequence of any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof action (including disclosure, report or other communication from the deductible provided for thereinPurchaser and its Affiliates (or their agents) to any Governmental Authority or other third party or any Phase II or other intrusive investigations or sampling, testing or monitoring of the coverage limit being exceeded soil, surface water or coverage being deniedgroundwater performed by Purchaser or its Affiliates (or their agents)) that is not (A) required by an Environmental Law; or (B) necessary to address a condition first discovered as a result of construction activities at, up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementon or beneath a Leased Real Property or Real Property.
(biv) Notwithstanding anything Seller shall have no obligation for any Environmental Indemnity Claim to the contrary hereinextent Losses result, except for Damages resulting in whole or in part, from Intentional Fraudany change in use of any Leased Real Property, criminal activity any Real Property, the property subject to the Sublease Agreement or willful breaches of covenants, (i) the aggregate liability of Property subject to the Seller for all Damages under Section 7.2(a) shall not exceed Cork Sublease from its current use to any nonindustrial use after the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementClosing Date.
(cv) The parties hereto expressly waive From and after the Closing Date, with respect to the Business, any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages Leased Real Property or any damages based on any type Real Property, Purchaser shall, and will cause each of multipleits Affiliates and Subsidiaires to, except, comply with all applicable Environmental Laws in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsall material respects.
(dvi) An Indemnified Person entitled The Purchaser Indemnitees shall be permitted to indemnification assign a portion of their rights to bring an Environmental Indemnity Claim; provided that no more than two such assignments may be made by an Indemnifying Person pursuant all the Purchaser Indemnitees, taken as a whole, and; provided, further, any such assignment, if made, shall be effective if, and only if, the assignee agrees in writing to this Article VII with respect be bound to any claim or group all of related claims shall only be entitled the limitations applicable to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties Environmental Indemnity Claims set forth in this AgreementArticle VIII.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Tyco Electronics Ltd.)
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller Nothing in this Agreement shall be liable pursuant deemed ------------------- to Section 7.2(a)(i) require any Transferring Entity to indemnify any TowerCo Indemnitee for or in respect of any of the Real Estate Representations. Without limiting the generality of the foregoing, the sole remedies of TowerCo or CCIC in respect of a breach of any Real Estate Representation by any Transferring Entity shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that cause (i) such Transferring Entity to continue to use reasonable efforts to cure such breach, as contemplated by Section 4.6, until the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”)Final Closing Date, and or (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(iSite as to which such Real Estate Representation is breached to be a Maintained Site (or, at the applicable Transferring Entity's election, an Excluded Site) unless and until or to defer the aggregate amount Closing of such Damages exceeds $250,000 (Site to a later Closing Date, provided that the “Indemnification Deductible”); and provided further that in the case failure of any inaccuracy in such deferred Site to become an Included Site or breach of any Company Fundamental Representation, the Seller shall be directly liable Maintained Site on or prior to the Buyer Indemnified Persons to the extent such Damages are Final Closing shall not covered by the Indemnification Insurance Policy for constitute a default under this Agreement or give CCIC or TowerCo any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementremedy.
(b) Notwithstanding anything to the contrary contained herein, except for Damages resulting from Intentional Fraudno Transferring Entity shall have any obligation under this Section 12 to TowerCo Indemnitees with respect to the breach of representations, criminal activity warranties, covenants or willful breaches of covenantsagreements by BMI, (i) unless, until and only to the extent that the aggregate liability of all TowerCo Indemnified Losses from all such breaches exceeds on a cumulative basis $10,000,000 (the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement"Deductible Amount"), and (ii) then only to the aggregate liability extent of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementsuch excess amount.
(c) The parties hereto expressly waive any claim Anything in this Agreement to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptthe contrary notwithstanding, in each case, (i) in the no event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to shall any Transferring Entity be liable under this Agreement for any indemnification by an Indemnifying Person obligation pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth Section 12 in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation excess of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to aggregate amount of the extent that there is included in the Interim Financial Statements a specific liability or reserve relating Cash Consideration having been paid to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability Transferring Entity as of the Acquired Companies in any taxable period date on which the claim for indemnification arose (or portion thereof) beginning after the Closing"Maximum Indemnification").
Appears in 1 contract
Sources: Sublease Agreement (Crown Castle International Corp)
Certain Limitations. (a) Except for claims with respect to Losses arising from Intentional Fraud, criminal activity as a result of fraud or willful breaches of covenants, any Damages concealment (for which the Seller limitations set forth in this Section 7.4 shall be liable pursuant to not apply), the indemnification provided for in Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy 7.2 and Buyer will have no recourse against the Seller liability with respect to any such Damages, whether or Buyer Warranty Claim shall be subject to the following limitations:
(a) The Seller Parties shall not the entirety be liable in respect of any such Damages Buyer Warranty Claim (other than a breach of the Fundamental Warranties) to the extent that the matter giving rise to the Buyer Warranty Claim is covered by Disclosed in the Indemnification Insurance Policy Data Room or whether or the Disclosure Schedules.
(b) The Seller Parties shall not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Parties for indemnification under Section 7.2(a)(i) unless and in respect of any Buyer Warranty Claim until the aggregate amount of such Damages all Losses in respect of indemnification in respect of any Buyer Warranty Claim (together with any connected Buyer Warranty Claim) exceeds $250,000 £40,000 (the “Indemnification Deductible”), in which event the Seller Parties shall be liable for the whole amount of the Losses and not just the amount in excess of the Deductible; provided, however, that the Deductible shall not apply to claims for breaches of the Fundamental Warranties or, for the avoidance of doubt, claims under Section 7.2(a) and provided further that Section 7.2(b). For the purposes of this Section 7.4(b), a Buyer Warranty Claim is connected with another Buyer Warranty Claim if it arises from the same facts, events or circumstances.
(c) The aggregate amount of all Losses for which the Seller Parties shall be liable in the case respect of any inaccuracy Buyer Warranty Claim shall not exceed 70% of the Purchase Price actually paid (the “General Cap”); provided, however, that the General Cap shall not apply to claims for breaches of the Fundamental Warranties or, for the avoidance of doubt, claims under Section 7.2(a) and Section 7.2(b).
(d) The aggregate amount of all Losses for which the Seller Parties shall be liable in or breach respect of any Company Buyer Warranty Claim including with respect to any claims for breaches of the Fundamental RepresentationWarranties, or claims under Section 7.2(a) (but for the avoidance of doubt excluding any claims pursuant to Section 7.2(b)) shall not exceed the Purchase Price.
(e) Payments by the Seller Parties in respect of any Buyer Warranty Claim shall be directly liable limited to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for amount of any reason liability or damage that remains after deducting therefrom any insurance proceeds or other than the lack of good faith efforts payments actually received by the Buyer Indemnified Persons Parties from a third party (net of any deductible amounts) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to seek recover under insurance policies or indemnity, contribution or other similar agreements for any Losses but seeking recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal from any insurance policies shall not be a pre-condition to the Purchase Price actually received by Buyer seeking recovery from the Seller pursuant to Parties under this Agreement.
(bf) Each party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Losses upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including using commercially reasonable endeavors to incur costs only to the minimum extent necessary to remedy the breach that gives rise to such Losses. The Buyer shall not be entitled to recover any Loss more than once under this Agreement or any Transaction Document.
(g) Notwithstanding anything to the contrary hereincontained in this Agreement, except to the maximum extent permitted by applicable Law, in no event shall either party hereto be liable in connection with this Agreement, the negotiation of this Agreement or the transactions contemplated hereby for Damages special, indirect, incidental, exemplary or punitive damages whether or not caused by or resulting from Intentional Fraud, criminal activity the actions of such party or willful breaches the breach of its covenants, agreements, representations or warranties hereunder and whether or not based on or in warranty, contract, tort (including negligence or strict liability) or otherwise.
(h) The Seller Parties shall not be liable in respect of any Buyer Warranty Claim to the extent that the matter giving rise to the Buyer Warranty Claim results from or is increased by (and if increased, only to the extent that it is increased by):
(i) any act or omission before Closing carried out at the aggregate written request of the Buyer or any member of the Buyer’s Representatives; or
(ii) any act, event, occurrence or omission of the Buyer after the Closing Date.
(i) The Seller Parties shall not be liable in respect of any Buyer Warranty Claim to the extent that the matter giving rise to the Buyer Warranty Claim constitutes a contingent liability or relates to a liability which is not capable of being quantified until such liability becomes an actual liability of the Seller for all Damages under Section 7.2(a) Party or becomes capable of being quantified. This paragraph shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by relieve the Buyer pursuant from any obligation to this Agreementgive notice in respect of any matter which constitutes a contingent liability on the Buyer or relates to a liability which is not capable of being quantified.
(cj) The parties hereto expressly waive Seller Parties shall not be liable for any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value Buyer Warranty Claim if and to the extent that the Buyer had actual knowledge at the Closing of such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representationSeller Warranty and that such breach would enable it to bring a Buyer Warranty Claim. For this purpose, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims Buyer shall only be entitled deemed to recover once for such claim or group have the knowledge of related claims notwithstanding that such claim or group anything of related claims may constitute a breach which ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ have actual knowledge as at the date of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Wd 40 Co)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except Sellers shall not be liable to the Buyer Indemnitees for claims arising from Intentional Fraudindemnification under Section 8.02(a) until the aggregate amount of all Losses sustained by Buyer Indemnitees by reason of inaccuracies in, criminal activity or willful breaches of, the representations or warranties made by Sellers in this Agreement, or in any certificate or instrument delivered by or on behalf of covenantsSellers pursuant to this Agreement, any Damages exceeds $491,250.00 (the “Basket”), in which event Sellers shall be required to indemnify Buyer Indemnitees for all such Losses in excess of the Basket. The aggregate amount of all Losses for which the Seller Sellers (cumulatively) shall be liable pursuant to Section 7.2(a)(i8.02(a) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 491,250.00 (the “Cap”), and .
(iib) Buyer shall not be liable to the Seller shall have no liability Sellers Indemnitees for indemnification under Section 7.2(a)(i8.03(a) unless and 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 Damages exceeds $250,000 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 “Indemnification Deductible”); foregoing, the limitations set forth in Section 8.04(a) and provided further that in the case of Section 8.04(b) shall not (i) apply to Losses resulting from any inaccuracy in or breach of any Company Fundamental Representation; (ii) affect or otherwise limit any claim Buyer may have under the R&W Insurance Policy, the Seller shall be directly liable or (iii) apply to the Buyer Indemnified Persons to payment of the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller Working Capital Adjustment pursuant to this AgreementSection 2.04.
(bd) 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, except for the references in Sections 3.08(a), 3.09(a)(xiii), and 3.11.
(e) Notwithstanding anything to the contrary hereinin this ARTICLE VIII, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value 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 extent that person(s) who perpetrated such diminution of value is Fraud without regard to any limitation set forth in this Agreement (whether a temporal limitation, the probable Basket, Cap, or otherwise) and reasonably foreseeable result such Losses shall not count toward satisfaction of the applicable breach of a representation, warranty, covenant Basket or agreement hereunder, Cap;
(iif) to the extent actually recovered by a third party No Seller shall be liable under this Agreement (including a Governmental Bodythis ARTICLE VIII) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were Losses which are taken into account in the calculation 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 Losses under applicable insurance policies or 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 operation of the Final 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, Company Indebtedness 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 Company Transaction Expenseswarranty 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) for any Damages relating $1,500,000, the Losses in Excess of Collar ($500,000) would be subject to any matter to the extent that there is included indemnification hereunder. Furthermore, if a Closing Working Capital Surplus exists of $2,500,000 (resulting in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes Working Capital Adjustment of determining (i) whether there has been any misrepresentation or breach $500,000), and Losses resulting from breaches of a representation or warranty and 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 amount Losses in Excess of any Damages resulting therefrom, all qualifications or exception in 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 referring to indemnification obligations hereunder for Losses relating to, resulting from, or arising out of matters disclosed in the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedPhase I and/or Phase II).
(gl) Seller makes no representations No Indemnifying Party shall be liable under this ARTICLE VIII for Losses arising from the Company’s or warranties regarding Sellers’ failure to obtain consent from, or failure to notify, the amount State of Kansas (and its related agencies) or availability of any net operating lossInTrust Bank, capital loss, tax credit carryover or other Tax asset or liability of with respect to the Acquired Companies in any taxable period (or portion thereof) beginning after Closing and/or the Closingtransactions contemplated hereby.
Appears in 1 contract
Certain Limitations. Notwithstanding anything to the contrary in this Agreement and without limitation upon the limitations elsewhere in this Agreement: (1) Seller shall have no liability (and Buyer shall make no claim against Seller) for a breach of any representation or warranty or any other obligation of Seller under this Agreement or any document executed by Seller in connection with this Agreement unless (a) Except the valid claims for claims arising from Intentional Fraudall such breaches collectively aggregate to more than Seventy-five Thousand ($75,000), criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (ib) the liability of Seller shall be directly liable under this Agreement and such documents does not exceed, in the aggregate, the amount equal to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(iOne Million Nine Hundred Thousand Dollars ($1,900,000) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”) (it being understood that, notwithstanding anything to the contrary in this Agreement or any other document, Seller’s liability under this Agreement and the documents executed by Seller in connection herewith shall in no event exceed, in the aggregate, the amount of the Cap); and (2) in no event shall Seller be liable for any consequential or punitive damages; provided, however, the Cap and Survival Period shall not apply to the post-closing reproration obligations of Buyer under Section 6D(2), Seller’s obligations with respect to real estate taxes under Section 6(D)(1(a) hereof, and fees and costs of enforcement of the Agreement. Seller shall maintain (i) during the Survival Period, a liquid net worth equal to at least the amount of the Cap and (ii) after the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until Survival Period, a liquid net worth equal to at least the lesser of the amount of the Cap or the aggregate amount of such Damages exceeds $250,000 (claimed by Buyer in Breach Notices delivered to Seller during the “Indemnification Deductible”)Survival Period; and provided further provided, however, that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for have any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller further obligations pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and clause (ii) the aggregate liability of if Buyer for all Damages under Section 7.2(b) shall has not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII commenced litigation with respect to any claim such claims within thirty (30) days after the expiration of the Survival Period or group from and after such time as all such claims have been settled or finally determined by a court of related claims shall only be entitled to recover once for such claim or group competent jurisdiction. The obligations of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification Seller under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase Section shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the survive Closing.. E.
