Limitations. (1) Notwithstanding any other provision of this Agreement: (a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and (b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement. (2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law. (3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company. (4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of: (a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim; (b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable; (c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement; (d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or (e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.
Appears in 2 contracts
Sources: Investor Rights and Governance Agreement (Polymet Mining Corp), Investor Rights and Governance Agreement (Polymet Mining Corp)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any Notwithstanding anything to the Fundamental Company Representations or any breach of any covenant contrary herein, (i) the aggregate liability of the Equityholders for Damages under Section 9.2(a)(i) shall not exceed the Escrow Funds, and (ii) the Equityholders shall not be liable under Section 9.2(a)(i) unless and until the aggregate Damages for which they would otherwise be liable under Section 9.2(a)(i) exceed $200,000 (at which point the Equityholders shall become liable for the aggregate Damages under Section 9.2(a)(i), and not just amounts in excess of $200,000; provided that the limitations set forth in this sentence shall not apply to (x) a claim pursuant to Section 9.2(a)(i) relating to a breach by the Company or the Equityholders of a Fundamental Representation, for which the aggregate liability of the Equityholders shall not exceed the aggregate consideration received by the Equityholders pursuant to this Agreement (the “Cap”), or (y) any claims based on fraud, which shall be wholly barred and unenforceable unless a written notice unlimited. Solely for purposes of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Companythis Article IX, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the all representations and warranties of the Company contained in this Agreement, Article II (other than 2.6, 2.7, 2.15(x) and 2.32) and of the Fundamental Company Representations, Equityholders in Article IX shall be wholly barred construed as if the term “material” and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee any reference to the “Company within 12 months of the date of this AgreementMaterial Adverse Effect” (and variations thereof) were omitted from such representations and warranties.
(2b) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior anything to the latest date permitted by Applicable Law.
contrary herein, (3) Notwithstanding any other provision of this Agreement: (ai) the Company aggregate liability of ▇▇▇▇.▇▇▇ for Damages under Section 9.2(b)(i) shall not exceed the Escrow Funds, and (ii) ▇▇▇▇.▇▇▇ shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (iiunder Section 9.2(b)(i) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability Damages for which it would otherwise be liable under Section 9.01 shall not 9.2(b)(i) exceed $[Redacted - Commercially sensitive information] 200,000 (at which point ▇▇▇▇.▇▇▇ shall become liable for the aggregate Damages under Section 9.2(b)(i), and not just amounts in the aggregateexcess of $200,000); provided that the foregoing limitations set forth in this sentence shall not apply in to (x) a claim pursuant to Section 9.2(b)(i) relating to a breach by ▇▇▇▇.▇▇▇ of a Fundamental Representation, for which the case aggregate liability of fraud by the Company▇▇▇▇.
(4) Notwithstanding anything to the contrary in this Agreement, the Company ▇▇▇ shall not be liable under this Agreement in respect of:
exceed the Cap, or (ay) any consequentialclaims based on fraud, specialwhich shall be unlimited. Solely for purposes of this Article IX, indirectall representations and warranties of ▇▇▇▇.▇▇▇ in Article III (other than 3.4, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
3.6, 3.7 and 3.18) shall be construed as if the term “material” and any reference to “▇▇▇▇.▇▇▇ Material Adverse Effect” (band variations thereof) any Loss were omitted from such representations and warranties, which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;shall be unlimited.
(c) any Loss Except with respect to claims based on fraud, after the extent that such Loss arises as a result Closing, the rights of a failure by Glencore to comply with any of its obligations the Indemnified Parties under this Article IX and the Escrow Agreement shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Care.com Inc), Equity Purchase Agreement (Care.com Inc)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) Except as otherwise set forth herein, the aggregate Liability of the Indemnifying Securityholders for Damages under Section 6.2(a) shall not exceed the Escrow Fund; provided that the limitation set forth in this Section 6.4(a) shall not apply to (i) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any claim pursuant to Section 6.2(a) relating to a breach of any covenant the representations and warranties set forth in Section 2.1 (Organization, Qualification and Corporate Power), Section 2.2 (Capitalization), Section 2.3 (Authorization of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 Transaction) or Section 9.04 is delivered by 2.30 (Broker’s Fees) (collectively, the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein“Excepted Representations”); and.
(b) Except as otherwise set forth herein, no Indemnifying Securityholder shall be obligated to indemnify the Indemnified Parties for Damages under Section 6.2(a) unless and until the total amount of such Damages exceeds Fifty Thousand Dollars ($50,000) (the “Threshold”), at which point the Indemnifying Securityholders shall be obligated to indemnify the Indemnified Parties for all Damages in excess of the Threshold; provided that the limitations set forth in this Section 6.4(b) shall not apply to any Claim arising out claim pursuant to Section 6.2(a) relating to a breach of the Excepted Representations. Subsequent to determining the existence of a breach of any representation or warranty, solely for purposes of calculating the amount of Damages pursuant to this Article VI (and not for purposes for determining whether a breach or inaccuracy of any of the has occurred), all representations and warranties of the Company contained set forth in this AgreementArticle II shall be construed as if the terms “material” or “in all material respects” and any reference to “Company Material Adverse Effect” (and variations thereof) were omitted.
(c) Any payments required to be made to an Indemnified Party pursuant to claims for indemnification hereunder with respect to Excepted Representations shall be made first by resort to the Escrow Fund, other than and second, if the Fundamental Company balance of the Escrow Fund is insufficient to satisfy the entire amount of payments to be made to an Indemnified Party in respect of such Excepted Representations, shall be wholly barred by seeking recourse to each Indemnifying Securityholder, severally and unenforceable unless a written notice of claim not jointly in accordance with Section 9.03 or Section 9.04 is delivered each Indemnifying Securityholder’s Pro Rata Portion.
(d) All Damages recovered by the Glencore Indemnitee Indemnified Parties from the Escrow Fund shall be allocated among the Indemnifying Securityholders in accordance with their Pro Rata Portion of the Escrow Fund. Notwithstanding anything to the Company within 12 months contrary herein, except for claims for intentional misrepresentation, willful misconduct or fraud, no Indemnifying Securityholder shall be liable for more than the aggregate amount of Merger Consideration to be paid to such Indemnifying Securityholder (assuming the date full amount of Merger Consideration (including all amounts held in the Escrow Fund) is actually paid to such Indemnifying Securityholder) pursuant to this Agreement.
(2e) Notwithstanding Section 9.02(1)No Indemnifying Securityholder shall have any right of contribution against the Company or the Surviving Corporation with respect to any breach of any of the Company’s representations, any Claim arising out of warranties, covenants or agreements.
(f) After the Closing, except with respect to (i) any breach or inaccuracy nonperformance of or noncompliance with any representation covenant, agreement or warranty other obligation contained (A) in respect of which indemnity may be sought this Agreement that was caused as a result of fraud may be brought at any time occurs or occurred on or prior to the latest date permitted Closing or (B) in Article VI, (ii) any claim or liability based on, related to or arising out of, or in connection with fraud, willful misconduct or intentional misrepresentation or (iii) the equitable remedies set forth in Section 9.13, the rights of the Indemnified Parties under this Article VI and the Escrow Agreement (as limited by Applicable Lawthe provisions of this Article VI) shall be the sole and exclusive remedy of the Indemnified Parties; provided, however nothing herein shall be construed to limit the remedies available to, or the amount of Damages recoverable by, the Buyer for breach of any of the Ancillary Agreements by any of the parties thereto other than the Company or, solely in their capacity as Company Stockholders or holders of Options or Warrants, the Indemnifying Securityholders.
(3g) Notwithstanding anything in this Agreement to the contrary, no Indemnifying Party shall have any other provision indemnification obligations under this Article VI, or shall otherwise liable, for the fraud or intentional misrepresentation of this Agreement: another Indemnifying Party of which such Indemnifying Party did not have, or should not have had, knowledge.
(ah) the Company shall not be liable to any Glencore Indemnitee in respect The amount of any breach of any representation or warranty of Damages payable by the Company in Indemnifying Securityholders pursuant to this Agreement: (i) for any individual claim (or series of related claims) for Losses unless Article VI shall be reduced by the amount of Losses any insurance proceeds actually received by the Indemnified Party with respect to the Damages (net of any insurance premium increases or other costs incurred by the Indemnified Party in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregateinsurance proceeds); provided that nothing set forth in this Section 6.4(h) shall require the foregoing limitations shall not apply in the case of fraud by the CompanyIndemnified Party to make an insurance claim with respect to such Damages.
(4i) Notwithstanding anything to the contrary herein, (i) an Indemnified Party may not assert multiple claims under Section 6.2 in this Agreement, the Company shall not be liable under this Agreement order to recover duplicative Damages in respect of:
of a single set of facts or circumstances and (aii) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that an amount has been accurately and completely reflected in the calculation of Adjusted Working Capital or accurately and completely included in the Company Holder Transaction Expenses, such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsamount shall not also be the basis for an indemnification claim hereunder.
Appears in 2 contracts
Sources: Agreement and Plan of Merger, Merger Agreement (Red Hat Inc)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any If the Fundamental Company Representations or any breach of any covenant of the Company Closing occurs, Seller shall be wholly barred and unenforceable unless a written notice of claim in accordance with have no liability under Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i13.2(a) for any individual claim Damage that does not exceed $200,000 (or series of related claimsand such Damage shall not be applied towards the Indemnity Deductible) for Losses unless the amount of Losses in respect of such claim (or series of related claimsand Seller shall have no liability under Section 13.2(a) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses otherwise indemnifiable Damages thereunder exceeds $[Redacted - Commercially sensitive information] a deductible (not a threshold) of 3% of the Base Purchase Price (the “Indemnity Deductible”), and then Seller shall be liable for only to the extent amount by which the total of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that Damages exceeds such deductible. Notwithstanding the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding and anything to the contrary in this the Agreement, the Company limitations set forth above shall not be liable apply to Damages under this Agreement Section 13.2(a) that arise from or as a result of, or are directly or indirectly connected with an inaccuracy in, or a breach of, the representations and warranties contained in respect of:
Section 3.1 (aTitle to Interests), Section 3.2 (Organization and Standing), Section 3.3 (Power and Authority), Section 3.4 (Valid and Binding Agreement), Section 3.8 (Accredited Investor; Investment Intent), Section 4.1 (Organization and Standing), Section 4.2 (Governing Documents), Section 4.3 (Capital Structure), Section 4.4 (Power and Authority), Section 4.5 (Valid and Binding Agreement) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;and Section 4.29 (Special Warranty) (the “Seller Fundamental Representations”).
(b) If the Closing occurs, the maximum aggregate amount of Damages that may be recovered from Seller under Section 13.2(a) shall not exceed the value of the Indemnity Escrowed Shares. Notwithstanding the foregoing and anything to the contrary in the Agreement, (i) the cap limitation set forth above shall not apply to Damages under Section 13.2(a) that arise from or as a result of, or are connected with an inaccuracy in, or a breach of, the Seller Fundamental Representations; (ii) in no event shall Seller’s liability under this Agreement exceed the consideration received by Seller at the Closing, and (iii) in no event shall any Loss which is contingent unless Damages arising from any breach of Section 4.29 with respect to any Oil and until Gas Property (when aggregated with any Defect Amount attributable to any Title Defect asserted under Article VIII with respect to such contingent Loss becomes an actual Loss that is due Oil and payable;Gas Property) exceed the Allocated Value of such Oil and Gas Property.
(c) any Loss If the Closing occurs, Buyer shall have no liability under Section 13.1(a) until the aggregate amount of otherwise indemnifiable Damages thereunder exceeds a deductible (not a threshold) of 3% of the Base Purchase Price, and then Buyer shall be liable for only the amount by which the total of such Damages exceeds such deductible. Notwithstanding the foregoing and anything to the extent contrary in the Agreement, the deductible limitation set forth above shall not apply to Damages under Section 13.1(a) that such Loss arises arise from or as a result of, or are directly or indirectly connected with an inaccuracy in, or a breach of, the representations and warranties contained in Section 6.1 (Organization and Standing), Section 6.2 (Power and Authority), Section 6.3 (Valid and Binding Agreement), Section 6.10 (Accredited Investor; Investment Intent), Section 6.12 (Issuance of a failure by Glencore to comply with any of its obligations under this Agreement;Parent Shares), Section 6.13 (Capitalization), Section 6.15 (No Registration), Section 6.17 (NYSE Listing), Section 6.18 (S-3 Eligibility) and Section 6.21 (Registration Rights) (the “Buyer Fundamental Representations”).
(d) any changes If the Closing occurs, the maximum aggregate amount of Damages that may be recovered from Buyer under Section 13.1(a) shall not exceed the 3% of the Base Purchase Price. Notwithstanding the foregoing and anything to the contrary in Applicable Law the Agreement, the cap limitation set forth above shall not apply to Damages under Section 13.1(a) that arise directly or changes in generally accepted interpretation indirectly from or application of Applicable Law; oras a result of, or are directly or indirectly connected with an inaccuracy in, or a breach of, the Buyer Fundamental Representations.
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsTHE LIMITATIONS ON LIABILITY IN SECTION 13.3 OR SECTION 13.4 SHALL APPLY TO THE APPLICABLE LIABILITY EVEN IF SUCH LIABILITY IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER SOLE, JOINT OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF THE PARTY WHOSE LIABILITY IS SO LIMITED.
Appears in 2 contracts
Sources: Membership Interest Purchase and Sale Agreement (RSP Permian, Inc.), Membership Interest Purchase and Sale Agreement (RSP Permian, Inc.)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) Notwithstanding anything to the contrary contained herein, no Buyer Indemnified Party or Seller Indemnified Party, as applicable, shall be entitled to be indemnified pursuant to Section 6.1(a)(i) and Section 6.2(a)(i):
(i) unless and until the aggregate of all Losses for which the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, would, but for this paragraph (i), be entitled to indemnification hereunder exceeds on a cumulative basis $750,000 (the “Indemnity Threshold”), at which point each Buyer Indemnified Party or Seller Indemnified Party, as applicable, shall be entitled to be indemnified for the aggregate of all Losses in excess of the Indemnity Threshold; and
(ii) unless the amount of an individual claim for Losses under Section 6.1(a)(i) or Section 6.2(a)(i) (aggregating all claims and Losses arising from substantially the same or similar facts as applicable to each of Section 6.1(a)(i) or Section 6.2(a)(i)), as applicable, exceeds $25,000, and no such claim shall be applied toward the Indemnity Threshold; provided, however, that the foregoing provisions of this Section 6.3(a) shall not apply with respect to any Claim arising out act of any breach intentional fraud or inaccuracy of any the Fundamental Company Representations or (i) any breach of or inaccuracy in the representations and warranties set forth in Sections 3.1, 3.2(a), 3.4(a), 3.5(a), 3.9 or 3.13 (the “Specified Representations”) or (ii) any covenant breach of the Company shall be wholly barred representations and unenforceable unless a written notice of claim warranties set forth in accordance with Section 9.03 Sections 4.1, 4.2(a) or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law 4.5.
(or b) Other than in the case of any act of intentional fraud (where the covenants of Buyer Indemnified Parties’ and the CompanySeller Indemnified Parties’ rights shall not be limited by anything set forth in this Article VI to the contrary), such shorter period expressly specified therein); and
in no event shall the aggregate amount for which Buyer Indemnified Parties or Seller Indemnified Parties, as applicable, shall be indemnified and held harmless under Section 6.1(a)(i) and Section 6.2(a)(i): (bi) any Claim arising out of any breach with respect to breaches or inaccuracy inaccuracies of any of the representations and warranties of the Company contained in this Agreement, (A) Seller other than the Fundamental Company RepresentationsSpecified Representations or (B) Buyer other than those set forth in Sections 4.1, shall be wholly barred and unenforceable unless a written notice of claim 4.2(a) or 4.5, in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1)either case, any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds exceed $[Redacted - Commercially sensitive information]; 3,750,000, and (ii) unless and until with respect to breaches or inaccuracies of any of (A) the aggregate Specified Representations or (B) the representations set forth in Sections 4.1, 4.2(a) or 4.5, in either case, exceed the Purchase Price (the “Cap”).
(c) The amount of all any Losses exceeds $[Redacted - Commercially sensitive information] and then only payable pursuant to this Article VI shall be reduced to reflect any amount actually recovered by the Indemnified Party from a Third Party (less the cost to collect or recover such amount). If the Indemnified Party realizes any such amount after the date on which a payment pursuant to this Article VI has been made to the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party equal to such amount; provided that such payment shall not exceed the amount of the payment made to the Indemnified Party pursuant to this Article VI. For the avoidance of doubt, this Section 6.3(c) shall not be construed to apply to any amounts recovered from any self insurance, captive insurance vehicle, or other similar arrangement.
(d) Notwithstanding anything in this Agreement to the contrary, neither Buyer nor Seller shall be liable for any special, indirect, punitive, exemplary or consequential damages, except (i) to the extent of such excess; and actually awarded in a Third Party Claim or (bii) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreementforegoing damages other than punitive damages, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsdamages are reasonably foreseeable.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Cerecor Inc.)
Limitations. (1i) Notwithstanding any other provision anything else contained herein to the contrary, the Shareholders' obligation to indemnify Purchaser pursuant to Section 8.2(a) shall be Purchaser's sole and exclusive remedy for breaches of all matters (including breaches of representations and warranties) relating to this Agreement:Agreement and shall be limited in amount as set forth below.
(aii) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee Subject to the Company on or prior exceptions in Section 8.2(b)(vii), Purchaser shall not be entitled to the latest date permitted by applicable law indemnification for any Damages pursuant to Section 8.2(a) hereof unless (or x) in the case of an individual claim, the covenants Damages relating to such claim exceed Twenty-Five Thousand Dollars ($25,000) (for these purposes, the parties acknowledge and agree that any claim for Damages arising from a single event or series of related circumstances or transactions shall be deemed to be an individual claim) and (y) the cumulative total of Damages for all claims asserted pursuant to Section 8.2(a) exceeds One Million Dollars ($1,000,000) in the aggregate; and in such case the amount of Damages that may be recovered shall only be the amount that such Damages exceed One Million Dollars ($1,000,000); provided, however, that such cumulative indemnification threshold shall not be applicable to (A) breaches of the Company, such shorter period expressly specified thereinrepresentations or warranties set forth in Section 3.18 (Employees; Employee Benefit Plans) and Section 3.21 (Taxes) and (B) any of the matters listed in Schedule 8.2(b)(ii); and.
(biii) any Claim arising out of any breach or inaccuracy of any Subject to the exceptions in Section 8.2(b)(vii), subject to the separate individual limitations applicable to each Shareholder as set forth below, and subject to the several and not joint nature of the representations and warranties of the Company each Shareholder contained in this AgreementArticle 2 hereof, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of Damages recoverable from all Losses exceeds Shareholders shall be Twenty Million Dollars ($[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company20,000,000).
(4iv) Notwithstanding anything With respect to the contrary amount of Damages that may be recovered against a Shareholder with respect to each indemnification claim, (1) the amount of each such claim against a Shareholder shall be limited to the total amount of such Damages of such claim multiplied by a fraction equal to the amount of the Purchase Price less the amount of the Fund Indebtedness that is distributed to the Shareholder for the Shares and Option Equivalent Stock owned by such Shareholder divided by the total aggregate Purchase Price less the amount of the Fund Indebtedness distributed to all Shareholders for the Shares and Option Equivalent Stock and (2), subject to the exceptions in this AgreementSection 8.2(b)(vii), the Company total aggregate liability of each Shareholder for all indemnification claims shall not be liable limited to Twenty Million Dollars ($20,000,000) multiplied by the same fraction (such percentage and the maximum indemnification liability of each Shareholder shall be set forth on the Closing Statement);.
(v) The amount payable by the Shareholders with respect to any Damages for which they have an indemnification obligation under this Agreement in Section 8.2 shall be reduced by the amount of any insurance proceeds received by Purchaser Indemnified Parties. Purchaser, Executive and each of its Subsidiaries shall fully pursue all potential claims against applicable policies with respect of:
(a) to Damages before recovering any consequential, special, indirect, multiple-of-profit portion of such Damages from the Escrow Funds or punitive damages or Losses in connection with a Direct Claimthe Shareholders;
(bvi) Any Damages shall be calculated and determined net of any tax benefit to the Purchaser or Executive resulting from the indemnifiable event or matter; and
(vii) Notwithstanding the foregoing, the Shareholders shall be liable for all Damages incurred by the Purchaser Indemnified Parties arising from: (A) breaches of the representations or warranties set forth in Section 2.2 (Title to Stock), but only on several and not joint basis, Section 3.5 (Capitalization) and Section 3.21 (Taxes), and (B) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss claims based on fraud, willful misconduct or intentional misrepresentation without regard to the extent cumulative indemnification threshold set forth in clause (y) of Section 8.2(b)(ii), or the aggregate limitation on indemnification set forth in Section 8.2(b)(iii); provided, however, that, in any such case, the total amount of Damages for which a Shareholder shall be liable shall be the amount of the Purchase Price distributed to the Shareholder for the Shares and Option Equivalent Stock owned by such Shareholder, and provided, further, however that the provisions of 44 Subsection (1) of Section 8.2(b)(iv) shall still be applicable in each such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardscase.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Macquarie Infrastructure Assets LLC), Stock Purchase Agreement (Macquarie Infrastructure CO Trust)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company no amounts of indemnity shall not be liable under this Agreement in respect ofpayable as a result of any claim arising under:
(ai) Section 5.02(a), Section 5.02(b)(i), or Section 5.02(b)(iii) unless and until Losses claimed thereunder, when aggregated, are in excess of an amount equal to one percent (1%) of the Aggregate Indemnity Cap (the "Basket Amount"), in which case the REIT Indemnified Parties may recover the aggregate amount of all Losses payable; and
(ii) Section 5.02(a), Section 5.02(b)(i), or Section 5.02(b)(iii) in excess of an amount equal to twenty-five percent (25%) of the Aggregate Indemnity Cap (aggregating all indemnity payments by all Contributors under Section 5.02(a), Section 5.02(b)(i), and Section 5.02(b)(iii)); provided, that the aggregate indemnity payments by all Contributors under Section 5.02(a) and Section 5.02(b) shall not exceed the Aggregate Indemnity Cap, and provided, further, that the aggregate indemnity payments by an individual Contributor under Section 5.02(a) shall not exceed such Contributor's Pro Rata Share of the Aggregate Indemnity Cap; and provided, further, none of the limitations set forth in this Section 5.05(a) shall be applicable with respect to, (i) any consequentialfraud or intentional misrepresentation, special, indirect, multiple-of-profit (ii) any breach of any Contributor Fundamental Representations or punitive damages or Losses in connection with a Direct Claim;(iii) any breach of any Manager Fundamental Representations.
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss Notwithstanding anything to the extent that such Loss arises contrary in this Agreement, no amounts of indemnity shall be payable as a result of a failure any claim arising under:
(i) Section 5.03(a) unless and until Losses claimed thereunder, when aggregated, are in excess of the Basket Amount, in which case the Contributor Indemnified Parties may recover the aggregate amount of all Losses; and
(ii) Section 5.03 in excess of an amount equal to twenty-five (25%) of the Aggregate Indemnity Cap (aggregating all indemnity payments by Glencore to comply the REIT under Section 5.03). provided, that none of the limitations set forth in this Section 5.05(b) shall be applicable with respect to, (i) any fraud or intentional misrepresentation, or (ii) any breach of any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsthe REIT Fundamental Representations.
Appears in 2 contracts
Sources: Contribution Agreement (CorEnergy Infrastructure Trust, Inc.), Contribution Agreement (CorEnergy Infrastructure Trust, Inc.)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect ofSection 9.2 above:
(a) with respect to any consequentialLoss arising out of or resulting from Sections 9.2(a)(i), special9.2(a)(vii) or 9.2(b)(i), indirectother than any Loss arising out of or resulting from a breach of any of the Fundamental Representations and Warranties, multiple-of-profit or punitive damages or no indemnification shall be payable for such Losses in connection unless the total amount of all Losses incurred by Parent Indemnified Parties with a Direct Claimrespect thereto exceeds One Million Nine Hundred Fifty Thousand Dollars ($1,950,000) (the “Basket”), whereupon indemnification shall be payable for all indemnifiable Losses from the first dollar without regard to the Basket;
(b) with respect to any Loss which is contingent unless arising out of or resulting from Sections 9.2(a)(i), 9.2(a)(vii) or 9.2(b)(i), other than any Loss arising out of or resulting from a breach of any of the Fundamental Representations and until such contingent Loss becomes an actual Loss that is due Warranties, the aggregate indemnification liability of the Executing Stockholders, the Executing Option Holders and payableNon-Owner Participants shall be limited to Losses incurred or suffered, in the aggregate, up to Fifteen Million Dollars ($15,000,000) (the “Indemnification Cap”);
(c) with respect to any Loss arising out of or resulting from Sections 9.2(a)(viii), the aggregate indemnification liability of the Executing Stockholders, the Executing Option Holders and Non-Owner Participants shall be limited to Losses incurred or suffered, in the aggregate, up to the extent that such Identified Matters Escrow Amount plus the then-remaining balance of the Indemnification Cap;
(d) with respect to any Loss arises arising out of or resulting from (i) Sections 2.7(b), 9.2(a) or 9.2(b) (other than Sections 9.2(a)(i), 9.2(a)(vii), 9.2(a)(viii) and 9.2(b)(i), which liability shall be limited as a result provided in Section 9.3(b) or Section 9.3(c), as applicable) or (ii) any breach or misrepresentation of a failure by Glencore to comply with any of its obligations under the Fundamental Representations and Warranties, the liability of each Executing Stockholder, Executing Option Holder or Non-Owner Participant shall be limited to Losses incurred or suffered up to the net cash proceeds paid to such Executing Stockholder, Executing Option Holder or Non-Owner Participant pursuant to Article II of this Agreement;
(de) nothing in this Agreement shall limit the rights, remedies or claims of Parent with respect to any fraud by any Executing Stockholder, Executing Option Holder or Non-Owner Participant or, prior to the Closing, the Company in connection with this Agreement or the transactions contemplated hereby;
(f) any changes in Applicable Law amounts owed by the Executing Stockholders, Executing Option Holders or changes in generally accepted interpretation Non-Owner Participants to a Parent Indemnified Party and arising out of or application resulting from Section 9.2(a)(vii) of Applicable Law; orthis Agreement shall be first offset against the Documentation Escrow Amount to the extent available, and once the Documentation Escrow Amount is completely depleted, the aggregate remaining Losses payable to a Parent Indemnified Party pursuant to Section 9.2(a)(vii) shall be limited to the then-remaining balance of the Indemnification Escrow Amount;
(eg) any changes amounts owed by the Executing Stockholders, Executing Option Holders or Non-Owner Participants to a Parent Indemnified Party and arising out of or resulting from Section 9.2(a)(viii) of this Agreement shall be first offset against the Identified Matters Escrow Amount to the extent available, and once the Identified Matters Escrow Amount is completely depleted, the aggregate remaining Losses payable to a Parent Indemnified Party pursuant to Section 9.2(a)(viii) shall be limited to the then-remaining balance of the Indemnification Escrow Amount;
(h) any amounts owed by the Executing Stockholders, the Executing Option Holders and Non-Owner Participants to a Parent Indemnified Party and arising out of or resulting from Section 9.2(a) (other than Section 9.2(a)(vii) or Section 9.2(a)(viii), which are addressed in Applicable Accounting Standards Section 9.3(f) and Section 9.3(g) above, respectively) or generally accepted interpretation Section 9.2(b)(i) of this Agreement shall be first offset against the Indemnification Escrow Amount to the extent available in accordance with the terms and conditions of the Escrow Agreement prior to the Executing Stockholders’, the Executing Option Holders’ and Non-Owner Participants’ obligation to otherwise indemnify and hold harmless any Parent Indemnified Party therefor; and
(i) notwithstanding anything herein to the contrary, to the extent any amounts which a Parent Indemnified Party would otherwise be entitled to indemnification hereunder are reflected as current liabilities or application Tax Liabilities on the Final Closing Balance Sheet or as reductions in the calculation of Applicable Accounting Standardsthe Merger Consideration, then such amounts shall not be considered Losses subject to indemnification hereunder.