Appears in 1 contract
Sources: Purchase Agreement
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that Following Closing:
(i) the Seller Sellers shall not be liable to Buyer Indemnified Persons under Section 10.2(a)(i) for any breach of or inaccuracy in any of the representations or warranties set forth in Article III (other than Fundamental Representations) unless the aggregate Losses incurred by the Buyer Indemnified Persons exceed (the “Basket”), and then the Sellers shall be directly jointly and severally liable to the Buyer Indemnified Persons for the full amount of all Losses from the first dollar, including Losses needed to meet the Basket; provided, however, no claims for which the aggregate amount of Losses of the Buyer Indemnified Persons arising from such Damages claims is less than (the “Mini Basket”) shall be included in determining whether the Basket has been met; provided further, however, that once the Basket is met, all Losses (including Losses that are less than the Mini Basket) shall be recoverable by the Buyer Indemnified Persons;
(ii) Buyer shall not be liable to the Seller Indemnified Persons under Section 10.2(c)(i) for any breach of or inaccuracy in any of Buyer’s representations or warranties (other than Fundamental Representations) unless the aggregate Losses incurred by the Seller Indemnified Persons exceed the Basket, and then Buyer shall be liable for the full amount of all Losses from the first dollar, including Losses needed to meet the Basket; provided, however, no claims for which the aggregate amount of Losses of the Seller Indemnified Persons arising from such claims is less than the Mini Basket shall be included in determining whether the Basket has been met; provided further, however, that once the Basket is met, all Losses (including Losses that are less than the Mini Basket) shall be recoverable by the Seller Indemnified Persons;
(iii) the aggregate amount required to be paid by the Sellers pursuant to Section 7.2(a)(i10.2(a)(i) in excess (other than with respect to breaches of Fundamental Representations), Section 10.2(a)(iv) and Section 10.2(b)(i) (other than with respect to breaches of the Indemnification Deductible up to an amount Fundamental Representations) shall not to exceed $250,000 (the “Cap”), and ;
(iiiv) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 required to be paid by Buyer pursuant to Section 10.2(c)(i) (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons with respect to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(aFundamental Representations) shall not exceed the aggregate Purchase Price Cap;
(v) in no event will any Seller be liable under this Article X for any Losses in excess of the cash proceeds or value of the Issued Units actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.Seller;
Appears in 1 contract
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which The SP Parties shall not be obligated to indemnify and hold harmless the Seller shall be liable pursuant to Retrocessionaire Indemnified Persons under Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damagesclaim, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages all Indemnifiable Losses of the Retrocessionaire Indemnified Persons under Section 7.2(a)(i) exceeds $250,000 USD [*****] (the “Indemnification Deductible”); and provided further that in , at which point the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller SP Parties shall be directly liable to the Buyer Retrocessionaire Indemnified Persons for the value of claims under Section 7.2(a)(i) that are in excess of the Deductible, subject to the extent such Damages are not covered by limitations set forth in this Article VII; provided that the Indemnification Insurance Policy maximum aggregate liability of the SP Parties to all the Retrocessionaire Indemnified Persons for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementall Indemnifiable Losses under Section 7.2(a)(i) shall not exceed USD [*****].
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the The maximum aggregate liability of the Seller SP Parties to all the Retrocessionaire Indemnified Persons for any or all Damages Indemnifiable Losses due to any breach of the covenants in Article V only under Section 7.2(a7.2(a)(iii) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the USD [*****]. The maximum aggregate liability of Buyer the Retrocessionaire to all the SP Indemnified Persons for any or all Damages Indemnifiable Losses due to any breach of the covenants in Article V only under Section 7.2(b7.2(b)(iii) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementUSD [*****].
(c) The parties hereto expressly waive Each Indemnitee shall use commercially reasonable efforts to mitigate or prevent such Indemnifiable Losses.
(d) No Retrocessionaire Indemnified Person shall be entitled to indemnification with respect to any particular Indemnifiable Loss to the extent the related damages, losses, liabilities, obligations, costs, or expenses can be shown to have been provided for or reserved against in the calculation of the Net Premium.
(e) In the event a claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type Action for indemnification under this Article VII has been finally determined, the amount of multiple, except, in each case, such final determination shall be paid (i) in if the event of diminution of value Indemnitee is a Retrocessionaire Indemnified Person, by the SP Parties to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunderRetrocessionaire Indemnified Person and, (ii) if the Indemnitee is a SP Indemnified Person, by the Retrocessionaire to a SP Indemnified Person, in each case on demand by wire transfer of immediately available funds to an account designated by the SP Parties or the Retrocessionaire, as applicable. A claim or an Action, and the liability for and amount of damages therefor, shall be deemed to be “finally determined” for purposes of this Article VII when the Parties have so determined by mutual agreement or, if disputed, when a final non-appealable Order has been entered into with respect to such claim or Action.
(f) Notwithstanding anything contained in this Agreement to the extent actually recovered by contrary, in the event that any fact, event, or circumstance that results in an adjustment under Section 2.4 would also constitute a third party breach of or inaccuracy in any of the SP Parties’ representations, warranties, covenants, or agreements under this Agreement, the SP Parties shall have no obligation to 1008797259v13 indemnify any Retrocessionaire Indemnified Person with respect to such breach or inaccuracy provided the relevant adjustment has been made.
(including g) The Parties acknowledge and agree that, except (i) as provided in Section 2.4 and Section 9.7(g), (ii) equitable remedies that cannot be waived as a Governmental Body) from an Indemnified Personmatter of law, or (iii) in the event that a Party is finally determined by a court of Intentional Fraudcompetent jurisdiction to have committed a fraud regarding such Party’s representations, criminal activity warranties, covenants or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties other agreements set forth in this Agreement or in any certificate furnished in connection with the Closing, if the Closing occurs, their sole and exclusive remedy following the Closing at law or equity with respect to this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to , the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expensestransactions contemplated hereby, or (ii) for any Damages other matter relating to any matter Party or its Affiliates prior to the extent that there is included Closing, in each case regardless of the Interim Financial Statements a specific legal theory under which such liability or reserve relating obligation may be sought to such matter.
(f) For purposes of determining (i) be imposed, whether there has been any misrepresentation sounding in contract or breach of a representation in tort, whether at law or warranty and (ii) the amount of any Damages resulting therefromin equity, all qualifications or exception in any representation or warranty relating to or referring otherwise, shall be pursuant to the terms “material”, “materiality”, “Material Adverse Effect”, “provisions set forth in all material respects” or any similar qualification, term or phrase shall be disregardedthis Article VII.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Master Agreement (SiriusPoint LTD)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 will be subject to the following limitations:
(a) Except EWD and EWI will not be liable to the Buyer Indemnitees for claims arising from Intentional Fraudindemnification under Section 8.02(a) or under Section 8.02(a) of the Stock Purchase Agreement with respect to any representations or warranties of EWD hereunder or of EWI and the Company under the Stock Purchase Agreement, criminal activity other than the Special Representations (as defined herein and in the Stock Purchase Agreement, and excluding Section 3.15(c) and (d) which, for the avoidance of doubt, will be subject to the Basket), until the aggregate amount of such Losses exceeds $75,000 (the “Basket”), in which event EWD and EWI will only be required to pay or willful breaches be liable for all such Losses in excess of covenants, any Damages the Basket.
(b) The aggregate amount of all Losses for which the Seller shall EWD and EWI will be liable pursuant to Section 7.2(a)(i8.02(a) shall be satisfied solely by recovery by Buyer under and Section 8.02(a) of the Indemnification Insurance Policy and Buyer Stock Purchase Agreement will have no recourse against not exceed the Seller following: (i) with respect to any such Damagesrepresentations or warranties of EWD hereunder or of EWI and the Company under the Stock Purchase Agreement other than the Special Representations (as defined herein and in the Stock Purchase Agreement), whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 2,500,000 (the “Cap”), and (ii) with respect to the Seller Special Representations (as defined herein and in the Stock Purchase Agreement), $17,000,000 and (iii) with respect to Post-Closing Events hereunder and all “Post-Closing Events” pursuant to the Stock Purchase Agreement, $750,000. In no event shall have no liability EWD and EWI be liable to Buyer Indemnitees for any Losses or other claims relating to or arising out of this Agreement or the other Transaction Documents in excess of $17,000,000.
(c) Buyer will not be liable to EWD Indemnitees for indemnification under Section 7.2(a)(i8.03(a) unless and CLF&P will not be liable to “EWI Indemnitees” for indemnification under Section 8.03(a) of the Stock Purchase Agreement with respect to any representations or warranties of Buyer hereunder or of CLF&P under the Stock Purchase Agreement other than the Special Representations (as defined herein and in the Stock Purchase Agreement) until the aggregate amount of all such Damages Losses exceeds $250,000 (the “Indemnification Deductible”); and provided further that Basket, in the case of any inaccuracy which event Buyer will be required to pay or be liable for all such Losses in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability excess of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsBasket.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person The aggregate amount of all Losses for which Buyer will be liable pursuant to this Article VII Section 8.03(a) and for which CLF&P will be liable pursuant to Section 8.03(a) of the Stock Purchase Agreement (i) other than the Special Representations (as defined herein and in the Stock Purchase Agreement) will not exceed the Cap and (ii) with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth the Special Representations (as defined herein and in this the Stock Purchase Agreement), will not exceed $17,000,000.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect The determination of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding Losses for purposes of this Article VIII will take into account the amount or availability of insurance proceeds payable with respect thereto pursuant to any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closinginsurance policy.
Appears in 1 contract
Certain Limitations. The liability of the Vendor or Buyers, as applicable, for claims under this Agreement shall be limited by the following:
(a) Except for claims arising from Intentional FraudAt any time after the Survival Date, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller Vendor shall be directly liable to the Buyer Indemnified Persons have no further obligations under this Article XIII for such Damages pursuant to Section 7.2(a)(i) in excess breaches of representations and warranties of the Indemnification Deductible up Vendor, except for Damages with respect to an amount not which the Buyers Indemnitee has given the Vendor written notice prior to exceed $250,000 (the “Cap”), such date in accordance with Section 13.3 above; and (ii) the Seller Buyers shall have no liability further obligations under this Article XIII for indemnification under breaches of representations and warranties of Buyers, except for Damages with respect to which the Vendor Indemnitee has given Buyers written notice prior to such date in accordance with Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement13.3.
(b) Notwithstanding anything to the contrary herein, except Buyers Indemnitees shall not be entitled to recover Damages from Vendor pursuant to Section 13.1 unless and until the accumulated aggregate amount of Damages shall exceed an amount which is the equivalent of E115,000 (the "VENDOR INDEMNIFICATION THRESHOLD"); provided, however, that at such time as the aggregate amount of Damages in respect of the indemnity obligations of Vendor shall exceed the Vendor Indemnification Threshold, Vendor shall thereafter indemnify any of the Buyers Indemnitees from all and against all Damage in excess of equivalent E10,000.
(c) Notwithstanding anything to the contrary herein, in the absence of fraud or willful breach of this Agreement (for which there shall be no limitation), in no event shall the maximum aggregate liability of Vendor in respect of any claims by the Buyers Indemnitees against Vendor pursuant to Section Section 13.1 for Damages resulting suffered or incurred by any Buyers Indemnitee exceed the maximum amount of E75,000,000.
(d) Notwithstanding anything to the contrary contained herein, any claim for indemnity made by any Buyer Indemnitee relating to Taxes is subject to the condition that: (i) Buyers and/or the Acquired Companies shall authorize and permit the tax advisers of Vendor at Vendor's sole cost and expense to conduct, direct and process all dealings with the Tax Authorities in respect of all matters and/or all fiscal years and/or all assessments pertaining to the period prior to the Closing Date, in close co-operation with the accountants and tax advisers of the Buyers and the Acquired Companies, provided that neither the Vendor nor its tax advisers shall enter into any settlement or take any action before the courts, or otherwise compromise any tax matter that affects or may affect the tax liabilities of Buyers or any of the Acquired Companies, without the prior written consent of the Buyers, which consent shall not be unreasonably withheld or delayed; and (ii) with respect of claims which are not based upon a breach of Vendor's representations and warranties given under Section 5.16 above, the Tax Liability in respect of which the claim for indemnity is made (including penalties and late payment interest) does not result from Intentional Frauda change adopted by Buyers and/or the Acquired Companies in the accounting and/or tax policies of the Acquired Companies which has, criminal activity directly or willful breaches indirectly, retroactive effect to the period preceding the Closing Date.
(e) Notwithstanding anything to the contrary herein, the limitations contained in Section 13.5(b) shall not apply to claims for indemnification by Buyers Indemnitees against Vendor in respect of covenants, (i) the aggregate liability of the Seller for all Damages under indemnities specified in Section 7.2(a13.1(b) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, Section 13(k) inclusive above; and (ii) the aggregate liability of Buyer for all Damages under special indemnities specified in Section 7.2(b13.6 below;
(f) Notwithstanding anything to the contrary herein, Vendor Indemnitees shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for Damages from Buyers unless and until the accumulated aggregate amount of Damages shall exceed an amount which is the equivalent of E115,000 (the "BUYER INDEMNIFICATION THRESHOLD"); provided, however, that at such claim or group time as the aggregate amount of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) Damages in respect of the indemnity obligations of Buyers shall exceed the Buyers Indemnification Threshold, Buyers shall thereafter indemnify any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included Vendor Indemnitees from all and against all Damage in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes excess of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedequivalent E10,000.
(g) Seller makes Notwithstanding anything to the contrary herein, the limitations contained in Section 13.5(f) shall not apply to claims for indemnification by Vendor Indemnitees against Buyers in respect of the indemnities specified in Section 13.2(b) and 13.2(c) above;
(h) Notwithstanding anything to the contrary herein, in no representations or warranties regarding event shall the amount or availability maximum aggregate liability of Buyers in respect of any net operating loss, capital loss, tax credit carryover claims by the Vendor Indemnitees against Buyers pursuant to Section 13.2 for Damages suffered or other Tax asset or liability of the Acquired Companies in incurred by any taxable period (or portion thereof) beginning after the Closing.Vendor Indemnitees exceed E75,000,000
Appears in 1 contract
Sources: Framework Transaction Agreement (Elbit Medical Imaging LTD)
Certain Limitations. (ai) Except In no event shall any Buyer Indemnitee be entitled to indemnification for any Losses arising from a claim for indemnification pursuant to Section 10.2a)(i) (A) for any claim or series of related claims arising from Intentional Fraud, criminal activity or willful breaches the same set of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller facts with respect to any such Damages, whether or which the aggregate amount of Losses does not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), 100,000 and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(iB) unless and until the aggregate amount of such Damages all Losses under all claims under Section 10.2a)(i) exceeds one million dollars ($250,000 1,000,000) (the “Indemnification Deductible”); and provided further that , at which ▇▇▇▇ ▇▇▇▇▇▇ shall only be liable for any Losses in excess of the Deductible.
(ii) In no event shall the aggregate Liability for indemnification by Seller pursuant to Section 10.2a)(i) exceed in the case of any inaccuracy aggregate sixteen million dollars ($16,000,000) and in or breach of any Company Fundamental Representation, no event shall the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered aggregate Liability for indemnification by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementAgreement exceed the Purchase Price.
(biii) Notwithstanding anything In no event shall any Seller Indemnitee be entitled to indemnification for any Losses arising from a claim for indemnification pursuant to Section 10.2(b)(i) (A) for any claim or series of related claims arising from the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches same set of covenants, (i) facts with respect to which the aggregate liability amount of Losses does not exceed $100,000 and (B) unless and until the aggregate amount of all Losses under all claims under Section 10.2(b)(i) exceeds the Deductible, at which time Buyer shall only be liable for any Losses in excess of the Seller for all Damages under Section 7.2(aDeductible.
(iv) In no event shall not exceed the aggregate Purchase Price actually received Liability for indemnification by the Seller Buyer pursuant to this Agreement, and (iiSection 10.2(b)(i) exceed in the aggregate liability of Buyer for all Damages under Section 7.2(bsixteen million dollars ($16,000,000) and in no event shall not exceed the aggregate Purchase Price actually paid Liability for indemnification by the Buyer pursuant to this AgreementAgreement exceed the Purchase Price.