Appears in 2 contracts
Sources: Agreement and Plan of Merger, Agreement and Plan of Merger (Kindred Healthcare, Inc)
Limitations. (1a) Notwithstanding No amounts of indemnity shall be payable as a result of any other provision of this Agreementclaim arising under:
(ai) clause (i) of Section 5.02 unless and until the REIT Indemnified Parties have paid, suffered or incurred Losses referred to in that clause in excess of $2,000,000 (the “Basket Amount”) in the aggregate, in which case the REIT Indemnified Parties may bring a claim for the aggregate amount of all Losses, regardless of the Basket Amount; provided no REIT Indemnified Parties shall assert any Claim arising out claim under clause (i) of Section 5.02 in respect of any breach Loss or inaccuracy series of related Losses, unless such Loss or series of related Losses exceeds $100,000 (the “Per Claim Threshold”) and any such Losses that do not exceed the Fundamental Company Representations Per Claim Threshold shall not be aggregated for purposes of this clause (a)(i);
(ii) clauses (i) or any breach (iii) of any covenant of the Company Section 5.02, and no REIT Indemnified Parties shall be wholly barred and unenforceable unless a written notice entitled to indemnification under clauses (i) or (iii) of claim Section 5.02, in accordance with Section 9.03 or Section 9.04 is delivered excess of $22,050,000 (the “Indemnity Amount”) (aggregating all indemnity payments by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law Contributor under clauses (or in the case i) and (iii) of the covenants of the Company, such shorter period expressly specified thereinSection 5.02); and
(iii) clause (ii) of Section 5.02, and no REIT Indemnified Parties shall be entitled to indemnification under clause (ii) of Section 5.02, in excess of $40,000,000 (aggregating all indemnity payments by the Contributor under clause(ii) of Section 5.02); provided, the aggregate indemnity payments by the Contributor under clauses (i), (ii) and (iii) of Section 5.02 shall not exceed $40,000,000; and provided further none of the limitations set forth in this Section 5.04(a) shall be applicable with respect to fraud or intentional misrepresentation or representations set forth in any of the Contributor Fundamental Representations or the Manager Fundamental Representations.
(b) No amounts of indemnity shall be payable as a result of any claim arising under:
(i) clause (i) of Section 5.03 unless and until the Contributor Indemnified Parties have paid, suffered or incurred Losses referred to in that clause in excess of the Basket Amount in the aggregate, in which case the Contributor Indemnified Parties may bring a claim for the aggregate amount of all Losses, regardless of the Basket Amount; provided no Contributor Indemnified Parties shall assert any claim under clause (i) of Section 5.03 in respect of any Loss or series of related Losses, unless such Loss or series of related Losses exceeds the Per Claim Threshold and any such Losses that do not exceed the Per Claim Threshold shall not be aggregated for purposes of this clause (b)(i);
(ii) clause (i) of Section 5.03, and no Contributor Indemnified Parties shall be entitled to indemnification under clause (i) of Section 5.03, in excess of the Indemnity Amount (aggregating all indemnity payments by the REIT under clause (i) of Section 5.03); and
(iii) clause (i) of Section 5.03, and no Contributor Indemnified Parties shall be entitled to indemnification under clause (i) of Section 5.03, for any Losses based on or arising out of any breach inaccuracy in or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty made by the REIT or the OP in Section 3.03 of this Agreement or in any of the Company Transaction Documents if the Manager or the Contributor had Knowledge of such inaccuracy or breach prior to the Closing; provided, that none of the limitations set forth in this Agreement: (iSection 5.04(b) for any individual claim (shall be applicable with respect to fraud or series of related claims) for Losses unless the amount of Losses intentional misrepresentation or representations set forth in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsthe REIT Fundamental Representations.
Appears in 2 contracts
Sources: Contribution Agreement, Contribution Agreement (Starwood Waypoint Residential Trust)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the The Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Purchaser Indemnified Parties for any Losses pursuant to Section 7.2(a) (other than with respect to any Loss arising out of the Fundamental Representations and those representations and warranties set forth in Schedule B15 (Tax Matters)), including references thereto in the certificate contemplated by Section 4.3(d), unless the aggregate of all Losses therefrom for which the Company would otherwise be liable exceeds an amount equal to $17,821,000 (the “Deductible”), and then only for Losses in this Agreement: excess of the Deductible.
(ib) The Company shall not be liable to any of the Purchaser Indemnified Parties pursuant to Section 7.2(a) for any individual claim Loss (or series of related claims) for Losses arising from a common set of facts), unless the amount of Losses in respect of such claim individual Loss (or series of related claimsLosses arising from a common set of facts) exceeds $[Redacted - Commercially sensitive information]; 250,000 (the “Mini-Basket”), and any such individual Losses (iior series of related Losses arising from a common set of facts) unless and until not in excess of the aggregate amount Mini-Basket will not be aggregated for purposes of all calculating the Deductible in Section 7.4(a). For the avoidance of doubt, for purposes of this Section 7.4(b), with respect to Tax matters, two or more Losses exceeds $[Redacted - Commercially sensitive information] and then only will be considered a series of related Losses arising from a common set of facts to the extent such Losses relate to the same underlying Tax matter or Tax reporting position, regardless of whether such excess; and Losses arise or are assessed (bx) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] with respect to more than one taxable period, (y) in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Companymore than one jurisdiction, or (z) with respect to or against more than one taxpayer.
(4c) In no event shall the Company’s aggregate obligation or liability to any of the Purchaser Indemnified Parties for Losses with respect to the matters contained in Section 7.2(a) (other than with respect to any Loss arising out of the Fundamental Representations and those representations and warranties set forth in Schedule B15 (Tax Matters)) exceed $213,848,000 (the “Cap”). No Party shall have any obligation or liability to any other Person under this Article 7 in excess of the Securities Purchase Price.
(d) Notwithstanding anything to the contrary set forth in this Agreement, no Purchaser Indemnified Party or Company Indemnified Party (each, an “Indemnified Party”) shall be entitled to indemnification, payment or reimbursement under any provision of this Agreement for any amount to the extent such Person has been indemnified, paid or reimbursed for such amount under any other provision of this Agreement or under any other agreement, arrangement or understanding.
(e) Notwithstanding anything to the contrary set forth in this Agreement, the Company shall not have any obligation or be liable under for any Losses to the extent such Losses primarily arise out of any voluntary act, omission, transaction or arrangement carried out by or on behalf of Purchaser, Parent, any of their respective Subsidiaries or any of its or their respective Representatives (other than as expressly required by this Agreement Agreement); provided that, with respect to any Loss arising out of any inaccuracy in respect of:or breach of the representations and warranties set forth in Schedule B15 (Tax Matters), this Section 7.4(e) shall apply only to the extent that, at the time of such voluntary act, omission, transaction or arrangement that gave rise to such Loss, Purchaser or Parent had actual knowledge of such inaccuracy or breach or such inaccuracy or breach would have been reasonably expected.
(af) The Company shall not be liable to any consequentialof the Purchaser Indemnified Parties pursuant to Section 7.2(a) for any Taxes arising out of those representations and warranties set forth in Schedule B15 (Tax Matters) (other than those representations set forth in Schedule B15(c), specialthe first sentence of Schedule B15(d), indirectthe second clause of the third sentence of B15(d) (beginning with “. . . no such Tax exemption . . .”) and Schedules B15(e), multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(bB15(f) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(cB15(g)) any Loss except to the extent that such Loss arises Taxes are allocable to a Pre-Closing Tax Period. For purposes of determining the amount of Taxes allocable to any Pre-Closing Tax Period, the Straddle Period shall be considered to consist of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date, and items of income, gain, deduction, loss or credit of the Company for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of the Company were closed at the close of the Closing Date; provided, however, that exemptions, allowances or deductions that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a result of a failure by Glencore to comply with any of its obligations under this Agreement;daily basis.
(dg) Each Indemnified Party shall use its reasonable best efforts to mitigate its respective Losses upon and after becoming aware of any changes event or condition that would reasonably be expected to give rise to any Losses that are indemnifiable hereunder. In the event an Indemnified Party fails to so mitigate an indemnifiable Loss, the Indemnifying Party shall have no obligation or liability for any portion of such Loss that reasonably could have been avoided had the Indemnified Party made such efforts. Without limiting the generality of the foregoing, after an Indemnified Party acquires knowledge of any fact or circumstance that results in Applicable Law or changes reasonably would be expected to result in generally accepted interpretation an indemnified Loss or application a Third-Party Claim for which the Indemnifying Party may have an obligation or liability to such Indemnified Party, such Indemnified Party shall notify the Indemnifying Party promptly and shall implement such reasonable actions as the Indemnifying Party shall request in writing for the purposes of Applicable Law; or
mitigating the possible Losses arising therefrom. Notwithstanding the foregoing, this Section 7.4(f) shall not apply with respect to any Losses arising out of any inaccuracy in or breach of any representations and warranties set forth in Schedule B15 (e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsTax Matters).
Appears in 2 contracts
Sources: Subscription Agreement (Cronos Group Inc.), Subscription Agreement (Altria Group, Inc.)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim Except as set forth in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law paragraph (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1c), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company no event shall not Seller be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (iipursuant to Section 6.2(a) unless and until the aggregate amount of all such Losses exceeds $[Redacted - Commercially sensitive information] 25,000, in which case the Seller shall be liable for all such Losses (from the “first dollar” and then not only in excess of $25,000), subject to paragraph (c). Notwithstanding Section 6.2(a), except as set forth in paragraph (c), Seller will not be required to indemnify Buyer for Losses pursuant to Section 6.2(a) that exceed a maximum aggregate liability equal to the extent amount of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the CompanyPurchase Price.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) Except as set forth in paragraph (c), in no event shall Buyer be liable for any Loss which is contingent Losses pursuant to Section 6.2(b) unless and until the aggregate amount of all such contingent Loss becomes an actual Loss Losses exceeds $25,000, in which case the Seller shall be liable for all such Losses (from the “first dollar” and not only in excess of $25,000), subject to paragraph (c). Notwithstanding Section 6.2(b), except as set forth in paragraph (c), Buyer will not be required to indemnify Seller for Losses pursuant to Section 6.2(b) that is due and payable;exceed a maximum aggregate liability equal to the amount of the Purchase Price.
(c) any Loss The limitations contained in paragraphs (a) shall not apply to (i) product liability claims arising specifically out of use of units of Product sold by Seller prior to the extent that Closing Date, or (ii) the Excluded Liabilities. The limitations contained in paragraph (b) shall not apply to (i) the payment of the Milestone Payment if and when due, (ii) the obligations of Buyer for any payments to Seller pursuant to Sections 5.2 and 5.3, (iii) the Assumed Liabilities or (iv) Section 6.2(b)(i)(E).
(d) The amount of any Losses under Section 6.2(a) or Section 6.2(b), as the case may be, shall be reduced by the net amount of any insurance proceeds paid to the Indemnified Party relating to such Loss arises claim, after upward adjustment for any insurance proceeds repayment obligations owed as a result of a failure receipt of such indemnification. Portions of this Exhibit, indicated by Glencore the ▇▇▇▇ “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to comply with any the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application the Exchange Act of Applicable Law; or1934, as amended.
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES HERETO SHALL NOT EXTEND TO SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUSINESS INTERRUPTION OR LOST PROFITS, OR PUNITIVE DAMAGES; PROVIDED, HOWEVER, THIS EXCLUSION IS NOT INTENDED TO, NOR SHALL, EXCLUDE ACTUAL OR COMPENSATORY DAMAGES OF THE AFFECTED PARTY NOR APPLY TO THIRD PARTY CLAIMS
Appears in 2 contracts
Sources: Asset Purchase Agreement (Igi Laboratories, Inc), Asset Purchase Agreement (Igi Laboratories, Inc)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out No amounts of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company indemnity shall be wholly barred payable by SLG, SLGOP and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused Manager Corp as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: claim arising under clause (a) the Company shall not be liable of Section 7.2 relating to any Glencore Indemnitee in respect of any a breach or alleged breach of any a representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) claims exceeds $[Redacted - Commercially sensitive information]20,000 (any such Losses being “Qualifying Losses”) and (ii) unless and until Parent Indemnified Parties have paid, suffered, incurred, sustained or become subject to Qualifying Losses referred to in that clause in excess of $500,000 in the aggregate (the “SLGOP Deductible”), in which case Parent Indemnified Parties may bring a claim for such Losses to the extent the aggregate amount of such Losses exceeds the SLGOP Deductible; provided, that such limitation shall not apply to any claim for Losses based upon a breach of any Fundamental Representation. The maximum aggregate Liability of SLG, SLGOP and Manager Corp under clause (a) of Section 7.2 shall not exceed $10,000,000 (the “Indemnity Amount”); provided, that such limitation shall not apply to any claim for Losses based upon a breach of any Fundamental Representation or to any claim for Losses pursuant to Section 7.2(b), Section 7.2(c) or Section 7.2(d).
(b) No amounts of indemnity shall be payable as a result of any claim arising under clause (a) of Section 7.3 relating to a breach or alleged breach of a representation or warranty (i) unless the Losses in respect of such claim or series of related claims are Qualifying Losses and (ii) unless and until the Manager Indemnified Parties have paid, suffered, incurred, sustained or become subject to Qualifying Losses referred to in that clause in excess of $500,000 in the aggregate (the “Parent Deductible”) in which case the Manager Indemnified Parties may bring a claim for such Losses to the extent the aggregate amount of all such Losses exceeds $[Redacted - Commercially sensitive information] and then only the Parent Deductible; provided, that no such limitation exists with respect to the extent a claim based on a breach of such excess; and any of Parent’s Fundamental Representations. The maximum aggregate Liability of Parent under clause (ba) the Company's maximum liability under of Section 9.01 7.3 shall not exceed $[Redacted - Commercially sensitive information] in the aggregateIndemnity Amount; provided provided, that the foregoing limitations shall not apply in the case no such limitation exists with respect to a claim based on a breach of fraud by the Companyany of Parent’s Fundamental Representations.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss Notwithstanding anything contained in this Agreement to the extent contrary, Parent acknowledges and agrees that the breach by SLGOP of the representation and warranty contained in Section 3.6 shall not in and of itself result in a Loss; provided, that the foregoing shall not prevent or otherwise affect a determination that the underlying cause of such Loss arises as breach shall have resulted in a result of a failure by Glencore to comply with any of its obligations under this Agreement;Loss.