(cv) The parties hereto expressly waive any claim Notwithstanding the foregoing, the limitations set forth in Section 10.2c)i) to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (iiv) in the event of diminution of value shall not apply to the extent that such diminution the Indemnified Party’s Losses result from or arise out of value is Fraud by the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsIndemnifying Party.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.02, Section 8.03 and Section 8.04 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which Seller and the Seller Stockholders shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i8.02(a) unless and until the aggregate amount of such Damages all Losses in respect thereof exceeds $250,000 20,000 (the “Indemnification DeductibleBasket”); , at which ▇▇▇▇ ▇▇▇▇▇▇ and provided further that Stockholders shall be required to pay or be liable for all indemnified Losses from the first dollar, regardless of the Basket. Notwithstanding the foregoing, the Basket shall not be applicable to any claims in respect of any Fundamental Representations of Seller and the case Stockholders, representations of Seller and Stockholders under Section 4.19 (Taxes) and Section 4.15 (Environmental Matters), claims for indemnification pursuant to Section 8.02(b), Section 8.02(c) or Fraud Claims.
(b) Buyer and Newpark shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses in respect thereof exceeds the Basket, at which time Buyer and Newpark shall be required to pay or be liable for all indemnified Losses from the first dollar, regardless of the Basket. Notwithstanding the foregoing, the Basket shall not be applicable to any claims in respect of any Fundamental Representations of Buyer and Newpark, claims for indemnification pursuant to Section 8.03(b) or Fraud Claims.
(c) No Stockholder shall be liable to Buyer Indemnitees for indemnification under Section 8.04(a) until the aggregate amount of all Losses in respect thereof exceeds the Basket, at which time the Stockholder shall be required to pay or be liable for all indemnified Losses from the first dollar, regardless of the Basket. Notwithstanding the foregoing, the Basket shall not be applicable to any claims in respect of any Fundamental Representations of the Stockholders, claims for indemnification pursuant to Section 8.04(b) or Fraud Claims.
(d) For purposes of this Article VIII, any inaccuracy in or breach of any Company Fundamental Representationrepresentation or warranty, and any damages resulting therefrom 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) With respect to Seller’s and the Stockholders’ indemnity obligations under Section 8.02(a), the aggregate liability of Seller and the Stockholders to indemnify Buyer Indemnitees from and against any such Losses under Section 8.02(a) shall not exceed the amount of $400,000 (the “Cap”); provided that the Cap shall not be directly liable applicable to the any claims in respect of any Fundamental Representations of Seller or Stockholders, representations of Seller and Stockholders under Section 4.19 (Taxes) and Section 4.15 (Environmental Matters), claims for indemnification pursuant to Section 8.02(b), Section 8.02(c) or Fraud Claims.
(f) The source of indemnification of Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy Indemnitees for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons Losses pursuant to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being deniedSection 8.02(a), up to an amount equal to Section 8.02(b) or Section 8.02(c) shall (after satisfying the Basket, as and if applicable) be paid (i) first from the Cash Escrow Fund and (ii) then jointly and severally from the Seller and Stockholders, provided, that in no event shall such recovery against a Stockholder exceed the portion of the Purchase Price actually received by the Seller pursuant to this Agreementsuch Stockholder.
(bg) Notwithstanding anything With respect to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages Buyer’s and Newpark’s indemnity obligations under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement8.03(a), and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) and Newpark to indemnify Seller Indemnitees from and against any Losses shall not exceed the aggregate Purchase Price actually paid by Cap; provided that the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the Cap shall not be applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages Fundamental Representations of Buyer and Newpark, claims for indemnification pursuant to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness Section 8.03(b) or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterFraud Claims.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The Party making a claim under this Section 10.3 is referred to as the “Indemnified Party”, and the Party against whom such claims are asserted under this Section 10.3 is referred to as the “Indemnifying Party.” The indemnification provided for in Section 10.1 and Section 10.2 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller Sellers shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Parties for indemnification under Section 7.2(a)(i10.1(a) unless with respect to breaches of representations and warranties until the aggregate amount of all Losses that would be payable pursuant to such Damages claim exceeds one million two hundred twenty-five thousand dollars ($250,000 1,225,000) (the “Indemnification Deductible”) (the “Deductible”), in which event Sellers shall be required to pay or be liable for Losses in excess thereof; provided, however, that the aggregate amount of all Losses for which Sellers shall be liable under Section 10.1(a) for breaches of representations and provided further that warranties shall not exceed an amount equal to one million two hundred twenty-five thousand dollars ($1,225,000) (the “Indemnity Cap”) and, absent Fraud, Buyer shall only have recourse to Sellers for any such breaches up to the Indemnity Cap. Notwithstanding anything to the contrary in the case of any inaccuracy in or breach of any Company Fundamental Representationthis Agreement, the Seller Deductible and Indemnity Cap shall be directly liable to not affect or otherwise limit any claim made or available under the Buyer Indemnified Persons to R&W Insurance Policy.
(b) For the extent such Damages are not covered by the Indemnification Insurance Policy for avoidance of doubt, any reason other than the lack of good faith efforts Losses suffered by the Buyer Indemnified Persons Parties from any and all Excluded Claims shall not be subject to seek recovery thereunder and comply with the terms and conditions thereof (including Deductible or the deductible provided for thereinIndemnity Cap; provided, notwithstanding anything to the contrary set forth in this Agreement, the coverage limit being exceeded or coverage being denied), up to an aggregate amount equal to that shall be payable by Sellers for Excluded Claims shall in no event exceed ten percent (10%) of the Purchase Price actually less any amounts paid from the Escrow Amount; and, provided further, that in no event shall any Voting Trust certificate holder be liable or responsible for indemnification claims under this Agreement in an amount in excess of the portion of the Purchase Price received by such Voting Trust certificate holder.
(c) Payments by an Indemnifying Party pursuant to Section 10.1 or Section 10.2 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds (if applicable) and any indemnity, contribution or other similar payment received by the Seller pursuant Indemnified Party in respect of any such claim (netted against costs or expenses incurred by the Indemnified Party in connection with such recovery), provided that this Section 10.3(c) shall not apply to this Agreementthe R&W Insurance Policy except to the extent that the amount of insurance proceeds received by the Buyer (netted against costs or expenses incurred by the Indemnified Party in connection with such recovery) are in excess of the retention amount. The Indemnified Party shall use its commercially reasonable efforts to recover under any such insurance policies, for any Losses; provided, however no Indemnified Party shall be required to commence or engage in litigation or initiate any other Action against any insurance carrier.
(bd) 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 mitigate the breach that gives rise to such Loss.
(e) The amount of any indemnity provided under this ARTICLE 10, other than indemnity with respect to claims which are not subjected to the Deductible or the Indemnity Cap, shall be reduced (but not below zero) by the amount of any actual net reduction in cash payments for Taxes realized by the Indemnified Parties as a result of the Losses giving rise to such indemnity claim.
(f) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to in this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) Sellers shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive have any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or liability for any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value otherwise indemnifiable Loss to the extent that the matter giving rise to such diminution of value is Loss had been reserved for in the probable and reasonably foreseeable result of Company Financial Statements or the applicable breach of a representation, warranty, covenant Closing Statement or agreement hereunder, (ii) the Buyer Indemnified Parties have been otherwise compensated through an adjustment to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person Estimated Purchase Price pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedSection 1.4.
(g) Seller makes no representations or warranties regarding For the purposes of determining the amount or availability of any net operating lossLosses suffered by any Buyer Indemnified Parties, capital lossthe representations, tax credit carryover warranties and covenants of Sellers and the Company set forth in this Agreement shall be considered without regard to any materiality or other Tax asset or liability Material Adverse Effect qualification therein.
(h) Notwithstanding anything to the contrary contained in this Agreement, none of the Acquired Companies parties hereto shall have any liability under any provision of this Agreement for any punitive or exemplary damages, any multiple, consequential, special or indirect damages, and any damages for loss of future profits, revenue or income, damages based on any multiple of revenue or income, loss from diminution in value, or loss of business reputation or opportunity or statutory damages relating to the breach, except to the extent such damages are actually awarded to a third Person.
(i) In addition to the other limitations contained in this Agreement, the Sellers obligation for Pre-Closing Taxes shall not include any taxable period Taxes (and related Losses) to the extent arising from or portion thereof) beginning after relating to the ClosingReorganization.
Appears in 1 contract
Sources: Stock Purchase Agreement (Tegna Inc)
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller The Parent Indemnitees shall not be liable pursuant entitled to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i6.1(a) unless and until the aggregate amount of such Damages all Losses in respect of indemnification under Section 6.1(a) exceeds $250,000 75,000 (the “Indemnification Deductible“ Basket”); and provided further that , in which event the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller Parent Indemnitees shall be directly liable entitled to recover only the Buyer Indemnified Persons to amount of all such Losses in excess of the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementBasket.
(b) Notwithstanding anything The Shareholder Indemnitees shall not be entitled to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (iindemnification under Section 6.2(a) until the aggregate liability amount of all Losses in respect of indemnification under Section 6.2(a) exceeds the Basket, in which event the Shareholder Indemnitees shall be entitled to recover only the amount of all such Losses in excess of the Seller for all Damages under Section 7.2(a) Basket. The Shareholder Indemnitees shall not exceed be indemnified pursuant to Section 6.2(a) with respect to any Loss if the aggregate Purchase Price actually amount of all Losses for which the Shareholder Indemnitees have received by the Seller indemnification pursuant to this Agreement, and (iiSection 6.2(a) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementhas exceeded $2,000,000.
(c) The parties hereto expressly waive limitations set forth in Sections 6.5(a) and 6.5(b) shall not limit the Liability of any claim to consequential, punitive Indemnifying Party for misrepresentations or indirect, lost profits, diminution in value, special, exemplary breaches of Transactional Reps or similar damages or any damages based on any type of multiple, except, in each casefraud. Notwithstanding the foregoing, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims Parent Indemnitees shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall not be entitled to indemnification under this Agreement with respect to any Loss if the aggregate amount of all Losses for which the Parent Indemnitees have received indemnification pursuant to this Agreement, including on account of fraud, has exceeded $14,800,000 and (ii) the Shareholder Indemnitees shall not be entitled to indemnification under this Agreement with respect to any Loss if the aggregate amount of all Losses for which the Shareholder Indemnitees have received indemnification pursuant to this Agreement, including on account of fraud, has exceeded $14,800,000.
(d) There shall be no right of contribution or other recourse against the Company or the Subsidiaries or their respective directors, officers, employees, Affiliates, agents, attorneys, representatives, assigns or successors for any claims asserted by Parent Indemnitees, it being acknowledged and agreed that the covenants and agreements of the Company are solely for the benefit of Parent Indemnitees.
(e) The amount of any Losses for which indemnification is provided under this Article VI shall be net of any amounts recovered by the Indemnified Party or any of such Indemnified Party’s Affiliates under or pursuant to any insurance policy, title insurance policy, indemnity, reimbursement arrangement or contract pursuant to which or under which such Indemnified Party or any of such Indemnified Party’s Affiliates is a party or has rights (collectively, “Alternative Arrangements”) with respect to such Losses. The Indemnified Party shall seek full recovery under all Alternative Arrangements covering any Losses to the same extent as it would if such Losses were not subject to indemnification hereunder. In the event that any proceeds or other recovery is received by an Indemnified Party under any Alternative Arrangement with respect to any Losses for which any such Person has already been indemnified hereunder then the Indemnified Party shall promptly reimburse to the Indemnifying Party (i) in respect of any Damages to Escrow Shares or cash (at the extent such Damages were taken into account in the calculation election of the Final Closing Working CapitalIndemnified Party) having an aggregate value equal to such recovery (the number of Escrow Shares to be reimbursed shall be calculated using the same Indemnity Value as was used for the satisfaction of such indemnification claim and the amount of cash to be reimbursed shall be equal to such Indemnity Value of such Escrow Shares that the Indemnified Party has the option to reimburse), Company Indebtedness or Company Transaction Expensesif such indemnification claim was initially satisfied in Escrow Shares, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating cash having an aggregate value equal to such matterrecovery if such indemnification claim was initially satisfied in cash.
(f) For purposes Notwithstanding anything to the contrary in this Agreement, Losses shall be limited to actual and direct Losses. No Party shall, in any event, be liable to any other Person for any consequential, incidental, indirect, special or punitive damages of determining (i) whether there has been such other Person, including any misrepresentation consequential, incidental, indirect, special or punitive damages relating to loss of revenue, income or profits, diminution of value or loss of business reputation or opportunity relating to the breach or alleged breach hereof and, in particular, no “multiple of a representation profits” or warranty and (ii) “multiple of cash flow” or similar valuation methodology shall be used in calculating the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedLosses.
(g) Seller makes In the event an Indemnified Party fails to take all commercially reasonable measures to mitigate any indemnifiable Losses, the Indemnifying Party shall have no representations or warranties regarding liability for any portion of such Losses that reasonably could have been avoided had the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the ClosingIndemnified Party made such efforts.
Appears in 1 contract
Certain Limitations. (a) Except for claims arising from Intentional FraudNotwithstanding anything in this Agreement to the contrary, criminal activity neither party shall indemnify or willful breaches of covenants, any Damages for which the Seller shall otherwise be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller other party with respect to any such Damagesclaim for any breach of a representation or warranty, whether or not for the entirety breach of any such Damages covenant contained in this Agreement, unless notice of the claim is covered by given within the Indemnification Insurance Policy or whether or relevant survival period specified in Section 10.1.
(b) Notwithstanding anything in this Agreement to the contrary, but except as otherwise provided in this subsection (b) and Schedule 10.5, Sellers shall not be liable to Buyer in respect of any indemnification hereunder except to the Indemnification Insurance Policy has expired, been terminated or lapsed; provided extent that (i) the Seller shall be directly liable aggregate amount of losses of Buyer, when aggregated with the amount of losses with respect to the Buyer Indemnified Persons for such Damages Kansas City Stations pursuant to Section 7.2(a)(ithe Kansas City Agreement, if any, exceeds One Million Dollars ($1,000,000) (the "Threshold Amount") (and then only to the extent such losses, when aggregated with the amount of losses with respect to the Kansas City Stations pursuant to the Kansas City Agreement, if any, exceed the excess of Five Hundred Thousand Dollars ($500,000)) over an amount (not in excess of $100,000) which Sellers are not required to expend in environmental remediation as a result of the Indemnification Deductible up to an amount not to exceed $250,000 Environmental Threshold Amount (such excess being the “Cap”"Excess Amount"), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of losses of Buyer, when aggregated with the amount of losses with respect to the Kansas City Stations pursuant to the Kansas City Agreement, if any, is less than the excess of Fifty Million Dollars) ($50,000,000) over any amounts expended by Buyer pursuant to Section 6.15 (as aggregated with the Kansas City Stations as set forth therein), or with respect to which Buyer receives a proration in its favor under Section 6.15 (such Damages exceeds $250,000 (excess being the “Indemnification Deductible”"Indemnity Cap"); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representationprovided, the Seller foregoing shall not be directly liable applicable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply amounts owed in connection with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by or the Seller pursuant proration adjustment thereof. In determining whether Sellers shall be obligated to indemnify Buyer under this Agreement.