(d) Nothing in this Section 7.4 shall apply to, or in any changes way limit the obligations of, an Indemnifying Party under Section 7.5 to pay all defense costs in Applicable Law or changes in generally accepted interpretation or application respect of Applicable Law; orthird-party claims.
(e) Nothing in this Section 7.4 shall apply to, or in any changes in Applicable Accounting Standards or generally accepted interpretation or application way limit the obligations of Applicable Accounting Standardsthe parties under Article VI.
Appears in 2 contracts
Sources: Securities Transfer Agreement (Gramercy Capital Corp), Securities Transfer Agreement (Sl Green Realty Corp)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in With respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any claim for the breach of any representation or warranty of contained in Section 4 (except for representations and warranties concerning (a) the Company first, third and last sentences in this Agreement: Section 4.1 (Corporate Status), (b) Section 4.3 (Authorizations and Binding Obligations), (c) subsections (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (iiiii) in Section 4.4 (Absence of Conflict or Breach), (d) Section 4.8 (b) and (c) (Owned and Leased Tangible Personal Property), (e) Section 4.20 (Taxes), (f) Section 4.29 (Brokerage), and (g) Losses arising out of any and all inaccurate representations and warranties set forth in Section 4.18 of this Agreement with regard to any Plan(s), which are collectively referred to as the "Uncapped Liabilities") or any claim for the breach of any other of the representation or warranty on behalf of Seller contained herein, Seller shall not have any obligation to indemnify Buyer from and against Losses (a) unless and until the aggregate amount Losses of all Losses exceeds Buyer exceed $[Redacted - Commercially sensitive information] 50,000, and then only to the extent of such excess; and excess (the "Deductible"), nor (b) for an aggregate amount in ---------- excess of $2,200,000 (the Company"Cap"). Buyer's maximum liability under Section 9.01 indemnification remedy first shall not exceed $[Redacted - Commercially sensitive information] in --- be satisfied out of the aggregateEscrow Amount; provided that to the foregoing limitations extent the Escrow Amount is insufficient to satisfy any remaining indemnification liability, Buyer shall then be entitled to proceed directly against Seller. The Deductible, but not the Cap, shall apply in the case of fraud by the Company.
(4) Notwithstanding anything Uncapped Liabilities. Any breach of any of the covenants or agreements contained in Section 14 will not be subject to the contrary Deductible or the Cap, nor will the Deductible or the Cap apply in this Agreementthe case of fraud, the Company shall not be liable under this Agreement in or with respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsExcluded Liabilities.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Anthony Crane Rental Holdings Lp), Asset Purchase Agreement (Anthony Crane Rental Lp)
Limitations. (1i) Notwithstanding any other provision The foregoing indemnification obligations will survive the consummation of this Agreement:
the Membership Interest Purchase for a period of eighteen (a18) any Claim months following the Closing Date; provided, however, that the right to indemnification arising out of of, based upon or related to any inaccuracy or breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations or warranties contained in Sections 2.1, 2.2, 2.3, 2.4, 2.5, 2.12, 2.18, 2.19, 2.20, 3.1, 3.2, 3.3, 3.5, 3.6, 4.1, 4.2, 4.3, 4.4, 4.6, 4.7 and warranties the first sentence of Section 2.13(a) (collectively, the “Fundamental Representations”) or arising under Section 6.1(a)(iii) will survive the Closing until 60 days after the expiration of the Company contained in this Agreement, other than statute of limitations for any claim thereunder relating to the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered matters covered by the Glencore Indemnitee to applicable Fundamental Representation, including any extensions thereof, or, if no statute of limitations is applicable thereto, for a period of six (6) years after the Company Closing Date; and provided, further, that claims first asserted in writing within 12 months of the date of this Agreementapplicable survival period will not thereafter be barred.
(2ii) Notwithstanding Except for any indemnification claims arising out of, based upon or related to fraud or intentional misrepresentation, any indemnification arising under Section 9.02(16.1(a)(iii), or any Claim indemnification claims arising out of, based upon or related to any of any breach or inaccuracy of any representation or warranty in respect the Fundamental Representations (none of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior are subject to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company limitations in this Agreement: (iSection 6.1(d)(ii)), the Remaining Members will have no liability to the Buyer Indemnified Parties for indemnification claims brought under Section 6.1(a)(i) for any individual claim (or series of related claims) for Losses unless until the total amount of Losses in respect of indemnification claims under such section exceeds $50,000 in the aggregate, and then the Buyer Indemnified Parties will be entitled to recover only such amounts in excess of $50,000 (which threshold, for the avoidance of doubt, will be determined by aggregating all such indemnification claims rather than on a per claim basis).
(iii) Except for any indemnification claims arising out of, based upon or related to fraud or intentional misrepresentation, or any indemnification claims arising out of, based upon or related to any of the Fundamental Representations (none of which will be counted towards the Representations Claims Cap), the maximum liability for any and all Losses in respect of indemnification claims brought under Section 6.1(a)(i) shall be limited to the amount of the Closing Cash Payment (the “Representations Claims Cap”), and the maximum amount any Remaining Member may be liable for shall be equal to the amount of the Closing Cash Payment paid to such Remaining Member.
(iv) Except for any indemnification claims arising out of, based upon or related to fraud or intentional misrepresentation, or any indemnification claims arising out of, based upon or related to any of the Fundamental Representations (none of which are subject to the limitations in this Section 6.1(d)(iv)), the Buyer will have no liability to the Member Indemnified Parties for indemnification claims brought under Section 6.1(b)(i) until the total amount of Losses in respect of indemnification claims under such section exceeds $50,000 in the aggregate, and then the Member Indemnified Parties will be entitled to recover only such amounts in excess of $50,000 (which threshold, for the avoidance of doubt, will be determined by aggregating all such indemnification claims rather than on a per claim basis).
(v) Except for any indemnification claims arising out of, based upon or related to fraud or intentional misrepresentation, or any indemnification claims arising out of, based upon or related to any of the Fundamental Representations (none of which will be counted towards the Representations Claims Cap), the maximum liability of Buyer for any and all Losses in respect of indemnification claims brought under Section 6.1(b)(i) shall be limited to an amount equal to the Representations Claims Cap.
(vi) In calculating the amount of Losses recoverable pursuant to this Section 6.1, the amount of such Losses shall be reduced by (A) any insurance proceeds actually received by the Indemnified Party from any unaffiliated insurance carrier offsetting the amount of such Loss, net of any expenses incurred by the Indemnified Party in obtaining such insurance proceeds (including the payment of a deductible with respect to the same and any premium increase directly attributable thereto), and (B) any recoveries actually received by the Indemnified Party from other Persons pursuant to indemnification (or series otherwise) with respect thereto, net of related claimsany expenses incurred by the Indemnified Party in obtaining such payment. If any Losses for which indemnification payments have actually been received by the Indemnified Party hereunder are subsequently reduced by any insurance payment or other recovery actually received from another Person, the Indemnified Party shall promptly remit the amount of such recovery to the applicable Indemnifying Party (up to the amount of the payment by the applicable Indemnifying Party, after deducting therefrom the full amount of the expenses incurred by such Indemnified Party (i) exceeds $[Redacted - Commercially sensitive information]; and in procuring such recovery or (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only in connection with such indemnification to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall required to be, but which have not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Companybeen, paid or reimbursed).
(4vii) Notwithstanding anything Following the Closing Date, the sole and exclusive remedy of the Buyer Indemnified Parties and the Member Indemnified Parties with respect to the contrary in any and all claims relating to this Agreement, the Company Disclosure Schedule, the Buyer Disclosure Schedule or any of the certificates delivered pursuant to Section 7.2(d) or Section 7.3(d) shall be indemnification in accordance with this Section 6.1, except with respect to any claim arising out of, based upon or related to fraud or intentional misrepresentation or a breach of any of the covenants set forth in Section 5.3 or Article I, and provided that any claims under the Employment Agreements shall not be liable under limited by this Agreement in respect of:
(a) section and shall be subject to any consequentialapplicable remedies thereunder. Each Indemnified Party entitled to indemnification hereunder shall use commercially reasonable efforts to mitigate Losses for which it seeks indemnification hereunder, special, indirect, multiple-of-profit or punitive damages or Losses and the costs and expenses incurred in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result mitigation efforts shall be deemed Losses for purposes of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsSection 6.1.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (AMERI Holdings, Inc.)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of Except with respect to Fraud or any breach or inaccuracy of any the Fundamental Company Representations or any breach Representation, no amount of indemnity shall be payable hereunder as a result of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with arising under Section 9.03 6.2(a) or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or 6.3(a) in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any connection with a breach or inaccuracy of a representation or warranty (i) with respect to any of such individual breach or inaccuracy, unless the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim aggregate Losses arising out of any from such breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; **] and (ii) unless and until the aggregate amount Indemnified Party has suffered, incurred, sustained or become subject to Losses in excess of all Losses exceeds $[Redacted - Commercially sensitive information**] and then only to (the extent of such excess; and (b“Threshold”) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that , in which case the foregoing limitations shall not apply Indemnified Party may bring a claim for all Losses in the case excess of fraud by the Company.
(4such amount. The maximum aggregate liability of an Indemnifying Party under Section 6.2(a) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(aor Section 6.3(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;breach or inaccuracy of a representation or warranty shall not exceed (A) except with respect to Fraud or any breach or inaccuracy of any Fundamental Representation, an aggregate amount equal to [**], (B) with respect to any breach or inaccuracy of any Fundamental Representation, an aggregate amount equal to [**] and (C) with respect to Fraud, [**] (the foregoing clauses (A), (B) and (C), as applicable, the “Cap”).
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;NO PARTY TO THIS AGREEMENT SHALL BE LIABLE TO OR OTHERWISE RESPONSIBLE TO THE OTHER PARTY OR ANY AFFILIATE OF THE OTHER PARTY FOR LOST REVENUES OR PROFITS DAMAGES OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLIED DAMAGES OR ATTORNEYS FEES, COSTS OR PREJUDGMENT INTEREST THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH HEREOF OR ANY LIABILITY RETAINED OR ASSUMED HEREUNDER, EXCEPT TO THE EXTENT PAYABLE PURSUANT TO ANY THIRD PARTY CLAIM.
(c) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss. If an Indemnified Party fails to use its commercially reasonable efforts to mitigate a Loss, the Losses to which such Indemnified Person is entitled to be indemnified pursuant to this ARTICLE VI shall be reduced to the extent the Indemnifying Party demonstrates that the Indemnified Party’s failure to use its commercially reasonable efforts to mitigate such Loss arises as a result increased the amount of a failure by Glencore to comply with any of its obligations under this Agreement;such Loss.
(d) The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any changes in Applicable Law or changes in generally accepted interpretation or application Losses under this Agreement. The calculation of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.Loss subject to indemnification under this
Appears in 2 contracts
Sources: Asset Purchase Agreement (Gyroscope Therapeutics Holdings LTD), Asset Purchase Agreement (Gyroscope Therapeutics Holdings LTD)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach Notwithstanding anything to the contrary herein, except with respect to Damages relating to willful misrepresentation, fraud or inaccuracy of any the Fundamental Company Representations or any breach of any covenant the representation and warranties in Section 2.2 (or the portion of the Company Certificate relating thereto), (i) the aggregate liability of the Indemnifying Stockholders, on the one hand, and the Buyer, on the other hand, for Damages under this Article VI shall not exceed 10% of the Total Merger Consideration, (ii) the Indemnifying Stockholders and the Buyer shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 liable under this Article VI only if the aggregate Damages for which they or Section 9.04 is delivered by it would otherwise be liable exceeds $1,000,000, but if the Glencore Indemnitee to Damages do exceed that amount, then the Company on Indemnifying Stockholders or prior to the latest date permitted by applicable law (or in Buyer, as the case may be, shall be liable for all Damages, and (iii) each Indemnifying Stockholder shall only be liable for his, her or its pro rata share (based on the number of Merger Shares received by such Indemnifying Stockholder as a percentage of the total number of Merger Shares issued); provided that the limitation set forth in clauses (i) and (ii) above shall not apply to a claim pursuant to Section 6.1(a) relating to a breach of the covenants set forth in Section 4.8. For purposes solely of the Companythis Article VI, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the all representations and warranties of the Company in Article II (other than Section 2.28) and all representations and warranties of the Buyer and the Transitory Subsidiary in Article III (other than Section 3.10) shall be construed as if the term "material" and any reference to "Company Material Adverse Effect" and "Buyer Material Adverse Effect" (and variations thereof) were omitted from such representations and warranties.
(b) Except for Damages relating to willful misrepresentation, fraud and breach of the representation and warranties set forth in Section 2.2 or the covenants set forth in Section 4.8, the Escrow Agreement shall be the exclusive means for the Buyer to collect any Damages for which it is entitled to indemnification under this Article VI.
(c) Except with respect to claims based on willful misrepresentation and fraud, after the Closing, the rights of the Indemnified Parties under this Article VI and the Escrow Agreement shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2d) Notwithstanding Section 9.02(1), No Indemnifying Stockholder shall have any Claim arising out right of contribution against the Company or the Surviving Corporation with respect to any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law representations, warranties, covenants or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsagreements.