Section 10, once the Threshold Amount has been satisfied, each representation and warranty and each covenant contained in this Agreement for which indemnity may be sought hereunder shall be read solely for purposes of determining whether a breach of such representation, warranty or covenant has occurred without regard to materiality (bincluding Material Adverse Effect) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementqualifications that may be contained therein.
(c) The parties hereto expressly waive Notwithstanding any claim other provision of this Agreement to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptthe contrary, in each case, (i) in the no event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of shall a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent for such Damages were taken into account in the calculation party's consequential or punitive damages, regardless of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) theory of recovery. Each party hereto agrees to use reasonable efforts to mitigate any losses which form the basis for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterclaim for indemnification hereunder.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except Sellers shall not be liable to the Buyer Indemnitees for claims arising from Intentional Fraudindemnification under Section 8.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a) exceeds ONE HUNDRED THOUSAND DOLLARS ($100,000) (the “Basket”), criminal activity in which event Sellers shall be required to pay or willful breaches be liable for all such Losses in excess of covenants, any Damages the Basket. The aggregate amount of all Losses for which the Seller Sellers shall be liable pursuant to Section 7.2(a)(i8.02(a) shall not exceed SEVEN HUNDRED EIGHTY-THREE THOUSAND THREE HUNDRED SIXTY DOLLARS ($783,360) (the “Cap”).
(b) Buyer shall not be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i8.03(a) unless and 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 Damages exceeds $250,000 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 “Indemnification Deductible”); foregoing, the limitations set forth in Section 8.04(a) and provided further that in the case 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 Company Sellers’ Fundamental Representation or any Buyer’s Fundamental Representation, the Seller aggregate liability for which, in either Sellers’ or Buyer’s case, as applicable, shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to capped at the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsPrice.
(d) An The amount of Losses that an Indemnified Person entitled to indemnification by an Indemnifying Person Party (as that term is described in Section 8.05) may recover pursuant to this Article VII with ARTICLE 8 shall be reduced, on a dollar for dollar basis, by any Tax benefits actually realized in respect to any claim or group of related claims shall only be entitled to recover once for the Losses forming the basis of such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementfor recovery.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been this ARTICLE 8, any misrepresentation inaccuracy in or breach of a any representation or warranty and (ii) the amount of any Damages resulting therefromLoss shall be determined without regard to any materiality, all qualifications Material Adverse Effect or exception other similar qualification contained in any or otherwise applicable to such representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedwarranty.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The rights of the Buyer Indemnitees and Seller Indemnitees to indemnification under this Article X shall be limited as follows:
(a) Except No Claim Notice for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall indemnification may be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller provided with respect to any Claim for breach of a representation or warranty in this Agreement beyond the survival period specified in Section 10.1;
(b) The recovery of Losses by any Buyer Indemnitee pursuant to Section 10.3(b), Section 10.3(c), Section 10.3(d) or Section 10.3(e), together with all Losses recovered by other Buyer Indemnitees under such Damagesprovisions, whether shall be limited to an aggregate of $5,000,000;
(c) The recovery of Losses by any Seller Indemnitee pursuant to Section 10.2, together with all Losses recovered by other Seller Indemnitees under such provision, shall be limited to an aggregate of $5,000,000;
(d) No Buyer Indemnitee or not the entirety of any such Damages is covered by the Indemnification Insurance Policy Seller Indemnitee shall be entitled to recover Losses pursuant to Section 10.3(b), Section 10.3(c), Section 10.3(d), Section 10.3(e) or whether or not the Indemnification Insurance Policy has expiredSection 10.2, been terminated or lapsed; provided that respectively, unless:
(i) with respect to each individual Claim, 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 $25,000, in which case the full amount of such Losses shall be directly liable recoverable, subject to the limitations imposed by the other provisions of this Section 10.4; provided, however, that this clause (i) shall not apply for purposes of determining whether the Deductible shall have been satisfied; and
(ii) the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) Indemnitees, collectively, or the Seller Indemnitees, collectively, shall have suffered or incurred aggregate Losses otherwise recoverable under this Article X in an amount in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”)Deductible, and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller then recovery shall be directly liable to the Buyer Indemnified Persons permitted only to the extent of such Damages are excess. Notwithstanding the foregoing, any claim for indemnification (and the Losses recoverable therefrom) that may be brought under Section 10.3(a) shall not covered by the Indemnification Insurance Policy for be subject to any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being deniedlimitation specified in this Section 10.4(d), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(be) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, in this Agreement:
(i) For purposes of determining whether a representation or warranty contained herein, other than those set forth in Sections 4.14, 4.19 and 5.3, has been breached for purposes of this Article X and determining the aggregate liability amount of Losses suffered thereby by any Buyer Indemnitee or Seller Indemnitee, as the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to case may be, each representation and warranty set forth in this AgreementAgreement (other than as aforesaid), and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII qualification with respect to any such representation or warranty set forth in the Disclosure Letter in the case of representations or warranties by the Members or Bear Cub, shall be read without regard or giving effect to any “material,” “materiality,” “Material Adverse Effect,” and “substantial” qualifications that may be contained in any such representation or warranty; provided, however, that the defined term “Material Contract” and all “material,” “materiality,” “Material Adverse Effect,” and “substantial” qualifications that are contained in any defined term shall be given effect;
(ii) No investigation or knowledge of any Party, whenever undertaken or however obtained, shall limit such Party’s right to indemnification hereunder in any manner; and
(iii) The provisions of this Article X shall apply in such a manner as not to give duplicative effect to any item of adjustment and if there has been an adjustment to the Aggregate Consideration for any Loss, there shall not be any charge against the Deductible and no Indemnitee may claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two any representation or more representations and/or warranties set forth warranty with respect to any Loss that gave rise to such adjustment in this Agreement.
(e) No Buyer Indemnified Person shall be entitled the Aggregate Consideration pursuant to indemnification under this Agreement (i) in respect of any Damages Section 2.3 to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter amount of such Loss given effect in such adjustment to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterAggregate Consideration.
(f) For purposes Subject to Section 10.4(h), if a Claim for indemnification is asserted with respect to a breach of determining a Title Representation:
(i) whether there has been any misrepresentation or each Indemnifying Member shall be severally liable for 50% of all Losses incurred by the Indemnified Party with respect to such breach and the Indemnified Party shall be entitled to recover from, and shall have personal recourse to and against, each Indemnifying Member for 50% of a representation or warranty and such Loss; and
(ii) Until the Survival Date, Bear Cub shall be jointly and severally liable with the Indemnifying Members for the full amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedsuch Loss.
(g) Seller makes no representations If a Claim for indemnification is asserted by any Buyer Indemnitee under Section 10.3, the Buyer Indemnitee may, except as set forth in Section 10.4(h), only assert such Claim against, and attempt to recover the Losses with respect to such Claim from, Bear Cub.
(h) If a Claim for indemnification is asserted by any Buyer Indemnitee under Section 10.3(a) with respect to a breach of a Title Representation, the Buyer Indemnitee must first only assert such Claim against, and attempt to recover the Losses with respect to such Claim from, Bear Cub. If Bear Cub does not satisfy the Losses associated with any such Claim within 30 days following the day that the Claim is first asserted against Bear Cub, the Buyer Indemnitees shall be entitled to assert and pursue any and all rights to indemnification from Bear Cub and, in accordance with Section 10.4(f), the Indemnifying Members;
(i) Notwithstanding any other provision of this Agreement, except as provided in Section 10.4(f) and Section 10.4(h) the Buyer Indemnitees shall not be entitled to recover Losses from or warranties regarding the amount or availability of have any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in recourse against any taxable period (or portion thereof) beginning after the ClosingMember relating to any claim arising from this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Regency Energy Partners LP)
Certain Limitations. The indemnification provided for in Section 11.1 and 11.2 shall be subject to the following limitations:
(a) Except as provided in Section 11.6(c), Seller shall not be liable to Purchaser Indemnitees for claims arising from Intentional Fraudindemnification under Section 11.1(a) until the aggregate amount of all Losses in respect of indemnification under Section 11.1(a) exceeds $250,000 (the “Deductible”), criminal activity or willful breaches of covenants, any Damages for which the Seller and thereafter shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons only for such Damages pursuant to Section 7.2(a)(i) Losses in excess of the Indemnification Deductible up Deductible, subject to an amount the other limitations set forth herein. Notwithstanding the foregoing, the aggregate liability of Seller for indemnification pursuant to Section 11.1(a) shall not to exceed $250,000 4,000,000 (the “Cap”). Notwithstanding anything to the contrary set forth herein, the limitations set forth in this Section 11.6(a) shall not apply to Losses relating to Excluded Assets or Excluded Liabilities or any other indemnity provided for herein other than pursuant to Section 11.1(a), and such Losses shall not be counted toward Seller’s Deductible.
(iib) the Buyer shall not be liable to Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i11.2(a) unless and until the aggregate amount of all Losses in respect of indemnification under Section 11.2(a) exceeds the Deductible, and thereafter shall be liable only for such Damages exceeds $250,000 (Losses in excess of the “Indemnification Deductible”); and provided further that in , subject to the case of any inaccuracy in or breach of any Company Fundamental Representationother limitations set forth herein. Notwithstanding the foregoing, the Seller shall be directly liable to aggregate liability of the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller indemnification pursuant to this AgreementSection 11.2(a) shall not exceed the Cap.
(bc) Notwithstanding anything to the contrary set forth herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (ithe limitations set forth in Sections 11.6(a) the aggregate liability of the Seller for all Damages under Section 7.2(aand 11.6(b) shall not exceed limit Liability of any Indemnifying Party for breaches of Transactional Reps, a breach of the aggregate Purchase Price representations or warranties set forth in Section 5.7(a), intentional breach, intentional misrepresentation or fraud, and all Losses based on, resulting from, arising out of or relating to such matters shall not be counted toward the Deductible.
(d) Payments by an Indemnifying Party pursuant to Section 11.1 or Section 11.2 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 Seller pursuant to this AgreementIndemnified Party in respect of any such claim, less any related costs and (ii) expenses, including the aggregate liability cost of Buyer 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 Article XI 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 all Damages under Section 7.2(b) shall not exceed such reduction in Losses for which the aggregate Purchase Price actually paid by Indemnified Party was indemnified prior to the Buyer pursuant to this Agreementrealization of reduction of such Losses).
(ce) The parties hereto expressly waive Notwithstanding anything to the contrary contained herein, in the case of a breach of a representation, warranty or covenant of Seller hereunder that results in Buyer’s complete loss of or inability to operate a Subject Restaurant or that results in the permanent inability to operate a drive-thru at such Subject Restaurant (to the extent such Subject Restaurant had an operating drive-thru at any claim to consequentialtime during fiscal year 2011), punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptthen, in each case, (i) without duplication, Buyer shall be permitted to seek indemnification in the event of diminution of value an amount equal to the extent EBITDA for such Subject Restaurant as set forth on Schedule 6.6(a) multiplied by the Valuation Multiple (provided, however, that if the EBITDA for such diminution Subject Restaurant as set forth on Schedule 6.6(a) is zero or negative, then no payment shall be due and owing) and, for the avoidance of value is the probable and reasonably foreseeable result of doubt, in each instance the applicable breach Seller Lease and Franchise Agreement shall be terminated with no further obligations thereunder. In addition, a pro-rata portion of a representation, warranty, covenant or agreement hereunder, (ii) any franchise fee paid by Buyer to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII Seller with respect to such Subject Restaurant shall be returned to Buyer as well as any claim or group unamortized costs incurred by Buyer in connection with any Remodeling Plan at such Subject Restaurant. However, if Buyer seeks such indemnity, it shall be the sole and exclusive remedy of related claims the Buyer and any other Purchaser Indemnitee with respect to such breach by Seller and Buyer and any other Purchaser Indemnitee shall only not be entitled permitted to recover once for seek any additional Losses with respect to such claim or group breach. For the avoidance of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties doubt, the limitations set forth in Sections 11.6(a) and 11.6(b) shall not limit the Liability of Seller for Losses based on, resulting from, arising out of or under Section 11.3(b) and this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterSection 11.6(e).
(f) For purposes of determining (i) whether there has been In connection with any misrepresentation or indemnity claim brought by a Purchaser Indemnitee for a breach of a the representation or and warranty made by Seller in the second sentence of Section 6.6(a), no Purchaser Indemnitee shall be deemed to have suffered any Losses if the information contained on Schedule 6.6(a) fairly and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “accurately presents in all material respects” or any similar qualification, term or phrase shall be disregardedrespects the EBITDA for the Subject Restaurants taken as a whole.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Carrols Restaurant Group, Inc.)
Certain Limitations. The Party making a claim under this Section 10.3 is referred to as the “Indemnified Party”, and the Party against whom such claims are asserted under this Section 10.3 is referred to as the “Indemnifying Party.” The indemnification provided for in Section 10.1 and Section 10.2 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller Sellers shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Parties for indemnification under Section 7.2(a)(i10.1(a) unless with respect to breaches of representations and warranties until the aggregate amount of all Losses that would be payable pursuant to such Damages claim exceeds one million two hundred seventy-five thousand dollars ($250,000 1,275,000) (the “Indemnification Deductible”), in which event Sellers shall be required to pay or be liable for Losses in excess thereof; provided, however, that the aggregate amount of all Losses for which Sellers shall be liable under Section 10.1(a) for breaches of representations and provided further that warranties shall not exceed an amount equal to one million two hundred seventy-five thousand dollars ($1,275,000) (the “Indemnity Cap”) and, absent Fraud, Buyer shall only have recourse to Sellers for any such breaches up to the Indemnity Cap. Notwithstanding anything to the contrary in the case of any inaccuracy in or breach of any Company Fundamental Representationthis Agreement, the Seller Deductible and Indemnity Cap shall be directly liable to not affect or otherwise limit any claim made or available under the Buyer Indemnified Persons to R&W Insurance Policy.
(b) For the extent such Damages are not covered by the Indemnification Insurance Policy for avoidance of doubt, any reason other than the lack of good faith efforts Losses suffered by the Buyer Indemnified Persons Parties from any and all Excluded Claims shall not be subject to seek recovery thereunder and comply with the terms and conditions thereof (including Deductible or the deductible provided for thereinIndemnity Cap; provided, notwithstanding anything to the contrary set forth in this Agreement, the coverage limit being exceeded or coverage being denied), up to an aggregate amount equal to that shall be payable by Sellers for Excluded Claims shall in no event exceed ten percent (10%) of the Purchase Price actually less any amounts paid from the Escrow Amount; and, provided further, that in no event shall any Voting Trust certificate holder be liable or responsible for indemnification claims under this Agreement in an amount in excess of the portion of the Purchase Price received by such Voting Trust certificate holder.
(c) Payments by an Indemnifying Party pursuant to Section 10.1 or Section 10.2 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds (if applicable) and any indemnity, contribution or other similar payment received by the Seller pursuant Indemnified Party in respect of any such claim (netted against costs or expenses incurred by the Indemnified Party in connection with such recovery), provided that this Section 10.3(c) shall not apply to this Agreementthe R&W Insurance Policy except to the extent that the amount of insurance proceeds received by the Buyer (netted against costs or expenses incurred by the Indemnified Party in connection with such recovery) are in excess of the retention amount. The Indemnified Party shall use its commercially reasonable efforts to recover under any such insurance policies, for any Losses; provided, however no Indemnified Party shall be required to commence or engage in litigation or initiate any other Action against any insurance carrier.