Appears in 2 contracts
Sources: Merger Agreement (Unisphere Networks Inc), Merger Agreement (Unisphere Networks Inc)
Limitations. (1) Notwithstanding Except with respect to claims based on actual fraud or injunctive or any other provision similar equitable relief that may be available to Purchaser, the rights of the Purchaser Indemnitees under Section 4.2 shall be the sole and exclusive remedies of the Purchaser Indemnitees with respect to claims resulting from or relating to any misrepresentation, breach of warranty or failure to perform Seller’s obligations under this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any . Without limiting the Fundamental Company Representations or any breach of any covenant generality of the Company foregoing, in no event shall Purchaser, its successors or permitted assigns be wholly barred and unenforceable unless a written notice of entitled to claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case seek rescission of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of transactions consummated under this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary contained in this Agreement, each of the Company following limitations shall apply:
(i) the aggregate liability of Seller for the sum of all Damages under Sections 4.2(a) and (b) shall not exceed $[*];
(ii) Seller shall not be liable obligated to pay Purchaser Indemnitees indemnification for any Damages that exceed in aggregate $[*], and the sole remedy of the Purchaser Indemnitees for Damages to which they are otherwise entitled to indemnification under this Agreement Section 4.2 that exceed in respect of:
(aaggregate $[*] and that are within the limit described in Section 4.3(a)(i) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claimshall be to offset the amount of such Damages against payments that may become due and payable under Section 1.7(b);
(iii) no individual claim or series of related claims for indemnification under Sections 4.2(a) or (b) any Loss which shall be valid or assertable unless it is contingent unless and until such contingent Loss becomes (or they are) for an actual Loss that is due and payableamount in excess of $[*];
(civ) any Loss the Seller shall be liable under Section 4.2(a) only if the aggregate Damages under Section 4.2(a) exceed $[*] (it being understood that, if such condition is satisfied, Seller shall be liable for all such Damages, without regard to the extent that such Loss arises as a result of a failure by Glencore threshold, but subject to comply with any of its obligations under other limitations in this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable LawSection 4); or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.and
Appears in 2 contracts
Sources: Asset Purchase Agreement (Portola Pharmaceuticals Inc), Asset Purchase Agreement (Portola Pharmaceuticals Inc)
Limitations. (1a) Notwithstanding anything herein to the contrary, no Indemnifying Party shall have any obligation to indemnify any Indemnified Parties pursuant to Sections 9.02(a)(i) or 9.03(a)(i), and no Indemnified Party shall make a claim pursuant to Sections 9.02(a)(i) or 9.03(a)(i), unless the aggregate amount of Damages sustained or incurred with respect to all claims pursuant to Section 9.02(a)(i) or Section 9.03(a)(i), as the case may be, exceeds $700,000 and then only to the extent of such excess up to (but not in excess of) a maximum aggregate indemnity for such Damages payable by the Purchaser pursuant to Section 9.02(a)(i) or the Sellers pursuant to Section 9.03(a)(i), as the case may be, of an amount equal to $7 million.
(b) Notwithstanding anything herein to the contrary, payments by the Indemnifying Party pursuant to Section 9.02 or 9.03 shall be limited to the amount of Damages, if any, that remains after deducting therefrom (i) any Tax benefit to the applicable Indemnified Parties resulting from such Damages, (ii) any insurance proceeds and any indemnity, contribution or other similar payment recoverable by the Indemnified Parties from any third party with respect thereto, (iii) any provision or reserve provided for the item in question in the Closing Date Working Capital Amount and (iv) any adjustments to the Purchase Price paid pursuant to Section 2.07 in respect of the item in question.
(c) The Sellers shall have no liability under any provision of this Agreement for any Damages to the extent that such Damages relate to actions taken or omitted to be taken by the Purchaser or any of its Affiliates after the Closing Date. In no event shall the Purchaser or Sellers be liable to indemnify the other for punitive, consequential, special or similar Damages. The Purchaser shall take all reasonable steps to mitigate all Damages incurred or sustained by any Purchaser Indemnified Party upon and after becoming aware of any event which could reasonably be expected to give rise to Damages.
(d) Notwithstanding any other provision of this Agreement:
(a) any Claim , the Purchaser acknowledges that the obligation of the Sellers to provide indemnification for Damages arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee extends only to the Company on or prior to Purchaser Indemnified Parties, and that the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company Sellers shall not be liable obligated to provide such indemnification to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only other Persons other than a permitted assignee pursuant to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company11.08.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.
Appears in 2 contracts
Sources: Asset Purchase Agreement (GateHouse Media, Inc.), Asset Purchase Agreement (GateHouse Media, Inc.)
Limitations. (1i) Notwithstanding In the absence of fraud, (A) neither Hosting nor Networks shall have any other provision Liability, nor be subject to any Claim, under Section 8(b)(i)(A) of this Agreement:
(a) any Claim arising out Agreement in respect of any misrepresentation or breach by Hosting or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy Networks of any representation or warranty set forth in this Agreement (1) with respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee individual Liability or Claim, unless such Liability or Claim involves Losses in respect excess of any breach of any representation $5,000 or warranty of the Company in this Agreement: (i2) for any individual claim (or series of related claims) for Losses unless the amount of Losses indemnifiable Losses, in respect of such claim (or series of related claims) the aggregate, exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] 75,000, and then shall be liable only to the extent of such excess; excess and (bB) the Companyaggregate obligation of Networks and Hosting to indemnify, defend and hold the VitalStream Indemnitees harmless hereunder shall be limited to $800,000. In the event a VitalStream Indemnitee seeks indemnification for Losses pursuant to this Section 8, such VitalStream Indemnitee's maximum liability under Section 9.01 sole recourse shall not exceed $[Redacted - Commercially sensitive information] be against the Escrow Shares, (as defined in the aggregate; provided that Escrow Agreement). Any recourse against the foregoing limitations Escrow Shares shall not apply be made based upon the Fair Market Value of the Escrow Shares as determined on the day immediately prior to the date on which a Claims Notice (as defined in the case of fraud Escrow Agreement) is sent by the CompanyVitalStream.
(4ii) Notwithstanding anything In addition to the contrary limitations set forth in Section 8(f)(i) of this Agreement, the Company neither Hosting nor Networks shall not have any Liability, nor be liable subject to any Claim, under this Agreement in respect of:of any Liability or Claim arising out of or related to (A) the methodology and billing practices utilized by Networks and Hosting to charge its customers for services (including bandwidth) other than Losses incurred by VitalStream based upon any third-party Claim brought against VitalStream with respect to such methodology and billing practices and (B) the failure by Networks or Hosting to transfer any of the assets set forth on Schedule 8(f)(ii).
(aiii) In the absence of fraud, (A) VitalStream shall have no Liability, nor be subject to any consequentialClaim, specialunder Section 8(c)(i)(A) of this Agreement in respect of any misrepresentation or breach by VitalStream of any representation or warranty set forth in this Agreement (1) with respect to any individual Liability or Claim, indirect, multiple-of-profit unless such Liability or punitive damages or Claim involves Losses in connection with a Direct Claim;
excess of $5,000 or (b2) any Loss which is contingent unless the amount of indemnifiable Losses, in the aggregate, exceeds $75,000, and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss then shall be liable only to the extent that of such excess and (B) the aggregate obligation of VitalStream to indemnify, defend and hold Purchase Share Indemnitees harmless hereunder shall be limited to $800,000. In the event a Purchase Share Indemnitee seeks indemnification for Losses pursuant to this Section 8, such Purchase Share Indemnitee's sole remedy shall be the issuance by VitalStream of additional shares of Common Stock to such Purchase Share Indemnitee with an aggregate Fair Market Value (as determined on the day immediately prior to the date on which a Purchase Share Indemnitee sends a notice of an indemnifiable Loss arises as to VitalStream under this Section 8) equal to such indemnifiable Losses; provided, however, the aggregate number of shares of Common Stock VitalStream shall be required to issue pursuant to this Section 8 shall not exceed a result number of shares of Common Stock equal to the number of Escrow Shares. Notwithstanding the foregoing, in the event a Purchase Share Indemnitee seeks indemnification for Losses pursuant to this Section 8 in respect of a failure breach by Glencore to comply with any VitalStream or Buyer of its obligations under Section 6(m) or Section 6(n) of this Agreement;
(d) any changes , such Purchase Share Indemnitee shall be entitled to Cash from VitalStream in Applicable Law or changes in generally accepted interpretation or application an amount equal to the amount of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardssuch Indemnifiable Losses.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Vitalstream Holdings Inc), Asset Purchase Agreement (Brekka Richard)
Limitations. (1) Notwithstanding Any recovery by any other provision of party under this AgreementArticle X with respect to claims for indemnification pursuant to this Section 10.1 shall be limited as follows:
(ai) any Claim The maximum aggregate amount of indemnifiable Losses under Article X arising out of any breach or inaccuracy resulting from the causes that may be recovered from Sellers shall not exceed the amounts then remaining of any the Fundamental Company Representations or General Escrow Amount in the Escrow Fund; provided that, notwithstanding anything in this Section 10.1(d) to the contrary, in no event will the limitations set forth in this Section 10.1(d)(i) apply with respect to any breach of any representation, warranty, or covenant or obligation pursuant to Section 3.3 (Interests) and Section 3A.4 (Interests); provided, however, that no Seller shall be liable for the amount of idemnifiable Losses exceeding, on an aggregate basis, the portion of the Company Purchase Price received by such Seller;
(ii) No party shall be wholly barred entitled to any recovery unless and unenforceable unless a written notice until the total of claim all claims brought by such party for indemnity or damages pursuant to this Section 10.1 exceeds $500,000 and such party then shall be entitled to recover only the amount by which such claims for indemnity or damages exceed $500,000; provided that, notwithstanding anything in accordance with this Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee 10.1(d) to the Company on or prior to contrary, in no event will the latest date permitted by applicable law limitations set forth in this Section 10.1(d)(ii) apply (or x) in the case event of the covenants fraud, willful misconduct or bad faith, (y) with respect to any breach of the Companyany representation, such shorter period expressly specified thereinwarranty or covenant or obligation pursuant to Section 3.3 (Interests) and Section 3A.4 (Interests), and (z) with respect to any claim for indemnification pursuant to Section 10.1(a)(iv), (v), (vi), or (vii); and
(biii) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained The remedies set forth in this Agreement, other than Article X and Sections 2.7 and 2.8 and the Fundamental Company Representations, specific performance remedy referenced in Section 11.18 shall be wholly barred provide the sole and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of exclusive remedies arising from this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.
Appears in 2 contracts
Sources: Purchase Agreement (Tortoise Capital Resources Corp), Purchase Agreement (James River Coal CO)
Limitations. (1a) Notwithstanding Except with respect to Claims based on actual fraud, the rights of the Indemnified Parties under this Article XI shall be the sole and exclusive remedies of the Indemnified Parties and their respective Affiliates with respect to Claims resulting from or relating to any other provision misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in this Agreement or otherwise relating to the transactions that are the subject of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any . Without limiting the Fundamental Company Representations or any breach of any covenant generality of the Company foregoing sentence, in no event shall any party hereto, nor its successors or permitted assigns be wholly barred and unenforceable unless a written notice of entitled to claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case seek rescission of the covenants of the Company, such shorter period expressly specified therein); andtransactions consummated under this Agreement.
(b) any Claim arising out of any breach or inaccuracy of any of Notwithstanding anything to the representations and warranties of the Company contrary contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months each of the date of this Agreement.following three limitations shall apply:
(2i) Notwithstanding Section 9.02(1the aggregate liability of IDX for the sum of all Losses under Sections 11.1(a)(i), any Claim (iii), (v), (vi) and (vii) (insofar as the Expenses referred to therein relate to Losses arising out under Sections 11.1(a)(i), (iii), (v) or (vi)) and clause (ii) of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.Section 11.4 shall not exceed $50 million;
(3) Notwithstanding any other provision of this Agreement: (aii) the Company aggregate liability of Allscripts for the sum of all Losses under Sections 11.1(b)(ii) (excluding Losses arising from a breach of Section 11.3(i)), (iii) and (v) (insofar as the Expenses referred to therein relate to Losses arising under Sections 11.1(b)(ii) or (iii)) shall not exceed $50 million; provided, however, any issuance of Earnout Shares shall not be counted against such amount; and
(iii) IDX shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim Loss under Sections 11.1(a)(i), (iii), (v), (vi) or series of related claims(vii) for (insofar as the Expenses referred to therein relate to Losses unless the amount of Losses in respect of such claim arising under Sections 11.1(a)(i), (iii), (v) or series of related claims(vi)) exceeds $[Redacted - Commercially sensitive information]; and clause (ii) of Section 11.4 unless such Loss exceeds $50,000 and IDX shall not be liable for any such individual Losses in excess of $50,000 unless and until the aggregate amount of all such individual Losses in excess of $50,000 exceeds $[Redacted - Commercially sensitive information] and then 1 million (it being understood that in such case IDX shall be liable only to for the extent amount of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed Losses in excess of $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company500,000).
(4c) In no event shall any Indemnifying Party be responsible and liable for any Losses or other amounts under this Article XI that are consequential, in the nature of lost profits, diminution in value, damage to reputation or the like, special or punitive or otherwise not actual Losses. Allscripts shall (and shall cause the ChannelHealth Surviving Corporation to) use commercially reasonable efforts to pursue all legal rights and remedies available in order to minimize the Losses for which indemnification is provided to Allscripts by IDX under Article XI.
(d) The amount of any Losses for which indemnification is provided under this Article XI shall be reduced by any related recoveries to which the Indemnified Party is entitled under insurance policies or other related payments received or receivable from third parties and any tax benefits actually received by the Indemnified Party or any of its Affiliates or for which the Indemnified Party or any of its Affiliates is eligible on account of the matter resulting in such Losses or the payment of such Losses.
(e) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable amount of any Losses for which indemnification by IDX is provided under this Agreement Article XI shall be calculated net of any accruals, reserves or provisions reflected in respect of:the Closing Date Balance Sheet.
(af) Effective as of the Effective Time, each of Parent and Allscripts hereby waives and releases (and shall cause the ChannelHealth Surviving Corporation to waive and release), any claim ChannelHealth may have against IDX, except (i) any consequential, special, indirect, multiple-of-profit claims or punitive damages rights hereunder or Losses in connection with a Direct Claim;
under any Ancillary Agreement and (bii) any Loss which is contingent unless claims or rights under the ChannelHealth/IDX Asset Purchase Agreement. Effective as of the Effective Time, IDX hereby waives and until such contingent Loss becomes an actual Loss that is due and payable;
(c) releases any Loss to claim IDX may have against the extent that such Loss arises as a result of a failure by Glencore to comply with ChannelHealth Surviving Corporation, except any of its obligations claims or rights hereunder or under this any Ancillary Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.
Appears in 2 contracts
Sources: Merger Agreement (Idx Systems Corp), Merger Agreement (Allscripts Inc /Il)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company No indemnity shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee payable to the Company on or prior AHD Indemnified Parties under Section 12.2(a) with respect to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of resulting from any breach or inaccuracy of any representation or warranty warranty, unless and until the aggregate of all Losses due from Atlas exceeds $5,000,000, in which event all Losses so due in excess of such amount shall be paid in full by Atlas; provided that the aggregate amount payable by Atlas under Section 12.2(a), with respect to claims resulting from any breach or inaccuracy of which indemnity may be sought that was caused as a result of fraud may be brought at any time on representation or prior warranty, shall not exceed $25,000,000. Notwithstanding anything to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of contrary contained in this Agreement: (a) the Company , Atlas shall not be liable required to indemnify any AHD Indemnified Party with respect to any Glencore Indemnitee in respect Loss (or series of related Losses) incurred by or asserted by reason of any breach of any representation representation, warranty or warranty of the Company covenant contained in this Agreement: (i) for any individual claim Agreement if the Loss (or series of related claimsLosses) for from such breach is less than $50,000, nor shall any such Losses be included in the calculation of the amounts specified in this Section 12.5(a). The limitations set forth in this Section 12.5(a) shall not apply with respect to the representations and warranties set forth in Sections 5.2(a), (b) and (c), 5.6 and 5.10.
(b) No indemnity shall be payable to the Atlas Indemnified Parties under Section 12.3(a) with respect to any claim resulting from any breach or inaccuracy of any representation or warranty, unless and until the amount aggregate of all Losses due from AHD exceeds $5,000,000, in respect which event all Losses so due in excess of such claim amount shall be paid in full by AHD; provided that the aggregate amount payable by AHD under Section 12.3(a), with respect to claims resulting from any breach or inaccuracy of a representation or warranty, shall not exceed $25,000,000. Notwithstanding anything to the contrary contained in this Agreement, AHD shall not be required to indemnify any Atlas Indemnified Party with respect to any Loss (or series of related claimsLosses) exceeds incurred by or asserted by reason of any breach of any representation, warranty or covenant contained in this Agreement if the Loss (or series of related Losses) from such breach is less than $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all 50,000, nor shall any such Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] be included in the aggregate; provided that calculation of the foregoing amounts specified in this Section 12.5(b). The limitations set forth in this Section 12.5(b) shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything with respect to the contrary representations and warranties set forth in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless Sections 6.4 and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards6.6.
Appears in 2 contracts
Sources: Transaction Agreement (Atlas Energy, Inc.), Transaction Agreement (Atlas Pipeline Holdings, L.P.)
Limitations. Buyer and Sellers shall be liable under Section 11.1(i) or Section 11.2(i) (1i.e., for misrepresentations and breaches of warranties), as applicable, only when aggregate indemnification claims exceed $20,000 ("THRESHOLD AMOUNT"), after which Buyer or Sellers, as applicable, shall be liable for all such claims back to the first dollar of damages. No party shall be liable for any indemnification pursuant to Section 11.1 (i) Notwithstanding or Section 11.2(i), as applicable, for any claims for misrepresentations and breaches of warranty which are the basis upon which any other provision party shall have failed to consummate the transactions described herein pursuant to Section 7.1 or Section 8.1, as applicable, or which are based upon misrepresentations and breaches of warranty which have been waived in writing by the party seeking indemnification therefor. The liability of Buyer and Sellers for indemnification under Section 11.1(i) or Section 11.2(i), respectively, shall be limited to an amount equal to (i) the Purchase Price with respect to the representations and warranties contained in Sections 3.1, 3.2, 3.3, 3.12 (subject to the limitations of title warranties stated in Section 2.2(a) and (b)), 4.1, 4.2 and 4.3, (ii) Two Million Dollars ($2,000,000) with respect to the representations and warranties contained in Sections 3.7, 3.8, 3.9, 3.15 and 3.23, and (iii) One Million Dollars ($1,000,000) with respect to all other representations and warranties. Notwithstanding anything to the contrary, the limitations contained in this Agreement:
(aSection 11.3 shall not apply to any indemnification claims arising under Section 11.1(i) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant Section 11.2(i) as a result of the Company shall be wholly barred and unenforceable unless a written notice intentional misrepresentation or fraud of claim in accordance with Section 9.03 Buyer or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or Sellers, respectively. Except in the case of intentional misrepresentation or fraud, the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of sole and exclusive remedy for any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreementinaccuracy, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any alleged breach or inaccuracy inaccuracy, of any representation or warranty made by a Seller or Buyer shall be the remedies provided by this Article 11. The losses of any Indemnified Party (as defined below) shall be reduced by the amount of any insurance proceeds received (net of applicable insurance premium increases) by such Indemnified Party in respect of the claim to which indemnity may be sought that was caused as a result such losses relate. The losses of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company Indemnified Party shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only include punitive damages, except to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses are included in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsthird party claim.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Psychiatric Solutions Inc), Asset Purchase Agreement (Psychiatric Solutions Inc)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim (i) With respect to claims for Damages arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with under Section 9.03 5.1(a)(i) or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(15.1(a)(ii), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company Sellers shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and Damages until the aggregate amount of all Losses such Damages exceeds $[Redacted - Commercially sensitive information] and then 200,000 (the “Basket”) (at which point the Sellers shall become liable only to for Damages under Section 5.1(a)(i) or Section 5.1(a)(ii) in excess of the extent of such excess; Basket) and (bii) the Company's maximum liability with respect to claims for Damages arising under Section 9.01 5.1(b)(i), the Buyer shall not exceed $[Redacted - Commercially sensitive information] be liable for any such Damages until the aggregate amount of all such Damages exceeds the Basket (at which point the Buyer shall become liable only for Damages under Section 5.1(b)(i) in excess of the aggregateBasket); provided that the foregoing limitations limitation set forth in this sentence shall not apply in to (A) claims based on fraud or (B) any claim relating to a breach of any of the case of fraud by the CompanyFundamental Representations.
(4b) Except for claims based on fraud and claims for breaches of Fundamental Representations, the Escrow Agreement shall be the exclusive means for the Buyer to collect any Damages for which it is entitled to indemnification under Section 5.1(a)(i) and Section 5.1(a)(ii). The Buyer shall not attempt to collect any Damages directly from any Seller, unless there are insufficient unclaimed Escrow Shares remaining to satisfy such Damages pursuant to the Escrow Agreement.
(c) Except for claims based on fraud and claims for breaches of Fundamental Representations, no Seller shall attempt or be entitled to collect any Damages for which it is entitled to indemnification under Section 5.1(b)(i) from the Buyer in an amount in excess, individually or in the aggregate, of $1,304,364.75.
(d) Except for claims based on fraud, the aggregate liability of each Seller for Damages under this Article V shall not exceed the portion of the Aggregate Consideration such Seller receives pursuant to this Agreement (including any amounts held in the Escrow Account but not, for the avoidance of doubt, Contingent Payments not yet earned). The aggregate liability of the Buyer for Damages under this Article V shall not exceed the Aggregate Consideration.
(e) No Seller shall have any right of contribution against the Company with respect to any breach by the Company of any of its representations, warranties, covenants or agreements.
(f) The rights to indemnification set forth in this Article V shall not be affected by any investigation conducted by or on behalf of any Indemnified Party or any knowledge acquired (or capable of being acquired) by any Indemnified Party, whether before or after the date of this Agreement or the Closing Date, with respect to the inaccuracy or noncompliance with any representation, warranty, covenant or obligation which is the subject of indemnification hereunder.
(g) Notwithstanding anything to the contrary in this Agreement, for purposes of determining (i) whether there has been a breach of any representation or warranty set forth in Article II, Article III or Article IV and (ii) the amount of Damages for which any Indemnified Party may be entitled to indemnification under this Article V, each such representation or warranty (other than the representations and warranties set forth in Section 3.6(a) or Section 4.8(a)) shall be deemed to have been made without any qualifications or limitations as to materiality (including any qualifications or limitations made by reference to a Company Material Adverse Effect).
(h) Except with respect to claims based on fraud or for specific performance, after the Closing, the rights of the Buyer under this Article V shall be the exclusive remedy of the Buyer with respect to claims resulting from or relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement of the Company shall not be liable under or the Sellers contained in this Agreement in respect of:Agreement.
(ai) any consequential, special, indirect, multiple-of-profit Any payments made to a party pursuant to this Article V or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes pursuant to the Escrow Agreement shall be treated as an actual Loss that is due and payable;
(c) any Loss adjustment to the Aggregate Consideration for Tax purposes to the extent that such Loss arises as a result of a failure permitted by Glencore to comply with any of its obligations under this Agreement;Law.
(dj) Payments by an Indemnifying Party pursuant to this Article V in respect of any changes Damages shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds actually received (without any obligation to pursue any such proceeds) and any indemnity, contribution or other similar payment actually received (without any obligation to pursue any such payments) by the Indemnified Party in Applicable Law or changes in generally accepted interpretation or application respect of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardssuch claim.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Eleven Biotherapeutics, Inc.)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) The Earnout Amount shall be available to compensate Buyer for any Claim arising out Losses pursuant to the terms of this Agreement and Buyer may set-off against such payments the amount of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim Losses, as set forth in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein2.3(c); and.
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee Notwithstanding anything to the Company within 12 months contrary herein, in the event of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty (a “Breach”), except in the event of the Company in this Agreement: fraud or willful misconduct with respect to such Breach, (i) the aggregate liability of Seller for any individual claim Damages under this Article VII shall not exceed Two Million Dollars (or series of related claims$2,000,000) for Losses unless (the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; “Cap Amount”), and (ii) unless and Seller shall not be required to make any indemnification payment pursuant to Article VII for Damages resulting from any Breach until such time as the aggregate total amount of all Losses Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of its representations or warranties) that have been directly or indirectly suffered or incurred by Buyer, or to which Buyer has otherwise becomes subject, exceeds Forty Thousand Dollars ($[Redacted - Commercially sensitive information] and then only to 40,000) in the extent aggregate (the “Floor Amount”). If the total amount of such excess; and (bDamages exceeds the Floor Amount) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided , then Buyer shall be entitled to be indemnified against and compensated and reimbursed for the entire amount of such Damages (including the Floor Amount), up to the Cap Amount. Any qualifications or exceptions relating to materiality with respect to any representations or warranties shall be disregarded for the purpose of determining the amount that the foregoing limitations an Indemnified Person shall not apply in the case of fraud by the Companybe entitled to pursuant to this Article VII with respect to such representation or warranty.
(4c) Notwithstanding anything to the contrary herein, except in the event of fraud or willful misconduct with respect to the breach of any representation or warranty, (i) the aggregate liability of Buyer for Damages under this AgreementArticle VII shall not exceed the Cap Amount, the Company and (ii) Buyer shall not be liable under this Agreement in respect of:
(a) required to make any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) indemnification payment pursuant to Article VII for Damages resulting from any Loss which is contingent unless and Breach until such contingent Loss time as the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of its representations or warranties) that have been directly or indirectly suffered or incurred by Seller, or to which Seller has otherwise becomes an actual Loss that is due subject, exceeds the Floor Amount in the aggregate. If the total amount of such Damages exceeds the Floor Amount in the aggregate, then Seller shall be entitled to be indemnified against and payable;
compensated and reimbursed for the entire amount of such Damages (c) any Loss including the Floor Amount), up to the extent Cap Amount. Any qualifications or exceptions relating to materiality with respect to any representations or warranties shall be disregarded for the purpose of determining the amount that an Indemnified Person shall be entitled to pursuant to this Article VII with respect to such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;representation or warranty.
(d) Except with respect to claims based on fraud or willful misconduct, the rights of the Indemnified Persons under this Article VII shall be the exclusive remedy of the Indemnified Persons with respect to claims resulting from or relating to any changes misrepresentations, breach of warranty or failure to perform any covenant contained in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsthis Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (C-Cor Inc)
Limitations. (1a) Except with respect to (i) Taxes or (ii) any Loss arising out of any breach of (A) any representation or warranty in Section 4.15 or (B) any of the Fundamental Representations, SE Corp shall not be liable to the SEP Indemnified Parties for any Losses with respect to the matters contained in Section 9.2(a)(i) unless and until the aggregate of all Losses therefrom for which SE Corp would otherwise be liable exceeds an amount equal to $106,000,000 (the “Deductible”), after which SE Corp shall only be liable for Losses in excess of the Deductible.
(b) Except with respect to (i) Taxes or (ii) any Loss arising out of any breach of (A) any representation or warranty in Section 4.15 or (B) any of the Fundamental Representations, SE Corp shall not be liable to the SEP Indemnified Parties with respect to the matters contained in Section 9.2(a)(i) for any individual Loss (or series of related Losses arising from a common set of facts), except to the extent such individual Loss (or series of related Losses arising from a common set of facts) exceeds $2,000,000 (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 Deductible in Section 9.4(a).
(c) In no event shall SE Corp’s aggregate liability to the SEP Indemnified Parties for Losses with respect to the matters contained in Section 9.2(a)(i) exceed $1,060,000,000 (the “Cap”), except with respect to (i) Taxes or (ii) any Loss arising out of any breach of (A) any representation or warranty in Section 4.15 or (B) any of the Fundamental Representations, in which case SE Corp’s aggregate liability to SEP Indemnified Parties pursuant to Section 9.2(a)(i) for such Losses shall not exceed an amount equal to the Cash Distribution.
(d) In no event shall SEP’s aggregate liability to the Contributor Indemnified Parties for Losses with respect to matters contained in Section 9.3(a)(i) exceed $1,060,000,000. In no event shall SEP’s aggregate liability to the Contributor Indemnified Parties in respect of the SE US Liabilities pursuant to Section 9.3(a)(iv) exceed $50,000,000.
(e) As to any Losses claimed by an SEP Indemnified Party and suffered by a Company, 100% of such Losses (and not just the percentage thereof that represents SEP’s interest in such Company) shall be counted towards the Deductible and the Cap hereunder. To the extent any SEP Indemnified Party other than a Company has a claim under Section 9.2(a)(i) or under Section 6.8(a) for Losses suffered by any of the Companies, such SEP Indemnified Party shall only be entitled to recover the percentage of such Losses that represents SEP’s interest in the relevant Company.