(bd) 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 mitigate the breach that gives rise to such Loss.
(e) The amount of any indemnity provided under this ARTICLE 10, other than indemnity with respect to claims which are not subjected to the Deductible or the Indemnity Cap, shall be reduced (but not below zero) by the amount of any actual net reduction in cash payments for Taxes realized by the Indemnified Parties as a result of the Losses giving rise to such indemnity claim.
(f) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to in this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) Sellers shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive have any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or liability for any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value otherwise indemnifiable Loss to the extent that the matter giving rise to such diminution of value is Loss had been reserved for in the probable and reasonably foreseeable result of Company Financial Statements or the applicable breach of a representation, warranty, covenant Closing Statement or agreement hereunder, (ii) the Buyer Indemnified Parties have been otherwise compensated through an adjustment to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person Estimated Purchase Price pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedSection 1.4.
(g) Seller makes no representations or warranties regarding For the purposes of determining the amount or availability of any net operating lossLosses suffered by any Buyer Indemnified Parties, capital lossthe representations, tax credit carryover warranties and covenants of Sellers and the Company set forth in this Agreement shall be considered without regard to any materiality or other Tax asset or liability Material Adverse Effect qualification therein.
(h) Notwithstanding anything to the contrary contained in this Agreement, none of the Acquired Companies parties hereto shall have any liability under any provision of this Agreement for any punitive or exemplary damages, any multiple, consequential, special or indirect damages, and any damages for loss of future profits, revenue or income, damages based on any multiple of revenue or income, loss from diminution in value, or loss of business reputation or opportunity or statutory damages relating to the breach, except to the extent such damages are actually awarded to a third Person.
(i) In addition to the other limitations contained in this Agreement, the Sellers obligation for Pre-Closing Taxes shall not include any taxable period Taxes (and related Losses) to the extent arising from or portion thereof) beginning after relating to the ClosingReorganization.
Appears in 1 contract
Sources: Stock Purchase Agreement (Tegna Inc)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 (and with respect to Section 8.04(d), the indemnification provided for in Section 7.03(a)(i)) shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller The Sellers shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(i) unless and for Company/Seller Warranty Breaches until the aggregate amount of such Damages all Losses in respect of Company/Seller Warranty Breaches exceeds $250,000 US$60,000 (the “Indemnification DeductibleBasket”), in which event the Sellers shall be required to pay or be liable for all Losses in excess of the Basket; and provided further that in provided, the case foregoing limitation shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any the Company Fundamental RepresentationWarranties, or the Seller shall be directly liable to Fundamental Warranties, or in the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack case of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementfraud.
(b) Notwithstanding anything to The aggregate amount of all Losses for which the contrary herein, except Sellers shall be liable for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Company/Seller for all Damages under Section 7.2(a) Warranty Breaches shall not exceed US$2,500,000 (the aggregate Purchase Price actually received “General Cap”); provided, the foregoing limitation shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of the Company Fundamental Warranties, the Seller pursuant to this AgreementFundamental Warranties, and (ii) or the aggregate liability Company Business Warranties, or in the case of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementfraud.
(c) The parties hereto expressly waive any claim to consequentialaggregate amount of all Losses for which the Sellers shall be liable for Company/Seller Warranty Breaches in respect of Company Business Warranties shall not exceed US$2,500,000; provided, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) the foregoing limitation shall not apply in the event case of diminution of value fraud. For clarity, the foregoing limitation does not apply to the extent that such diminution of value is the probable and reasonably foreseeable result Company/Seller Warranty Breaches in respect of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified PersonCompany Fundamental Warranties, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsSeller Fundamental Warranties.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person The aggregate amount of all Losses for which the Sellers shall be liable pursuant to this Article VII with respect to any claim or group Section 7.03(a)(i) and Section 8.02 shall not exceed the Purchase Price (the “Aggregate Cap”); provided, the foregoing limitation shall not apply in the case of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementfraud.
(e) No The Buyer Indemnified Person shall not be entitled liable to the Seller Indemnitees for indemnification under this Agreement (i) for Buyer Warranty Breaches until the aggregate amount of all Losses in respect of Buyer Warranty Breaches exceeds the Basket, in which event the Buyer shall be required to pay or be liable for all Losses in excess of the Basket; provided, the foregoing limitation shall not apply to Losses based upon, arising out of, with respect to or by reason of any Damages to inaccuracy in or breach of the extent such Damages were taken into account Buyer Fundamental Warranties or in the calculation case of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterfraud.
(f) The aggregate amount of all Losses for which the Buyer shall be liable for Buyer Warranty Breaches shall not exceed the General Cap; provided, the foregoing limitation shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of the Buyer Fundamental Warranties or in the case of fraud.
(g) The aggregate amount of all Losses for which the Buyer shall be liable pursuant to Section 8.03 shall not exceed the Aggregate Cap; provided, the foregoing limitation shall not apply in the case of fraud.
(h) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty warranty, and (ii) for purposes of determining the amount of any Damages Losses resulting therefrom, all qualifications or exception exceptions in any representation or warranty relating to or referring to the terms “material”, ,” “materiality”, “Material Adverse Effect”, ,” “in all material respects,” “Material Adverse Effect” or any words of similar qualification, term or phrase import shall be disregarded, except such words shall not be disregarded in uses of the defined terms “Material Contracts”.
(gi) Seller makes no representations Payments by an Indemnifying Party pursuant to Section 8.02 or warranties regarding Section 8.03 in respect of any Loss shall be limited to the amount or availability of any net operating lossliability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, capital loss, tax credit carryover contribution or other Tax asset or liability similar payment actually received by the Indemnified Party (increased by any costs and expenses incurred by the Indemnified Party with respect to such recovery, and increased by Taxes of the Acquired Companies in any taxable period Indemnified Party (or portion thereofthe Company, in the case of a Buyer Indemnitee) beginning after attributable to the Closingreceipt of any such proceeds) by the Indemnified Party (or the Company, in the case of a Buyer Indemnitee) in respect of any such Loss.
(j) 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 would be reasonably expected to, or does, give rise thereto, but such Indemnified Party will not have a duty to incur any material costs in connection with the foregoing, and any out-of-pocket costs incurred by such Indemnified Party in connection with such mitigation shall constitute Losses that may be recovered by such Indemnified Party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Duddell Street Acquisition Corp.)
Certain Limitations. The indemnification provided for in Section 8.01 and Section 8.02 shall be subject to the following limitations:
(a) Except Sellers shall not be liable to the Buyer Indemnitees for claims arising indemnification under Section 8.01(a) until (i) the individual breach or liability or series of breaches or liabilities related to such Seller warranty breaches or indemnified liabilities, as applicable, exceeds $10,000 and (ii) the aggregate amount of all Losses in respect of indemnification under Section 8.01(a) exceeds $150,000 (the “Basket”), in which event Sellers shall be required to pay or be liable for all such Losses from Intentional Fraud, criminal activity or willful breaches the first dollar. The aggregate amount of covenants, any Damages all Losses for which the Seller Sellers shall be liable pursuant to Section 7.2(a)(i8.01(a) (other than in the case of any fraud, intentional misrepresentation, willful misconduct or criminal conduct by or on behalf of any Seller or the Company) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess exceed 100% of the Indemnification Deductible up to an amount not to exceed $250,000 Purchase Price (the “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 Seller shall have no liability for aggregate amount of all Losses in respect of indemnification under Section 7.2(a)(i8.02(a) unless and until 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 such Damages exceeds $250,000 all Losses for which Buyer shall be liable pursuant to Section 8.02(a) (the “Indemnification Deductible”); and provided further that other than in the case of any fraud, intentional misrepresentation, willful misconduct or criminal conduct by or on behalf of the Buyer) shall not exceed the Cap.
(c) Notwithstanding the foregoing, the limitations set forth in Error! Reference source not found. and Error! Reference source not found. shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any Company Fundamental Representationrepresentation or warranty in Section 4.01, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder 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 comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants5.06.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to For purposes of this Article VII with respect ARTICLE VIII, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any claim materiality, Material Adverse Effect or group of related claims shall only be entitled other similar qualification contained in or otherwise applicable to recover once for such claim representation or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementwarranty.
(e) No Buyer Indemnified Person shall be entitled to indemnification under Notwithstanding anything in this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in contrary and for the calculation avoidance of doubt, none of the Final Closing Working Capitallimitations on indemnification set forth in this Error! Reference source not found. shall apply to any indemnification claims arising out of, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterresulting from fraud, intentional misrepresentation, willful misconduct or criminal conduct.
(f) For purposes of determining (i) whether there has been An Indemnified Party shall not be entitled to indemnification for any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrompunitive damages, all qualifications or exception in any representation or warranty relating to or referring except to the terms “material”extent any such damages are payable to a third party in connection with a Third Party Claim or except in connection with any fraud, “materiality”intentional misrepresentation, “Material Adverse Effect”, “in all material respects” willful misconduct or any similar qualification, term or phrase shall be disregardedcriminal conduct.
(g) Seller makes 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 representations or warranties regarding 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 Damages, then the Indemnified Party shall promptly reimburse the Indemnifying Party for any such indemnification payment up to the amount or availability of any net operating lossactually received by the Indemnified Party from such Collateral Source, capital loss, tax credit carryover or other Tax asset or liability of less the Acquired Companies in any taxable period (or portion thereof) beginning after the ClosingRecovery Costs.
Appears in 1 contract
Sources: Stock Purchase Agreement (ParcelPal Logistics Inc.)
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary hereincontained in this Agreement, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches the rights of covenants, the Buyer Indemnified Parties and the Seller Indemnified Parties to indemnification under this Article 14 shall be limited as follows:
(i) the aggregate liability of the Seller no Claim Notice for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant indemnification may be provided with respect to this Agreement, and (ii) the aggregate liability of Buyer any Claim for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or other agreement hereunder, in this Agreement (x) beyond the survival period specified in Section 14.2(c) or (y) prior to the Closing;
(ii) Seller’s aggregate liability for all claims made under Section 14.2(a) shall be limited to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or and shall not $9,000,000;
(iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(dSeller shall have liability for claims made under Section 14.2(a)(iii) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included such claims in the Interim Financial Statements aggregate exceed a specific liability or reserve relating to such matter.deductible amount equal $536,250 (the “Deductible”);
(fiv) For purposes EXCEPT AS OTHERWISE PROVIDED HEREIN, THE INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION 14.2 SHALL BE WITHOUT REGARD TO THE INDEMNIFIED PARTY’S SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT;
(v) the provisions of determining (i) whether this Section 14.2 shall apply in such a manner as not to give duplicative effect to any item of adjustment. If there has been an adjustment to the Purchase Price pursuant to Section 2.2 or Article 12 for any misrepresentation Loss, there shall not be any charge against the Deductible for any such Loss that gave rise to such adjustment in the Purchase Price pursuant to Section 2.2 or breach Article 12 to the extent of a representation or warranty and the amount of such Loss given effect in such adjustment to the Purchase Price;
(iivi) the amount of any Damages resulting therefromLosses for which indemnification is provided under this Section 14.2 shall be computed net of any insurance or other proceeds actually received by the Indemnified Party in connection with such Losses. Each of the Buyer Indemnified Parties and each of the Seller Indemnified Parties shall pursue in good faith claims under any applicable insurance policies and against other third parties who may reasonably be expected to be responsible for such Losses; and
(vii) upon payment of any Losses with respect to a Claim pursuant to this Section 14.2, all qualifications or exception in any representation or warranty relating to or referring the Indemnifying Party shall be subrogated to the terms “material”, “materiality”, “Material Adverse Effect”, “extent of such payment (and to recover costs or expenses incurred by the Indemnifying Party in all material respects” or any similar qualification, term or phrase shall be disregarded.
(genforcing such recovery rights against such Person) Seller makes no representations or warranties regarding to the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability rights of the Acquired Companies in Indemnified Party against any taxable period (Person with respect to the subject matter of such Claim. The Indemnified Party shall assign such rights to and otherwise reasonably cooperate with the Indemnifying Party, at the cost and expense of the Indemnifying Party, to pursue any claims against or portion thereof) beginning after the Closingotherwise recover amounts from, any Person liable or responsible for any Losses for which indemnification has been received pursuant to this Agreement.
Appears in 1 contract
Certain Limitations. The indemnification provided for in ARTICLE X shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches None of covenants, any Damages for which the Seller Principal Shareholders shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons Indemnitees for such Damages pursuant indemnification for breaches of any representations and warranties made to the Buyer Parties, including those referenced under Section 7.2(a)(i10.02(a) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”and 10.04(a), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of all Losses in respect of indemnification with respect to such Damages representations and warranties exceeds $250,000 200,000.00 (the “Indemnification "Deductible”"); and provided further that , in which event the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller Principal Shareholders shall be directly required to pay or be liable to for all such Losses in excess of the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this AgreementDeductible.
(b) Notwithstanding anything in this Agreement to the contrary, the aggregate cumulative amount of all Losses for which the Principal Shareholders shall be liable pursuant to breaches of representations and warranties shall not exceed $10,000,000.00 (the "Cap"); provided, however, that Losses arising with respect to any inaccuracy in or breach of the Fundamental Representations, or with respect to Indemnified Taxes, shall be capped at the Purchase Price.
(c) Notwithstanding anything to the contrary contained herein, except the Selling Shareholders, that are not Principal Shareholders, shall not indemnify, nor have any liability for Damages resulting from Intentional Fraudany indemnifiable Losses related to the indemnification pursuant to or otherwise contemplated in Section 10.3.
(d) Notwithstanding anything to the contrary contained herein, criminal activity or willful breaches of covenants, (i) the aggregate liability none of the Seller Selling Shareholders shall be liable for all Damages under Section 7.2(a) shall not exceed or required to pay for any Losses that in aggregate are in excess of the aggregate pro rata portion of the Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementrespective Selling Shareholder.
(e) No The Buyer Indemnified Person Indemnities shall not be entitled to indemnification recover any Losses relating to any matter arising under one provision of this Agreement (i) in respect of any Damages to the extent that the Buyer Indemnitees have already recovered Losses with respect to such Damages were matter pursuant to other provisions of this Agreement. Without limiting the generality of the foregoing, to the extent that a liability is taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction ExpensesCash Consideration, or (ii) for is otherwise reflected in the Purchase Price or any Damages relating to any matter adjustment to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefromPurchase Price, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase no Buyer Indemnitee shall be disregardedentitled to indemnification hereunder pursuant to ARTICLE X for such liability.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Zynex Inc)
Certain Limitations. Notwithstanding anything in this Agreement to the contrary,
(a) Except for claims arising from Intentional Fraud, criminal activity no party shall indemnify or willful breaches of covenants, any Damages for which the Seller shall otherwise be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim for any breach of a representation or group warranty, unless notice of related claims the claim is given within twelve months after the Closing Date;
(b) PCC shall only not be entitled required to indemnify or otherwise be liable to DCI or Purchaser for any breach of a representation or warranty, unless the Losses of DCI or Purchaser from all such breaches exceed in the aggregate Twenty-Five Thousand Dollars ($25,000), in which event PCC shall be required to indemnify DCI and Purchaser for all such Losses (subject to the other limitations in this Agreement);
(c) DCI shall not be required to indemnify or otherwise be liable to PCC or Seller for any breach of a representation or warranty unless the Losses of PCC and Seller from all such breaches exceed in the aggregate Twenty-Five Thousand Dollars ($25,000), in which event DCI shall be required to indemnify PCC and Seller for all such Losses (subject to the other limitations in this Agreement);
(d) PCC shall not be required to indemnify or otherwise be liable to DCI or Purchaser for any breach of a representation or warranty, to the extent that the Losses of DCI and Purchaser from all such breaches exceed in the aggregate Twenty Million Dollars ($20,000,000);
(e) DCI shall not be required to indemnify or otherwise be liable to PCC or Seller for any breach of a representation or warranty to the extent that the Losses of PCC and Seller from all such breaches exceed in the aggregate Twenty Million Dollars ($20,000,000);
(f) PCC shall not be required to indemnify or otherwise be liable to DCI or Purchaser for any breach of Section 3.9 unless PCC is able to recover once for and does recover the amount of the Loss from such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this from Landmark pursuant to the Landmark Agreement.