(f) Notwithstanding anything herein to the contrary, no Indemnified Party shall be entitled to indemnification or reimbursement under any provision of this Agreement for any amount to the extent such Person or its Affiliate has been indemnified or reimbursed for such amount under any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4g) Notwithstanding anything to the contrary in this Agreement, the Company in no event shall not an Indemnifying Party be liable under this Agreement in respect of:
(a) Article IX for any consequentialexemplary, punitive, special, indirectconsequential, multiple-of-profit incidental or punitive damages indirect damages, including lost profits or Losses in connection with a Direct Claim;
(b) diminution of value or any Loss which is contingent unless and until such contingent Loss becomes an loss of goodwill or possible business after any Closing, whether actual Loss that is due and payable;
(c) any Loss or prospective, except to the extent that any such Loss arises as damages are included in any Third-Party Claim against a result of a failure by Glencore SEP Indemnified Party for which such SEP Indemnified Party is entitled to comply with any of its obligations indemnification under this Agreement;.
(dh) Each Indemnified Party shall use commercially reasonable efforts to mitigate their respective Losses upon and after becoming aware of any changes event or condition that would reasonably be expected to give rise to any Losses that are indemnifiable hereunder. In the event an Indemnified Party fails to so mitigate an indemnifiable Loss, the Indemnifying Party shall have no liability for any portion of such Loss that reasonably could have been avoided had the Indemnified Party made such efforts. Without limiting the generality of the foregoing, after an Indemnified Party acquires knowledge of any fact or circumstance that results in Applicable Law or changes reasonably would be expected to result in generally accepted interpretation an indemnified Loss or application a Third-Party Claim for which the Indemnifying Party may have Liability to such Indemnified Party, such Indemnified Party shall notify the Indemnifying Party promptly and implement such reasonable actions as the Indemnifying Party shall request in writing for the purposes of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsmitigating the possible Losses arising therefrom.
Appears in 2 contracts
Sources: Contribution Agreement (Spectra Energy Corp.), Contribution Agreement
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out Subject to the last sentence of any breach or inaccuracy Section 9.4(d), the aggregate amount the Apotex Indemnified Parties, as a group, may recover under Section 9.2(b) (other than in respect of any the Cumberland Fundamental Company Representations, the Cumberland Sufficiency Representations or any and the representations set forth in Section 5.16 (Taxes)) shall be limited to a dollar amount equal to ten percent (10%) of the Purchase Price (the “General Cap”). Notwithstanding anything to the contrary set forth herein, the foregoing provisions of this Section 9.4(a) will not apply in respect of claims for breach of any covenant Cumberland Fundamental Representations, the Cumberland Sufficiency Representations or the representations set forth in Section 5.16 (Taxes)); provided, that in no event shall the aggregate liability of Cumberland in respect of claims for indemnification pursuant to Section 9.2(b) and Section 9.2(c) exceed the Purchase Price, subject to the last sentence of Section 9.4(d).
(b) Subject to the last sentence of Section 9.4(d), the aggregate amount the Cumberland Indemnified Parties, as a group, may recover under Section 9.3(b) shall be limited to a dollar amount equal to the General Cap. Notwithstanding anything to the contrary set forth herein, in no event shall the aggregate liability of Apotex in respect of claims for indemnification pursuant to Section 9.3(b) and Section 9.3(c) exceed the Purchase Price, subject to the last sentence of Section 9.4(d).
(c) The amount of any Losses for which either Cumberland or Apotex, as the case may be, is liable under this Article IX shall be reduced by any amounts an Indemnified Party actually received (net of any costs of recovery, taxes and increased premiums) from any Third Party (whether before or after the Indemnifying Party shall have made a payment to any Indemnified Party hereunder), and the Indemnified Party shall promptly notify the Indemnifying Party and provide such information as the Indemnifying Party may require relating to any such recovery by the Indemnified Party in connection therewith. In any case where an Indemnified Party recovers any amount contemplated by the immediately preceding sentence in respect of a matter for which such Indemnified Party was previously indemnified pursuant to this Article IX, in each case to the extent not already taken into account pursuant to this Section 9.4, such Indemnified Party shall promptly (and in any event within ten (10) Business Days after receipt)) pay over to the applicable Indemnifying Party an amount equal to the amount which, had such insurance or other recovery been made by such Indemnified Party prior to being indemnified hereunder, such Indemnified Party would not have been entitled to receive from the Indemnifying Party pursuant to the terms of the Company immediately preceding sentence (net of any costs of recovery, taxes and increased premiums), but not in excess of the sum of any amount previously so paid to or on behalf of such Indemnified Party in respect of such matter.
(d) Subject to the last sentence of this Section 9.4(d), from and after the Closing, the rights of the Apotex Indemnified Parties and the Cumberland Indemnified Parties under this Article IX shall be wholly barred the sole and unenforceable unless a written notice exclusive remedy of claim the Apotex Indemnified Parties and the Cumberland Indemnified Parties, as the case may be, with respect to any and all matters arising out of, related to or in accordance connection with Section 9.03 or Section 9.04 is delivered by this Agreement and the Glencore Indemnitee to Transactions. In furtherance of the Company on or prior to foregoing, from and after the latest date permitted by applicable law (or Closing, except in the case of Fraud, each Party (on behalf of itself and its Affiliates) hereby waives, to the covenants fullest extent permitted by Law, any and all rights, claims and causes of action such Party may have against the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach other Parties or inaccuracy of any of the representations and warranties of the Company contained in their respective Affiliates arising under or based upon this Agreement, other than pursuant to this ARTICLE IX or any right or permitted claim under the Fundamental Company RepresentationsTransition Services Agreement. Notwithstanding anything in this Agreement to the contrary, (i) nothing in this Agreement shall limit the liability of, and this Article IX shall not be the sole and exclusive remedy of, any Person in connection with any claim of Fraud and (ii) nothing in this Agreement shall be wholly barred and unenforceable unless deemed a written notice of waiver by any Party of, or any limitation on, any right or permitted claim in accordance with Section 9.03 or Section 9.04 is delivered by under the Glencore Indemnitee to the Company within 12 months of the date of this Transition Services Agreement.
(2e) Notwithstanding No Indemnifying Party shall be obligated to indemnify any Indemnified Party with respect to claims under Section 9.2(b) or Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii9.3(a) unless and until the aggregate amount of Losses from all Losses claims under Section 9.2(b) or Section 9.3(a), as applicable, exceeds $[Redacted - Commercially sensitive information] 1,000,000 in the aggregate (the “Deductible”), and then only to the extent such aggregate amount exceeds the Deductible. In addition, no Indemnified Party shall be entitled to recover for any Losses under Section 9.2(b) or Section 9.3(a) that arises from any individual item, occurrence or circumstance or related group of events thereof unless and until the amount of all Losses resulting from such excess; and individual item, occurrence or circumstance or related group of events thereof exceeds $50,000 (b) the Company's maximum liability under Section 9.01 “De Minimis Threshold”), but any Losses below the De Minimis Threshold shall not exceed $[Redacted - Commercially sensitive information] in be taken into account for purposes of determining whether the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the CompanyDeductible has been exceeded.
(4f) Notwithstanding anything Neither the Apotex Indemnified Parties nor the Cumberland Indemnified Parties shall be entitled to recover for the contrary in same Loss more than once under this Agreement, the Company shall not be liable Article IX or otherwise under this Agreement (or any other Transaction Document) even if a claim for indemnification or otherwise in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that of such Loss arises has been made as a result of a failure by Glencore to comply with breach of more than one covenant, agreement or representation or warranty contained in this Agreement (or any of its obligations under this Agreement;other Transaction Document).
(dg) For purposes of this Article IX only, when determining whether or not a breach of any representation or warranty has occurred and for the purposes of calculating the amount of any Loss arising therefrom that is subject to indemnification hereunder, the determination of such breach of a representation or warranty or such Loss shall be deemed to be made without (and regardless of whether otherwise qualified by or limited in scope as to) any changes materiality or Material Adverse Effect or similar qualification or limitation; provided, however, that, notwithstanding the foregoing, the words materiality, Material Adverse Effect or similar qualification shall not be ignored with respect to the word “Material” in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsthe defined term “Material Contracts.”
Appears in 2 contracts
Sources: Asset Purchase Agreement (Cumberland Pharmaceuticals Inc), Asset Purchase Agreement (Cumberland Pharmaceuticals Inc)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company No amounts shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused payable as a result of fraud may be brought at Losses from any time on claim arising pursuant to this Agreement unless such Losses exceed $25,000 (any claim involving Losses equal to or prior less than such amount being referred to the latest date permitted by Applicable Law.
(3as a “De Minimis Claim”) Notwithstanding or any other provision of claim arising under this Agreement: (a) the Company shall not be liable Agreement relating to any Glencore Indemnitee in respect of any a breach or alleged breach of any a representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the Buyer Indemnified Parties have suffered, incurred, sustained or become subject to Losses referred to in this Agreement in excess of $500,000 in the aggregate amount of (not taking into account any De Minimis Claims), in which case the Buyer Indemnified Parties may bring a claim for all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent in excess of such excess; and amount. Nothing in the preceding sentence shall apply to, or in any way limit the obligations of, an Indemnifying Party (a) under Section 12.05 to pay all reasonable defense costs in respect of third-party claims, (b) with respect to any Excluded Liabilities of which Judbury is the Company's maximum liability obligor or (c) any and all Employment Liabilities arising from or incurred by reason of any claims made under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; Transfer Regulations, or otherwise, by any Irish Employee against the Buyer Indemnified Parties, provided however that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding notwithstanding anything to the contrary in this Agreement, no amount shall be payable in connection with pre-closing breaches of covenants until Losses resulting from pre-closing breaches of covenants exceed $25,000, in which case the Company Buyer Indemnified Parties may bring a claim for the full extent of such Losses. The maximum collective liability of the Sellers and the Indemnifying Entity under this Agreement shall not exceed 10% of Purchase Price in the aggregate (the “Indemnity Amount”). No amounts shall be payable as a result of any De Minimis Claims or any claim arising under Section 12.02 unless and until the Seller Indemnified Parties have suffered, incurred, sustained or become subject to Losses referred to in this Agreement in excess of $500,000 in the aggregate (not taking into account any De Minimis Claims), in which case the Seller Indemnified Parties may bring a claim for all Losses in excess of such amount and the maximum liability of the Buyer under this Agreement shall not exceed the Indemnity Amount. Notwithstanding the foregoing, the maximum collective liability of the Sellers and the Indemnifying Entity with respect to any claim for indemnity based on any of Sections 4.01, 4.02, 4.05, 4.06, 6.01, 6.02, 6.03, 6.18, 6.19(a), 7.01, 7.02, 7.05, and 8.01 (c), (f) and (o) or any Excluded Liability shall not be liable under this Agreement in respect of:
(a) the Indemnity Amount but shall not exceed the Purchase Price. Notwithstanding the foregoing, the De Minimis Claim limitation set out above shall not apply to any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;Air France Reduction.
(b) An Indemnifying Party is not liable to an Indemnified Party for any claim under or in relation to or arising out of this Agreement including a breach of a representation or warranty (a) to the extent that the claim arises or is increased as a result of any change in applicable accounting standards after June 30, 2011 or any change in accounting policies applied on or after June 30, 2011 from those used by a party before the date of this Agreement and (b) if the claim is as a result of or in respect of any law or regulation not in force at the date of this Agreement (including any legislation or regulation which takes effect retrospectively and (c) to the extent that the claim or Loss which in relation to the claim is contingent unless and until remediable, provided it is remedied to the satisfaction of the Indemnified Party, acting reasonably, within 60 days after the Indemnifying Party receives written notice of the claim in accordance with Section 12.05(a), provided that to the extent any such contingent Loss becomes an actual Loss that is due and payable;60 day remedy period begins after the 12th month of the relevant 18 month survival period for the relevant representation, warranty or covenant, the remaining six month survival period shall be tolled for such remedy period.
(c) Where an Indemnified Party is or may be entitled to recover from some other person any Loss sum, including by way of contract, indemnity, under a policy of insurance or otherwise, in respect of any matter or event which could give rise to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations claim under this Agreement;, the Indemnified Party must use its reasonable endeavors to recover that sum before making the claim, keep the Indemnifying Party informed of the conduct of such recovery; and reduce the amount of any subsequent claim against the Indemnifying Party for the same or similar Loss by the amount recovered, provided, however, this provision shall not apply to representation and warranty insurance obtained by the Buyer, if any. If the recovery is delayed until after the claim has been paid by the Indemnifying Party, the recovered amount must be paid to the Indemnifying Party after deduction of all reasonable costs and expenses of the recovery.
(d) An Indemnified Party must take all reasonable action to mitigate any changes Loss suffered for which a claim could be made. Nothing in Applicable Law this Agreement restricts or changes in generally accepted interpretation limits any general obligation at law to mitigate any Loss or application of Applicable Law; ordamage. If an Indemnified Party does not comply with this obligation where such compliance would have mitigated the Loss, the Indemnifying Party will not be liable for the amount by which the Loss would have been reduced.
(e) The sole remedies of the Buyer Indemnified Parties in connection with the sale and purchase of the Capital Interests, Loan Notes and Aviation Loans will be as set out in this Agreement.
(f) Each of the parties to this Agreement acknowledges, and represents and warrants to each other party that is has neither made nor given, nor relied upon, any changes representation, warranty, promise or undertaking, statement or conduct in Applicable Accounting Standards entering into or generally accepted interpretation agreeing to the terms and conditions of this Agreement except those representations and warranties as expressly set out in this Agreement and except as set forth herein, the Sellers are selling the Companies on an “as is, where is basis” and to the fullest extent allowed by law, disclaim all other warranties, representations and guarantees, whether express or application implied.
(g) Except with respect to Losses actually awarded or otherwise payable by any Indemnified Party pursuant to a third party claim brought against an Indemnified Party, no Indemnified Party shall be entitled to indemnification pursuant to this Article 12 for lost profits, punitive damages, exemplary damages, special damages or similar damages (including damages calculated as or based on a multiple of Applicable Accounting Standardsearning or lost proceeds or profits or similar methodology).