(eg) No Buyer Indemnified Person shall the amount of Losses for which a Claimant may be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) but not the amount of Losses suffered by a Claimant for purposes of the foregoing provisions of this Section 9.5) shall be determined on an after-tax basis, after giving effect to any Damages resulting therefrom, all qualifications or exception in tax benefit arising from the incurring of any representation or warranty relating to or referring Loss and any tax detriment arising from the indemnification thereof;
(h) indemnification of Losses under this Agreement shall be net of any insurance proceeds actually paid to the terms “material”Claimant with respect to the event giving rise to such Loss, “materiality”, “Material Adverse Effect”, “in all material respects” or but no Claimant shall have any similar qualification, term or phrase shall obligation under this Agreement to make any claim under any insurance policy that may be disregardedapplicable to such event.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Paxson Communications Corp)
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except The aggregate amount of Losses for which the Buyer Indemnified Parties or Seller Indemnified Parties, as applicable, shall be entitled to indemnification pursuant to this Article VIII shall not exceed $100,000 (the “Indemnification Cap”), other than with respect to the following: claims arising from Intentional based on Fraud, criminal activity or willful breaches misconduct of covenantsSeller (the claims described in clauses (i), any Damages for which (ii), and (iii), the “Seller Special Indemnification Matters”) and claims based on Fraud, criminal activity or willful misconduct of Buyer (the claims described in clauses (i), (ii) and (iii), the “Buyer Special Indemnification Matters”).
(b) Seller shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Parties for indemnification under Section 7.2(a)(i) 8.02 unless and until the aggregate amount of such Damages exceeds Losses in respect of indemnification under Section 8.02 exceed $250,000 50,000 (the “Indemnification DeductibleThreshold”) (provided that any individual or series of related Losses which do not exceed $50,000 (“De-Minimis Losses”) shall not be counted towards the Threshold); and provided further that in , at which time the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller Buyer Indemnified Party shall be directly indemnified for the amount of Losses in excess of the Threshold up to the Cap, including, for the avoidance of doubt, De-Minimis Losses; provided, however, that such Losses to be paid solely from return of shares of stock held by Seller in Buyer; provided, further, that the Threshold and the exclusion of De-Minimis Losses shall not be applicable with respect to, and each Buyer Indemnified Party shall be entitled to be indemnified for, all Losses arising out of or resulting from the indemnification obligation with respect to Seller Special Indemnification Matters. Buyer shall not be liable to the Buyer Seller Indemnified Persons to Parties for indemnification under Section 8.03 unless and until the extent such Damages are aggregate amount of Losses in respect of indemnification under Section 8.03 exceeds the Threshold (provided that De-Minimis Losses shall not covered by be counted towards the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being deniedThreshold), up to an amount equal to the Purchase Price actually received by at which time the Seller pursuant Indemnified Party shall be indemnified for the amount of Losses in excess of the Threshold, including, for the avoidance of doubt, De-Minimis Losses; provided, however, that the Threshold and the exclusion of De-Minimis Losses shall not be applicable with respect to, and each Seller Indemnified Party shall be entitled to this Agreement.
(b) Notwithstanding anything to the contrary hereinbe indemnified for, except for Damages all Losses arising out of or resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant indemnification obligation with respect to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this AgreementSpecial Indemnification Matters.
(c) The parties hereto expressly waive Payments by the Indemnifying Party (as defined in Section 8.05) pursuant to Article VIII in respect of any claim 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 (as defined in Section 8.05) in respect of any such claim.
(d) Notwithstanding the foregoing, in no event shall the Indemnifying Party be liable to the Indemnified Party for any punitive, incidental, consequential, punitive special or indirectindirect damages, lost profitsincluding loss of future revenue or income, diminution in valueloss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value multiple except to the extent that such diminution of value is the probable adjudicated and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) owed to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this AgreementThird Party Claim.
(e) No Buyer Each Indemnified Person Party shall be entitled take, and cause its Affiliates to indemnification under this Agreement (i) in respect take, all reasonable steps to mitigate any Loss, including by pursuing insurance claims and claims against third parties, and shall reasonably consult and cooperate with the Indemnifying Party with a view toward mitigating Losses upon becoming aware of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness event or Company Transaction Expensescircumstance that would be reasonably expected to, or (ii) for any Damages relating does, give rise to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterLosses.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Agriforce Growing Systems Ltd.)
Certain Limitations. The indemnification provided for in Section VI.2 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the The Seller shall not be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability Indemnitees for indemnification under Section 7.2(a)(iVI.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case 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 Company representation or warranty in Section II.1, II.3, II.6 or II.17 (the “Fundamental RepresentationRepresentations”), until the aggregate amount of all Losses in respect of indemnification under Section VI.2(a)(i) (other than those based upon, arising out of, with respect to or by reason of the Fundamental Representations) exceeds $50,000.00 (the “Deductible”), in which event the Seller shall be directly required to pay or be liable for such Losses only to the extent they exceed the Deductible.
(b) The Seller’s aggregate liability to the Buyer Indemnified Persons to the extent such Damages are Indemnitees for indemnification this Article VI shall not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof exceed $1,000,000.00.
(including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received c) Payments by the Seller pursuant to this Article VI in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be received by the Buyer Indemnitees from a third party in respect of any such claim. The Buyer Indemnitees shall use commercially reasonable efforts to recover in a timely manner under insurance policies or indemnity, contribution or other similar agreements for any Losses prior to seeking indemnification under this Agreement.
(bd) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received Payments by the Seller pursuant to this Agreement, and (ii) the aggregate liability Article VI in respect of Buyer for all Damages under Section 7.2(b) any Loss shall not exceed the aggregate Purchase Price actually paid be reduced by an amount equal to any Tax benefit realized or reasonably expected to be realized as a result of such Loss by the Buyer Indemnitees.
(e) In no event shall the Seller or the Buyer be liable pursuant to this Agreement.
(c) The parties hereto expressly waive Article VI for any claim to punitive damages or incidental, consequential, punitive special or indirectindirect damages, lost profitsincluding loss of future revenue or income, loss of business reputation or opportunity, or diminution in value, special, exemplary or similar damages of value or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes Each of determining (i) whether there has been the Buyer and the Seller shall take, and cause its Affiliates to take, all reasonable steps to mitigate any misrepresentation or breach of a representation or warranty and (ii) the amount Loss upon becoming aware of any Damages resulting therefromevent or circumstance that would be reasonably expected to, all qualifications or exception in any representation or warranty relating to or referring does, give rise thereto, including incurring costs only to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedminimum extent necessary to remedy the breach that gives rise to such Loss.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Securities Purchase Agreement (Pulse Network, Inc.)
Certain Limitations. (ai) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which Notwithstanding anything to the Seller contrary contained in this Agreement: (A) no Buyer Indemnified Party shall be liable entitled to recover any Losses (other than Losses that relate to Taxes) pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i9.2(a) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in all Losses actually incurred or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts suffered by the Buyer Indemnified Persons Parties pursuant to seek recovery thereunder and comply with Section 9.2(a) is in excess of $2,000,000 in the terms and conditions thereof aggregate (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied“Deductible”), up to an amount equal and then only to the Purchase Price actually received by extent that such Losses exceed the Seller Deductible; and (B) no Buyer Indemnified Party shall be entitled to recover any Losses (other than Losses that relate to Taxes) pursuant to Section 9.2(a) in respect of any single claim if the amount of such Losses is less than $50,000 (the “Minimum Loss Amount”), and no such Losses that are less than the Minimum Loss Amount shall be included in calculating the aggregate Losses for purposes of determining if the Deductible has been met in this AgreementSection 9.2(b); provided, that in each case all related single claims and losses will be aggregated in determining whether the Minimum Loss Amount is met. The limitations in this Section 9.2(b)(i) shall not apply to Losses attributable to claims for breaches of Section 3.12 or Excluded Claims.
(bii) Notwithstanding anything to the contrary hereincontained in this Agreement: (A) except with respect to Losses attributable to Excluded Claims, except the Buyer Indemnified Parties shall have no right to receive any indemnification payments from the Indemnifying Parties for Damages resulting from Intentional Fraud, criminal activity or willful breaches any claims for Losses pursuant to Section 9.2(a) in excess of covenants, the amount then remaining in the Escrow Account; (iB) the aggregate liability Buyer Indemnified Parties shall have no right to receive any indemnification from the Indemnifying Parties for any claims for Losses pursuant to Section 9.2(a) (including Excluded Claims) in excess of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually amount of Aggregate Stockholder Cash Proceeds and Aggregate Option Cash Proceeds received by the Seller pursuant to this Agreement, Indemnifying Parties; and (iiC) no Indemnifying Party shall be liable for an amount in excess of such Indemnifying Party’s pro rata portion (calculated in the aggregate liability manner set forth in Section 9.2(a)) of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreementany Losses that are indemnifiable hereunder.
(ciii) The parties hereto expressly waive For the purpose of quantifying Buyer Indemnified Party’s Losses under this Article 9 only (but not for determining whether any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunderhas been breached or is inaccurate), any representation, warranty, covenant or agreement given or made by the Company that is qualified in scope as to materiality (iiincluding a Company Material Adverse Effect) shall be deemed to be made or given without such qualifications.
(iv) For the extent purpose of this Article 9 only, the amount of any Loss shall be reduced by (A) any insurance proceeds actually received by a Buyer Indemnified Party with respect to such Loss and (B) any amounts actually recovered by a third party (including Buyer Indemnified Party from another Person in respect of such Losses. In addition, for purposes of determining the amount of any Loss attributable to Taxes of the Company or any of its Subsidiaries in any Pre-Closing Taxable Period, the amount of any such Loss shall be reduced by any correlative tax savings or benefit actually recognized by a Governmental Body) from an Buyer Indemnified Person, Party as a result of incurring such Loss on or (iii) before the end of the taxable year after the tax year in which such Loss is incurred or in which the event amount of Intentional Fraud, criminal activity or willful breaches of covenantssuch Loss is finally determined in accordance with this Agreement.
(dv) An Anything herein to the contrary notwithstanding, no Indemnifying Party shall have any liability under any provision of this Agreement for, and Losses shall not include, any punitive, exemplary or other similar damages, unless the applicable Buyer Indemnified Person entitled Party is required to indemnification by an Indemnifying Person pursuant pay such damages to this Article VII with respect a third party as part of a third party claim against such Buyer Indemnified Party that is otherwise indemnifiable hereunder.
(vi) Notwithstanding anything to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties the contrary set forth in this Agreement, no Indemnifying Party shall have any Liability for Taxes incurred by the Company or any Subsidiary of the Company resulting from the transactions contemplated by this Agreement (including any Employment Transaction Taxes or Transfer Taxes, which shall be the responsibility of Buyer), other than Taxes that would not have been incurred but for a breach of any of the representations, warranties and covenants contained in Section 3.12, Section 3.13, Section 3.20, Section 5.5, Section 5.6 and Section 5.11.
(evii) No Buyer In no event shall an Indemnified Person shall Party be entitled indemnified for any indemnifiable Losses pursuant to indemnification under this Agreement (i) in respect Article 9 related to or arising from the amount, value or condition of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability attribute (e.g., net operating loss carry-forward (including, but not limited to, any such carry-forward attributable to payment of the Acquired Companies in aggregate Option Consideration with respect to all Vested Options and amounts required to be paid at the Closing under the management transaction incentive plan or other arrangements described on Section 1.1(a) of the Schedule of Exceptions) or Tax credit carry-forward) of the Company or the ability of Buyer or the Surviving Corporation to utilize any such Tax asset or attribute for any taxable period (or portion thereof) beginning commencing after the ClosingEffective Time, other than Losses that arise in connection with a breach or inaccuracy of any of the representations, warranties and covenants contained in Section 3.13(d), Section 3.13(i), Section 3.13(j), Section 3.13(k) or Section 5.6.
Appears in 1 contract
Certain Limitations. (a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches The obligations of covenants, any Damages for which the Seller shall be liable Sellers in respect of Purchaser Indemnity Claims pursuant to Section 7.2(a)(i8.02(a) (other than Purchaser Indemnity Claims in respect of a breach of any Fundamental Representations or that arise from fraud by or on behalf of any Seller, which shall not be subject to the limitations set forth in this Section 8.05) (“Covered Purchaser Indemnity Claims”) shall become operative and effective only if and to the extent that the aggregate amount of all Losses incurred by the applicable Indemnitees arising from Covered Purchaser Indemnity Claims exceeds $5,000,000 (the “Basket Amount”). Covered Purchaser Indemnity Claims shall accumulate until such time as the aggregate amount of all Losses arising therefrom exceeds the Basket Amount, at which time the Sellers shall be satisfied solely obligated to indemnify the applicable Indemnitees against such Losses, but only to the extent the aggregate amount thereof exceeds the Basket Amount.
(b) The obligations of the Parent and the Purchaser in respect of Seller Indemnity Claims pursuant to Section 8.03(a) (other than Seller Indemnity Claims in respect of a breach of any Fundamental Representations or that arise from fraud or an intentional and material misrepresentation by recovery or on behalf of the Purchaser or the Parent, which shall not be subject to the limitations set forth in this Section 8.05) (“Covered Seller Indemnity Claims”) shall become operative and effective only if and to the extent that the aggregate amount of all Losses incurred by Buyer under the Indemnification Insurance Policy applicable Indemnitees arising from Covered Seller Indemnity Claims exceeds the Basket Amount. Covered Seller Indemnity Claims shall accumulate until such time as the aggregate amount of all Losses arising therefrom exceeds the Basket Amount, at which time the Parent and Buyer will the Purchaser shall be obligated to indemnify the applicable Indemnitees against such Losses, but only to the extent the aggregate amount thereof exceeds the Basket Amount.
(c) The maximum obligation of the Sellers to provide indemnification in respect of Covered Purchaser Indemnity Claims shall not exceed $56,000,000 (the “Cap Amount”).
(d) The maximum obligation of the Parent and the Purchaser to provide indemnification in respect of Covered Seller Indemnity Claims shall not exceed the Cap Amount.
(e) The obligations of the Sellers in respect of any Covered Purchaser Indemnity Claim shall not apply if the amount of Loss incurred by the applicable Indemnitees related to such individual Covered Purchaser Indemnity Claim, together with all related Covered Purchaser Indemnity Claims, totals less than $45,000 (the “De Minimis Threshold”).
(f) The obligations of the Parent and the Purchaser in respect of Covered Seller Indemnity Claims shall become operative and effective only if and to the extent that the amount of Loss incurred by the applicable Indemnitees related to each individual Covered Seller Indemnity Claim or series of related Covered Purchaser Indemnity Claims exceeds the De Minimis Threshold.
(g) Each of the parties hereby acknowledges and agrees that the limitations provided for in Section 8.05(a) through Section 8.05(f) above apply only to Covered Purchaser Indemnity Claims or Covered Seller Indemnity Claims (as the case may be), and do not apply to any other rights to indemnification provided for in this Article VIII, including rights to indemnification against Retained Liabilities or Assumed Liabilities (as the case may be).
(h) Notwithstanding anything to the contrary contained in this Article VIII, the Sellers shall have no recourse against obligation to indemnify the Seller Purchaser or its Affiliates under Section 8.02(a) or Section 8.02(c) with respect to any liabilities or obligations arising from the Release of Materials of Environmental Concern to the Environment if such Damagesliabilities or obligations constitute Excluded Pre-Closing Environmental Liabilities. In addition, whether the obligation of the Sellers to provide indemnification pursuant to Section 8.02(a) or not Section 8.02(c) with respect to any clean up costs or costs of remediation arising from the entirety Release of Materials of Environmental Concern to the Environment shall be limited to costs associated with clean up and remediation actions that are (i) required by applicable Environmental Law or an Order issued by a Governmental Authority, reasonably necessary in order to avoid a Legal Proceeding threatened by a Governmental Entity or other Person under any Environmental Law or reasonably necessary in order to prevent or mitigate an imminent and substantial endangerment to human health or the environment and (ii) taken in good faith and in a manner consistent with the actions that would be taken by a reasonable and prudent business person who owns the applicable Real Property (without consideration of the benefit of any such Damages is covered indemnification provided by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that Sellers).
(i) Any Losses for which any Indemnitee would be entitled to indemnification under this Article VIII shall be reduced by (i) the Seller shall be directly liable to amount of insurance proceeds actually received or recovered under any insurance policies for the Buyer Indemnified Persons for benefit of such Damages Indemnitee (including the Title Policies) and any cash payments, setoffs or recoupment of any payments recovered by such Indemnitee in respect of such Losses (other than pursuant to Section 7.2(a)(i) in excess of any indemnification or similar arrangements that the Indemnification Deductible up to an amount not to exceed $250,000 (Indemnitee has purchased following the “Cap”Closing Date), and (ii) any Tax Benefit. To the Seller extent required by principles of applicable Delaware contract law, each Indemnitee shall have no liability use commercially reasonable efforts to mitigate losses for which such Indemnitee is subject to indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Article VIII. Notwithstanding anything to the contrary hereinin the previous Section, except if an Indemnitee believes that coverage for Damages resulting from Intentional FraudLosses is likely to be available under the Title Policies, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) such Indemnitee shall not exceed the aggregate Purchase Price actually received by the Seller use commercially reasonable efforts to pursue any insurance proceeds available to such Indemnitee pursuant to any Title Policies. If, after the Indemnitor has made an indemnification payment to an Indemnitee in satisfaction of its obligations under this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant Article VIII with respect to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive Third-Party Claim or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person Direct Claim pursuant to this Article VII with VIII, the Indemnitee actually recovers from any third parties amounts in respect of such Losses of the type described in the first sentence of this Section 8.05(i), it shall as promptly as practicable forward to the Indemnitor such amounts (less the full amount of expenses incurred in procuring such recovery, including any claim applicable deductibles or group retentions), but not in excess of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreementthe indemnification payment received by the Indemnitee.
(ej) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect For the avoidance of doubt, if any Damages to the extent such Damages were taken into account Loss was included as a current liability in the calculation of the Final Closing Working CapitalCapital in accordance with the provisions of Section 1.05, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of such Loss may not be recovered under this Article VIII, but the amount, if any, of any Damages resulting therefrom, all qualifications or exception such Loss that exceeds the amount included as a current liability in any representation or warranty relating to or referring the calculation of Final Working Capital may be recovered on and subject to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedand conditions of this Article VIII.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. The indemnification provided for in Section 8.02 and Section 8.03 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches of covenants, any Damages for which the Seller shall be liable pursuant Subject to Section 7.2(a)(i) 2.06, Sellers shall not be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons Indemnitees for indemnification under Section 8.02(a) (i) for any Loss until the amount of such Damages pursuant Loss exceeds $1,000 in which event Sellers shall be required to Section 7.2(a)(i) in excess of pay or be liable for the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”)entire such Loss, and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages all Losses in respect of indemnification under Section 8.02(a) exceeds $250,000 100,000, in the aggregate (the “Indemnification DeductibleBaskets”); and provided further that , in which event Sellers shall be required to pay or be liable for all such Losses from the first dollar. Notwithstanding anything to the contrary contained in the case foregoing, Sellers shall not be liable to Buyer for any Losses in an aggregate amount in excess of $1,500,000 except that such limitation shall not apply to the extent that it is exceeded on account of (A) actual fraud by Sellers or the Individual Guarantors, (B) the failure of Sellers to convey to Buyer good title free from Encumbrances as to the LLC Interests other than Permitted Interest Encumbrances, and (C) any matter disclosed on Sections 3.16(a) or 3.16(d) of the Disclosure Schedule or any inaccuracy in or breach of any Company Fundamental Representationthe representations set forth in Sections 3.16(a) or 3.16(d) above (it being understood, however, that the Seller maximum aggregate amount for which the Buyer Indemnitees shall be directly liable entitled to indemnification from any Seller pursuant to this Article VIII shall in no event exceed the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack portion of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreementsuch Seller).
(b) Buyer shall not be liable to Seller Indemnitees for indemnification under Section 8.03(a) until the individual amount of any Loss and the aggregate amount of all Losses in respect of indemnification under Section 8.03(a) exceeds the Baskets, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. Notwithstanding anything to the contrary hereinin the foregoing, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) Buyer shall not exceed the aggregate Purchase Price actually received by the Seller pursuant be liable to this Agreement, and (ii) the aggregate liability Sellers for any amount in excess of Buyer for all Damages under Section 7.2(b) $1,500,000 except that such limitation shall not exceed apply to the aggregate Purchase Price actually paid extent that it is exceeded on account of a claim involving actual fraud by the Buyer pursuant to this AgreementBuyer.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once Solely for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account in the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) calculating the amount of any Damages Loss resulting therefrom, all qualifications from a breach of the representations or exception in any representation or warranty relating to or referring to the terms “material”warranties set forth herein, “materiality”, “” and Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase Effect qualifications shall be disregarded, but such qualifications shall not, for the avoidance of doubt, be disregarded for purposes of determining whether a breach has occurred.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Good Times Restaurants Inc)
Certain Limitations. (a) Except The Seller Parties shall not be liable to the Buyer Indemnitees for claims arising from Intentional Fraudindemnification under Section 7.2(a) until the aggregate amount of all Losses in respect of indemnification under Section 7.2(a) exceeds Thirty Thousand Dollars ($30,000) (the “Basket”), criminal activity or willful breaches in which event the Seller Parties shall be liable for all such Losses in excess of covenants, any Damages the Basket. The aggregate amount of all Losses for which the Seller Parties shall be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the Value of the Acquired Shares (the “Cap”); provided, however, that the aggregate Purchase Price actually received by amount of all Losses for which the Seller Parties shall be liable pursuant to this Agreement, and Section 7.2(a) (ii) except in the aggregate liability case of Buyer for all Damages under Section 7.2(bfraud) shall not exceed the aggregate Purchase Price actually paid by Price.
(b) The Buyer Indemnitees will seek to recover on indemnification claims first from the Holdback Shares valued at the Per Share Value and, only if and to the extent such funds are insufficient, from the Seller Parties; provided, however, that the foregoing shall not preclude a Buyer pursuant Indemnitee from filing an Action against one or more Seller Parties to this Agreementpreserve its legal rights and remedies.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value No Shareholder shall be liable to the extent that such diminution Buyer Indemnitees for indemnification under Section 7.2(a) by reason of value is the probable and reasonably foreseeable result of the applicable an inaccuracy in or breach of a representation, warranty, covenant or agreement hereunder, (ii) to representation and warranty of Seller for more than such Shareholders pro rata share of the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenantsLoss.
(d) An Indemnified Person entitled The amount of Losses on account of which the Seller Parties would otherwise be required to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No indemnify the Buyer Indemnified Person Indemnitees shall be entitled to indemnification under this Agreement reduced by any insurance proceeds (i) in respect net of any Damages to deductibles or co-payments and reasonable attorney’s fees and other expenses actually incurred by the extent Buyer Indemnitees in connection with such Damages were taken into account in recovery) received by the calculation Buyer Indemnitees from any insurance provided by any insurance company not Affiliated therewith and, for the avoidance of the Final Closing Working Capitaldoubt, Company Indebtedness or Company Transaction Expensesexcluding any self-insurance, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matter.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover risk management program or other Tax asset or liability of the Acquired Companies funds set aside by such Person in any taxable period (or portion thereof) beginning after the Closingconnection therewith.
Appears in 1 contract
Sources: Asset Purchase and Reorganization Agreement (Guardion Health Sciences, Inc.)
Certain Limitations. (a) Except Seller shall not be liable to Purchaser for claims arising from Intentional Fraudindemnification under Section 6.2 unless any such claim for indemnification exceeds $100,000.00; (ii) the aggregate amount of Damages with respect to all matters referred to in this Section 6.2(a) (determined without regard to any materiality qualification contained in any representations, criminal activity warranty or willful breaches covenant giving rise to the claim for indemnity hereunder) exceeds $25,000.00 in any one year and then only to the extent of covenants, any such excess; and (iii) in no event shall Seller’s obligation to indemnify Purchaser exceed an amount equal to the Purchase Price in the aggregate.
(b) The aggregate amount of all Damages for which the Seller shall be liable pursuant to Section 7.2(a)(i6.2 shall not exceed the Purchase Price.
(c) shall be satisfied solely Payments by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) 6.2 in excess respect of any Damages shall be limited to the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); any liability or damage that remains after deducting therefrom any insurance proceeds and provided further that in the case of any inaccuracy in indemnity, contribution or breach of any Company Fundamental Representation, the Seller shall other similar payment received or reasonably expected to be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant in respect of any such claim. Seller 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.
(bd) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received Payments by the Seller pursuant to this Agreement, and (ii) the aggregate liability Section 6.2 in respect of Buyer for all any Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid be reduced by an amount equal to any tax benefit realized or reasonably expected to be realized as a result of such Damages by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this AgreementPurchaser.
(e) No Buyer Indemnified Person Purchaser shall be entitled take, and cause its Affiliates to indemnification under this Agreement (i) in respect take, all reasonable steps to mitigate any Damages upon becoming aware of any Damages event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent such Damages were taken into account in necessary to remedy the calculation of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent breach that there is included in the Interim Financial Statements a specific liability or reserve relating gives rise to such matterDamages.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. (a) The Shareholders shall not be required to indemnify the Parent Indemnified Parties for those portions of any Damages that were specifically accrued or deducted in determining any adjustments pursuant to Article III. Parent shall not be required to indemnify the Shareholder Indemnified Parties for those portions of any Damages (i) that were specifically accrued or deducted in determining any adjustments pursuant to Article III or (ii) to the extent directly resulting from any breach of the Company’s obligations under this Agreement. No Person shall be indemnified more than once for the same Damages.
(b) Except for in the case of claims arising from Intentional of Fraud, criminal activity no Shareholder shall have any liability to the Parent Indemnified Parties under Section 9.1(a) (other than with respect to the Fundamental Representations and Warranties) until the aggregate amount of all Damages exceeds $1,050,000 (the “Deductible”), and then only to the extent such Damages exceed the Deductible. Notwithstanding the foregoing sentence, the Fundamental Representations and Warranties shall not be subject to the Deductible.
(c) Except in the case of claims of Fraud, Parent shall not have any liability to the Shareholder Indemnified Parties under Section 9.2(a) until the aggregate amount of all Damages exceeds the Deductible, and then only to the extent such Damages exceed the Deductible.
(d) Except in the case of claims of Fraud and subject to Section 11.7, the Shareholders’ aggregate liability under Section 9.1(a) and Section 9.1(f) shall not exceed the amount of the Indemnification Escrow Amount. Notwithstanding anything herein to the contrary, except in the case of claims of Fraud and subject to Section 11.7, the Shareholders’ shall have no liability under Section 9.1(a) and Section 9.1(f) following the release of the Indemnification Escrow Amount in accordance with Section 9.7 other than for any Continuing Claim. This clause (d) shall in no way limit the Parent Indemnified Parties entitlement to any recovery under the Special Indemnification Escrow Fund.
(e) Except in the case of claims of Fraud and subject to Section 11.7, the Shareholders’ aggregate liability under Section 9.1(g) shall not exceed the sum of the Special Indemnification Escrow Amount and the Indemnification Escrow Amount.
(f) Except in the case of claims of Fraud and subject to Section 11.7, Parent’s aggregate liability under Section 9.2(a) shall not exceed the amount of the Indemnification Escrow Amount.
(g) Except in the case of claims of Fraud against the Shareholder who committed such Fraud or willful breaches if such Shareholder had actual knowledge of covenantsFraud committed by (x) the Company or any of its Subsidiaries or (y) any other Shareholder, the aggregate liability of each Shareholder under this Agreement, or in connection with the transactions contemplated by this Agreement, shall not exceed the portion of the Purchase Price actually received by such Shareholder.
(h) Except in the case of claims of Fraud against Parent or Merger Sub, the aggregate liability of Parent under this Agreement shall not exceed the Purchase Price actually paid by or on behalf of Parent.
(i) Except in the case of claims of Fraud against the Company Shareholder who committed such Fraud or if such Shareholder had actual knowledge of Fraud committed by (x) the Company or any of its Subsidiaries or (y) any other Shareholder, any Damages amounts owed by the Shareholders for which indemnification to the Seller shall be liable pursuant to Parent Indemnified Parties under Section 7.2(a)(i9.1(a) and Section 9.1(f) shall be satisfied solely as follows: (i) first, as a payment by the Escrow Agent from the Indemnification Escrow Fund (on a several, and not joint, basis by the Shareholders to the extent of such funds) and, after such Indemnification Escrow Fund has been exhausted, (ii) second, against the R&W Policy; provided that this clause (i) shall in no way limit the Buyer Indemnified Parties entitlement to any recovery by Buyer under the Special Indemnification Insurance Policy Escrow Fund.
(j) Any amounts owed by the Shareholders for indemnification to the Parent Indemnified Parties under Section 9.1(b)-(e) shall be satisfied as follows: (x) first, as a payment by the Escrow Agent from the Indemnification Escrow Fund (on a several and Buyer will have no recourse not joint basis by the Shareholders to the extent of such funds) and, after such Indemnification Escrow Fund has been exhausted, (y) second, directly against the Seller Shareholders on a several, and not joint, liability basis in accordance with their Pro Rata Portion, subject to the limitation set forth in Section 9.5(d); provided that, in the case of claims of Fraud against such Shareholder who committed such Fraud or if such Shareholder had knowledge of Fraud committed by (x) the Company or any of its Subsidiaries or (y) any other Shareholder, the Parent Indemnified Parties shall not be required to comply with the limitation contained in this Section 9.5(j) solely with respect to such Shareholder.
(k) Any amounts owed by the Shareholders for indemnification to the Parent Indemnified Parties under Section 9.1(g) shall be satisfied as follows: (x) first, as a payment by the Escrow Agent from the Special Indemnification Escrow Fund (on a several and not joint basis by the Shareholders to the extent of such funds) and, after such Indemnification Escrow Fund has been exhausted, (y) second, as a payment by the Escrow Agent from the Indemnification Escrow Fund (on a several and not joint basis by the Shareholders to the extent of such funds).
(l) Any indemnity payment made by the Shareholders to any Parent Indemnified Party, on the one hand, or by Parent to any Shareholder Indemnified Party, on the other hand, pursuant to this Article IX shall be reduced by (A) an amount equal to any insurance proceeds actually received by such Damagesindemnified party in respect of such claim (other than proceeds received under the R&W Policy with respect to claims subject to the Initial Retention (as defined in the R&W Policy)) minus the sum of (i) any out-of-pocket expenses (including reasonable and documented attorneys’ fees and expenses) relating to the recovery of such proceeds and (ii) any deductibles and increases in premiums as a result of such claim and (B) the actual and permanent cash Income Tax savings recognized in the taxable year in which the applicable Damages are incurred by the Parent Indemnified Party or Shareholder Indemnified Party, whether as applicable, that results from the Damages giving rise to such indemnity payment, determined using a “with and without” methodology (as determined in good faith by the Parent Indemnified Party or Shareholder Indemnified Party, as applicable). If any actual and permanent cash Income Tax savings described in the preceding sentence is not recognized until after an applicable indemnification payment is payable, such indemnification payment shall not be reduced by the entirety anticipated cash Tax savings but when such actual and permanent cash Income Tax savings is recognized, the Parent Indemnified Party or Shareholder Indemnified Party, as applicable, shall promptly make a cash payment to the indemnifying party in an amount equal to such actual cash Income Tax savings.
(m) Notwithstanding anything to the contrary set forth in this Agreement, a Party’s indemnification obligations pursuant to Section 9.1 or Section 9.2 (for the purposes of determining the existence of any inaccuracy or breach of any representation and warranty and calculation of the Damages attributable to such inaccuracy or breach) shall be determined without giving effect to any qualification or exception with respect to “material,” “materiality,” “materially,” “Material Adverse Effect” or similar language with respect to materiality contained in any representation or warranty set forth in Article IV; provided, however, that such qualifications will not be disregarded with respect to Section 4.6(a) and (b) and the definition of “Material Contract”.
(n) Notwithstanding anything to the contrary set forth in this Agreement, in the case of a claim of Fraud perpetrated by any Shareholder (solely in its capacity as a Shareholder and not as a director, officer or employee of the Company and not in connection with the Company’s making of representations and warranties in this Agreement), such Shareholder shall be solely responsible for any Damages is covered arising therefrom. Any Fraud perpetrated by a Shareholder (solely in its capacity as a Shareholder and not as a director, officer or employee of the Company and not in connection with the Company’s making of reps and warranties in this Agreement) will not be imputed to any other Shareholder that did not commit the Fraud; provided that the foregoing shall not alleviate the indemnification obligations of the Shareholders to any Parent Indemnified Party for Fraud committed by (x) the Company or any of its Subsidiaries or (y) any other Shareholder, or if such Shareholder had knowledge of such Fraud committed by the Indemnification Insurance Policy Company or whether any of its Subsidiaries, as otherwise set forth in this Article IX.
(o) The waiver of any condition based upon the accuracy of any representation or warranty, or on the performance of or compliance or non-compliance with any covenant or obligation, will not affect the Indemnification Insurance Policy has expiredright to indemnification, been terminated compensation or lapsed; provided other remedy based upon such representations, warranties, covenants and obligations.
(p) Each Shareholder hereby agrees that (i) the Seller availability of indemnification of the Parent Indemnified Parties under this Article IX shall be directly liable determined without regard to any right to indemnification, advancement, contribution or reimbursement that such Shareholder may have from the Buyer Indemnified Persons for Company or any of its Subsidiaries (whether such Damages rights may arise from or pursuant to Section 7.2(a)(i) in excess applicable Law, Contract, the organizational documents of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”Company or any of its Subsidiaries or otherwise), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to this Agreement.
(b) Notwithstanding anything to the contrary herein, except for Damages resulting from Intentional Fraud, criminal activity or willful breaches of covenants, (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) Shareholder shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability of Buyer for all Damages under Section 7.2(b) shall not exceed the aggregate Purchase Price actually paid by the Buyer pursuant to this Agreement.
(c) The parties hereto expressly waive any claim to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once any indemnification, advancement, contribution or reimbursement from Parent, the Company or any Subsidiary of the Company, or any of their respective Affiliates for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer amounts for which Parent Indemnified Person shall Parties would be entitled to indemnification under this Agreement Article IX (idetermined without regard to any thresholds, deductibles, caps, survival periods or other limitations).
(q) Notwithstanding anything in respect of any Damages this Article IX to the extent contrary, if a claim may be characterized in multiple ways in accordance with this Article IX such that such claim may or may not be subject to different caps, time limitations and other limitations depending on such characterization, then an indemnified party shall have the right to characterize such claim in a manner that maximizes the recovery and time to assert claims permitted in accordance with this Article IX, and may assert the claim under multiple bases for recovery hereunder; provided, however, that the foregoing shall not be interpreted to allow double recovery for the same claim.
(r) Notwithstanding the foregoing, any Parent Indemnified Party seeking indemnification shall use its reasonable best efforts to pursue recovery under the R&W Policy, directors’ and officers’ tail policy or cyber tail policy, as applicable, with respect to Damages were taken into account in the calculation of the Final Closing Working Capitalfor which they may seek to be indemnified pursuant to this Article IX, Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter only to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterDamages are covered by such policies.
(fs) For purposes of determining (i) whether there has been Solely to the extent required by applicable Law, each indemnified party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any misrepresentation or breach of a representation or warranty and (ii) the amount Damages upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto. The reasonable costs and expenses of mitigation hereunder shall constitute indemnifiable Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregardedunder this Agreement.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Certain Limitations. (a) Except for claims arising from Intentional FraudNotwithstanding anything in this Agreement to the contrary, criminal activity neither party shall indemnify or willful breaches of covenants, any Damages for which the Seller shall otherwise be liable pursuant to Section 7.2(a)(i) shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller other party with respect to any such Damagesclaim for any breach of a representation or warranty, whether or not for the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by the Seller pursuant to 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 hereincontrary, but except for Damages resulting from Intentional Fraudas otherwise provided in this subsection (b) and Schedule 10.5, criminal activity or willful breaches Sellers shall not be liable to Buyer in respect of covenants, any indemnification hereunder except to the extent that (i) the aggregate liability amount of losses of Buyer exceeds One Million Dollars ($1,000,000) (the "Threshold Amount") (and then only to the extent such losses exceed the excess of Five Hundred Thousand Dollars ($500,000)) over an amount (not in excess of $100,000) which Sellers are not required to expend in environmental remediation as a result of the Seller for all Damages under Section 7.2(aEnvironmental Threshold Amount (such excess being the "Excess Amount") shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this Agreement, and (ii) the aggregate liability amount of losses of Buyer for all Damages under Section 7.2(bis less than the excess of Fifty Million Dollars) shall not exceed the aggregate Purchase Price actually paid ($50,000,000) over any amounts expended by the Buyer pursuant to Section 6.15, or with respect to which Buyer receives a proration in its favor under Section 6.15 (such excess being the "Indemnity Cap"); provided, the foregoing shall not be applicable to any amounts owed in connection with the Purchase Price or the proration adjustment thereof. In determining whether Sellers shall be obligated to indemnify Buyer under this AgreementSection 10, once the Threshold Amount has been satisfied, each representation and warranty and each covenant contained in this Agreement for which indemnity may be sought hereunder shall be read solely for purposes of determining whether a breach of such representation, warranty or covenant has occurred without regard to materiality (including Material Adverse Effect) qualifications that may be contained therein.
(c) The parties hereto expressly waive Notwithstanding any claim other provision of this Agreement to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, exceptthe contrary, in each case, (i) in the no event of diminution of value to the extent that such diminution of value is the probable and reasonably foreseeable result of the applicable breach of shall a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent for such Damages were taken into account in the calculation party's consequential or punitive damages, regardless of the Final Closing Working Capital, Company Indebtedness or Company Transaction Expenses, or (ii) theory of recovery. Each party hereto agrees to use reasonable efforts to mitigate any losses which form the basis for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterclaim for indemnification hereunder.
(f) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) the amount of any Damages resulting therefrom, all qualifications or exception in any representation or warranty relating to or referring to the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability of the Acquired Companies in any taxable period (or portion thereof) beginning after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Certain Limitations. The indemnification provided for in Section 9.02Section 9.03 and Section 9.04 shall be subject to the following limitations:
(a) Except for claims arising from Intentional Fraud, criminal activity or willful breaches The Indemnified Party shall take reasonable steps to mitigate any Loss to the extent required by Law.
(b) The maximum aggregate amount of covenants, any Damages all Losses for which the Seller Shareholders shall be liable pursuant to Section 7.2(a)(i) 9.02 shall be satisfied solely by recovery by Buyer under the Indemnification Insurance Policy and Buyer will have no recourse against the Seller with respect to any such Damages, whether or not the entirety of any such Damages is covered by the Indemnification Insurance Policy or whether or not the Indemnification Insurance Policy has expired, been terminated or lapsed; provided that (i) the Seller shall be directly liable to the Buyer Indemnified Persons for such Damages pursuant to Section 7.2(a)(i) in excess of the Indemnification Deductible up to an amount not to exceed $250,000 (the “Cap”), and (ii) the Seller shall have no liability for indemnification under Section 7.2(a)(i) unless and until the aggregate amount of such Damages exceeds $250,000 (the “Indemnification Deductible”); and provided further that in the case of any inaccuracy in or breach of any Company Fundamental Representation, the Seller shall be directly liable to the Buyer Indemnified Persons to the extent such Damages are not covered by the Indemnification Insurance Policy for any reason other than the lack of good faith efforts by the Buyer Indemnified Persons to seek recovery thereunder and comply with the terms and conditions thereof (including the deductible provided for therein, the coverage limit being exceeded or coverage being denied), up to an amount equal to the Purchase Price actually received by Total Consideration Cap, less the Seller pursuant aggregate amount of any Closing Merger Consideration or Earnout Consideration that has already been paid and/or delivered (in the case of Parent Merger Shares or Parent Earnout Shares) to this Agreementthe Equityholders and Pre-Closing Noteholders as of the applicable date.
(bc) Notwithstanding anything For the avoidance of doubt, none of the limitations set forth herein shall apply to any claim for fraud, intentional misrepresentation or willful misconduct.
(d) No Shareholder Indemnitee shall be entitled to recover indemnifiable Losses pursuant to Section 9.04(a) unless and until the total amount of all Losses that have been suffered or incurred by one or more of the Shareholder Indemnitees exceeds $500,000, after which, subject to the contrary hereinterms of this ARTICLE IX, except the Shareholder Indemnitees shall be entitled to recover for Damages resulting all indemnifiable Losses pursuant to Section 9.04(a) from Intentional Fraudthe first dollar of such Losses.
(e) The maximum aggregate amount of all Losses for which Parent, criminal activity Merger Sub or willful breaches the Surviving Corporation shall be liable herein shall not exceed the Total Consideration Cap; provided, that, in no event shall Parent be liable for any amounts under this Agreement in excess of covenants, the difference between (i) the aggregate liability of the Seller for all Damages under Section 7.2(a) shall not exceed the aggregate Purchase Price actually received by the Seller pursuant to this AgreementTotal Consideration Cap, and less (ii) the aggregate liability amount of Buyer for all Damages under Section 7.2(b) shall not exceed Closing Merger Consideration, Earnout Consideration and any indemnification payments or other Losses paid or payable by Parent, Merger Sub and the aggregate Purchase Price actually paid by Surviving Corporation as of the Buyer pursuant to this Agreementapplicable date.
(cf) With respect to each representation or warranty contained in this Agreement or in any certificate delivered pursuant hereto that is subject to a “materiality,” “material,” “Material Adverse Effect,” “Parent Material Adverse Effect,” “in all material respects” qualification, any such qualification shall be disregarded for calculating the amount of Losses subject to indemnification hereunder and for purposes of determining whether a breach of or inaccuracy in such representation or warranty has occurred. For purposes of clarity, nothing in this Section 9.05(f) is intended to alter any defined term herein.
(g) The parties hereto expressly waive Shareholders shall not be obligated to indemnify any claim Parent Indemnitee with respect to consequential, punitive or indirect, lost profits, diminution in value, special, exemplary or similar damages or any damages based on any type of multiple, except, in each case, (i) in the event of diminution of value Loss to the extent that the amount of such diminution of value is the probable Loss was reflected as a current liability or reserve or as Indebtedness or Transaction Expenses and reasonably foreseeable result of the applicable breach of a representation, warranty, covenant or agreement hereunder, (ii) to the extent actually recovered by a third party (including a Governmental Body) from an Indemnified Person, or (iii) in the event of Intentional Fraud, criminal activity or willful breaches of covenants.
(d) An Indemnified Person entitled to indemnification by an Indemnifying Person pursuant to this Article VII with respect to any claim or group of related claims shall only be entitled to recover once for such claim or group of related claims notwithstanding that such claim or group of related claims may constitute a breach of two or more representations and/or warranties set forth in this Agreement.
(e) No Buyer Indemnified Person shall be entitled to indemnification under this Agreement (i) in respect of any Damages to the extent such Damages were taken into account subtracted in the calculation of the Final Closing Working CapitalMerger Consideration or Net Adjustment Amount as finally determined pursuant to Section 2.11(b) and Section 2.11(f)(v), Company Indebtedness or Company Transaction Expenses, or (ii) for any Damages relating to any matter to the extent that there is included in the Interim Financial Statements a specific liability or reserve relating to such matterrespectively.
(fh) For purposes of determining (i) whether there has been any misrepresentation or breach of a representation or warranty and (ii) All indemnification payments payable hereunder shall be reduced by the amount of insurance proceeds under any Damages resulting therefrominsurance policy paid for by the Shareholders (after deducting related costs and expenses, all qualifications or exception including any deductible amount and any resultant increase in any representation or warranty relating to or referring to insurance premiums) actually received by the terms “material”, “materiality”, “Material Adverse Effect”, “in all material respects” or any similar qualification, term or phrase shall be disregarded.
(g) Seller makes no representations or warranties regarding the amount or availability of any net operating loss, capital loss, tax credit carryover or other Tax asset or liability Indemnified Party as a result of the Acquired Companies in any taxable period (or portion thereof) beginning after Losses for which the ClosingIndemnified Party is seeking indemnification.
Appears in 1 contract
Sources: Merger Agreement (OncoCyte Corp)