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Fly Leasing LTD)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee Notwithstanding anything to the Company on contrary contained herein, no Buyer Indemnified Party or prior to the latest date permitted by applicable law (or in the case of the covenants of the CompanySeller Indemnified Party, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representationsas applicable, shall be wholly barred entitled to be indemnified pursuant to Section 6.1(a)(i) and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.6.2(a)(i):
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses for which the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, would, but for this paragraph (i), be entitled to indemnification hereunder exceeds on a cumulative basis $[*] (the “Indemnity Threshold”), at which point each Buyer Indemnified Party or Seller Indemnified Party, as applicable, shall be entitled to be indemnified for the aggregate of all Losses in excess of the Indemnity Threshold; and
(ii) unless the amount of an individual claim for Losses under Section 6.1(a)(i) or Section 6.2(a)(i) (aggregating all claims and Losses arising from substantially the same or similar facts as applicable to each of Section 6.1(a)(i) or Section 6.2(a)(i), as applicable) exceeds $[Redacted - Commercially sensitive information] *], and then only to no such claim shall be applied toward the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct ClaimIndemnity Threshold;
(b) provided, however, that the foregoing provisions of Section 6.3(a) shall not apply with respect to any Loss which is contingent unless act of fraud or any breach of or inaccuracy in the representations and until such contingent Loss becomes an actual Loss that is due and payable;warranties set forth in Sections 3.1, 3.2(a), or 3.13 (the “Specified Representations”).
(c) Other than in the case of any Loss act of fraud (in which case the Buyer Indemnified Parties’ and the Seller Indemnified Parties’ rights shall not be limited by anything set forth in this Article VI to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations contrary), in no event shall the aggregate amount for which Buyer Indemnified Parties or Seller Indemnified Parties shall be indemnified and held harmless under this Agreement;Article VI exceed $[*] (the “Cap”).
(d) The amount of any changes in Applicable Law Losses payable pursuant to this Article VI shall be reduced to reflect any amount actually recovered by the Indemnified Party from a Third Party, including any insurance provider (less the cost to collect or changes in generally accepted interpretation recover such amount). If the Indemnified Party realizes any such amount after the date on which a payment pursuant to this Article VI has been made to the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party equal to such amount; provided that such payment shall not exceed the amount of the payment made to the Indemnified Party pursuant to this Article VI. For the avoidance of doubt, this Section 6.3(b) shall not be construed to apply to any amounts recovered from any self insurance, captive insurance vehicle, or application of Applicable Law; orother similar arrangement.
(e) To the extent that a Tax Benefit due to any changes Loss actually is realized by an Indemnified Party due to Losses in Applicable Accounting Standards the same taxable year in which such Indemnified Party received a payment pursuant to Section 6.1 or generally accepted interpretation Section 6.2, as applicable, for such Loss, the Indemnified Party shall reimburse the Indemnifying Party the amount of such Tax Benefit within a reasonable time after the Tax Return reflecting such Tax Benefit is filed with the applicable taxing authority; provided that such calculation shall be a one-time determination by the Indemnified Party in connection with such Tax filing and shall not be subject to re-calculation or application further claim for reimbursement by the Indemnifying Party thereafter. For purposes of Applicable Accounting Standards.this Section 6.3(e), a “Tax Benefit” means an amount by which the Tax liability of the Indemnified Party actually is reduced by a deduction, reduction of income, or a refund or credit, in other words the difference between (A) the aggregate amount of Taxes that the Indemnified Party would have been required to pay for the relevant Tax year if such Loss had not been incurred and
Appears in 2 contracts
Sources: Asset Purchase Agreement (Cerecor Inc.), Asset Purchase Agreement (Cerecor Inc.)
Limitations. (1) Notwithstanding any other provision of this Agreement:
The indemnification obligations are subject to the following limitations: (a) any Claim no indemnification shall be payable to a Parent Indemnified Party pursuant to Section 6.2(a) until the aggregate amount of Losses indemnifiable thereunder exceeds Twenty-Five Thousand Dollars ($25,000) (the “Deductible”), at which point the Holders shall be liable for all such Losses from the first dollar; provided, however, that the Deductible shall not apply to Losses arising out of any breach or inaccuracy of any Fundamental Representation, any IP Representation, any tax representation, the Fundamental Company Representations representation in Section 3.10 (No Interest in Parent), Fraud, intentional misrepresentation, or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(bSections 6.2(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: through (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess); and (b) the Company's maximum aggregate liability of the Holders under Section 9.01 6.2(a) (other than with respect to Fundamental Representations, IP Representations, tax representations, Section 3.10, Fraud, intentional misrepresentation, and Sections 6.2(b) through (i)) shall not exceed twenty-five percent (25%) of the Merger Consideration (the “General Cap”). The aggregate liability of all Holders collectively under all other provisions of Section 6.2 (other than Fraud, intentional misrepresentation or willful breach, as to which no cap applies) shall not exceed the aggregate Stated Value of the Merger Consideration ($[Redacted - Commercially sensitive information] 20,000,000), and each Holder shall be severally liable, and not jointly, for its pro rata share of any such capped amount based on the Merger Consideration allocations under Section 2.4 (sixty-two and one-half percent (62.5%) allocable to Oncotelic and thirty-seven and one-half percent (37.5%) allocable to Pelerin); provided, however, that, consistent with the final sentence of Section 6.2, any inaccuracy in or breach by a Holder of any representation, warranty, covenant or other obligation that such Holder has expressly made or undertaken “severally and solely as to itself” (including the aggregate; provided that representations and warranties of such Holder set forth in Sections 3.10, 3.11, 3.11A and 3.12) shall be recoverable solely from the foregoing breaching Holder up to the aggregate Stated Value of such breaching Holder’s Consideration Shares, and shall not give rise to any liability of any other Holder. For the avoidance of doubt, no Holder shall be jointly and severally liable for the indemnification obligations of any other Holder under this Article VI. Notwithstanding the foregoing, the limitations set forth in this Section 6.4 shall not apply in the case to (i) Losses arising out of fraud by the Company.
Fraud, intentional misrepresentation or willful breach (4which are not subject to any cap, basket or other limitation), or (ii) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
Losses arising out of Section 6.2(i) (aNasdaq/SEC delisting or enforcement) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent caused by Fraud, intentional misrepresentation or willful breach, which shall likewise be uncapped. For all purposes of this Article VI (including the calculation of the General Cap, the calculation of any Holder’s maximum aggregate liability, and the forfeiture, cancellation, set-off and other recovery mechanics set forth in Section 6.5), each Consideration Share shall be valued at the Stated Value per share set forth in Section 2.2, without regard to the then-current fair market value, trading price, or any other valuation thereof, and the Parties irrevocably agree that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsvaluation is conclusive and binding for all such purposes.
Appears in 2 contracts
Sources: Merger Agreement (Oncotelic Therapeutics, Inc.), Merger Agreement (Lunai Bioworks Inc.)
Limitations. (1i) Notwithstanding any other provision of this Agreement:
Section 12 (other than the provisions set forth below in this Section 12(f)), (a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company no amount shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered payable by the Glencore Indemnitee Majority Stockholder, on the one hand, and the Buyer, on the other hand, under this Section 12 for Loss, except to the Company on or prior to extent the latest date permitted by applicable law (or in aggregate amount payable under this Section 12 exceeds $100,000, after which, such parties, as the case may be, will be entitled to payment for the entire Loss and not only for the Loss in excess of $100,000 (the covenants of the Company, such shorter period expressly specified therein); and
"Basket") and (b) any Claim under no circumstances shall the Majority Stockholder's indemnification obligations for Losses, as defined in this Section 12, exceed $3,200,000 (the "Cap"). Loss shall count towards the Basket regardless of which persons (other than Buyer's) breach gave rise to such Loss.
(ii) For the purpose of clarification, the foregoing limitations on indemnification in Section 12(f)(i) shall not apply to Loss arising out of any breach or inaccuracy from (A) intentional and knowing breaches of any of the representations and warranties warranties, (B) intentional and knowing breaches of any covenant and/or (C) a breach of the Company contained representations and warranties set forth in this AgreementSections 4(c)(i) (Ownership of Shares), other than 4(g) (Taxes), 4(o) (Restrictions), 4(t) (Employee Benefits) and 4(x) (Environmental Matters) and the Fundamental Company Representations, Buyer shall be wholly barred entitled to payment for the entire Loss arising from the foregoing and unenforceable unless a written notice of claim not only the Loss in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months excess of the date of this AgreementBasket (any such Loss arising from Section 12(f)(ii)(A) and/or (B) and/or directly from the Sections identified in Section 12(f)(ii)(C), collectively an "Unrestricted Loss"). Unrestricted Losses shall not be applied against the Basket and shall not reduce the Cap.
(2iii) Notwithstanding anything set forth in this Section 9.02(1)12 to the contrary, (i) the Majority Stockholder shall not be liable to the Buyer for any Claim arising out additional Losses solely and directly attributable to the application of any breach or inaccuracy multiple of lost earnings and (ii) any representation or warranty uncollectible amount on the ESOP acquisition loan in respect the original principal amount of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior $3,000,000 payable by the ESOP to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in considered a Loss. By executing this Agreement, Buyer and the Company shall not be liable under this Agreement in respect of:
(a) hereby release and discharge the Majority Stockholder from any consequential, special, indirect, multiple-of-profit express or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until implied guaranty of such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsESOP acquisition loan.
Appears in 1 contract
Sources: Stock Purchase Agreement (Wireless Telecom Group Inc)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out None of an Indemnified Person, a Purchaser's Indemnified Person or a Company's Indemnified Person shall be entitled to indemnification with respect to the breach of any representation, warranty, covenant or agreement under this Article X beyond the survival period, except for claims for which notice of a claim for indemnity (which notice alleges with reasonable specificity the facts and circumstances of such claim) shall have been given within the survival period set forth in Section 12.01.
(b) Except in the case of a breach of a representation or inaccuracy warranty made by the Company in Section 4.02(a) or by any of the Stockholders in Section 5.01 or 5.03 of this Agreement and except in the case of fraud or intentional misrepresentation, the Liability of any the Fundamental Company Representations or Stockholder for any breach of any representation, warranty, covenant or agreement contained in this Agreement pursuant to Section 10.01(a) shall not exceed, in the aggregate, 10% of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance Merger Consideration with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee respect to the Company on or prior to the latest date permitted by applicable law such Stockholder.
(or c) Except in the case of a breach of a representation or warranty made by the covenants of the Company, such shorter period expressly specified therein); and
(bCompany in Section 4.02(a) any Claim arising out of any breach or inaccuracy of by any of the representations and warranties of the Company contained Stockholders in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 5.01 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date 5.03 of this Agreement.
(2) Notwithstanding Section 9.02(1)Agreement and except in the case of fraud or intentional misrepresentation, no claim may be made against any Claim arising out Stockholder for indemnification for any breach of any breach representation, warranty, covenant or inaccuracy of any representation or warranty in agreement pursuant to Section 10.01(a) with respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect individual item of Loss, unless the aggregate dollar amount of all claims for indemnification for any breach of any representation or warranty of the Company or any covenant or agreement contained in this Agreement: Agreement pursuant to Section 10.01(a) shall exceed $5,000,000, in which case the Stockholders shall be liable for claims for indemnification only to the extent such aggregate amount exceeds $2,500,000.
(d) Notwithstanding anything herein to the contrary, (i) for any individual claim in no event shall the aggregate Liability of the Purchaser and Merger Sub under this Article X exceed 10% of the Merger Consideration (or series of related claimsthe "LOSS CEILING") for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until neither the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 Purchaser nor Merger Sub shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) have any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its further obligations under this Agreement;
(d) any changes Article X at the time when the Purchaser has paid indemnification hereunder in Applicable Law or changes amounts equal in generally accepted interpretation or application of Applicable Law; orthe aggregate to the Loss Ceiling.
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsThe Stockholders and the Purchaser agree to treat all payments made under this Article X as adjustments to the Purchase Price for Tax purposes.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Newfield Exploration Co /De/)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach Notwithstanding anything to the contrary herein, other than for claims asserting Fraud or inaccuracy of any the Fundamental Company Representations or any breach of any covenant Fundamental Representation, and subject to the provisions of Section 10.14, the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company Equityholders shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (iiunder Section 7.1(a) unless and until the aggregate amount Losses under Section 7.1(a) for which they or it would otherwise be liable under this Article VII exceed $250,000 (the “Deductible Amount”) at which point the Company 57 Equityholders shall become liable for all such Losses in excess of all Losses exceeds $[Redacted - Commercially sensitive information] and then only the Deductible Amount, subject to the extent of such excess; and other limitations set forth in this Section 7.5.
(b) Other than for claims asserting Fraud, the Company's maximum liability Escrow Agreement shall be the exclusive means for the Buyer to collect any Losses for which it is entitled to indemnification under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate7.1(a) from any Company Equityholder; provided provided, that the foregoing limitations shall not apply in the case of fraud a breach of any Fundamental Representation, the exclusive means for the Buyer to collect any such Losses for which it is entitled to indemnification under Section 7.1(a) shall be the Escrow Agreement together with the rights of Buyer under Section 7.6. Other than for claims asserting Fraud, the Escrow Agreement together with the rights of Buyer under Section 7.6 shall be the exclusive means for the Buyer to collect any Losses for which it is entitled to indemnification under Section 7.1(b) through Section 7.1(m) from any Company Equityholder. In the case of claims asserting Fraud, and except as set forth in Section 7.5(c) or in Section 7.5(h), each Company Equityholder shall be liable, severally and not jointly up to such Company Equityholder’s Pro Rata Share of the amount of Losses payable by the CompanyCompany Equityholder to the Buyer; provided, that, except as set forth in Section 7.5(h), the amount of Losses recoverable from any Company Equityholder under Section 7.1 as of any time shall not exceed such Company Equityholder’s Transaction Proceeds as of such time.
(4c) To the extent a claim for indemnification under Section 7.1 is satisfied from the available General Escrow Fund or by set-off pursuant to Section 7.6, the liability of the Company Equityholders shall be joint and several.
(d) Subject to the provisions of Section 7.5(h) and Section 10.14, from and after the Closing, the remedies set forth in this Article VII shall be the exclusive remedies of the Parties with respect to the transactions contemplated by this Agreement.
(e) No Company Equityholder shall have any right of contribution against the Company or the Surviving Corporation with respect to any breach by the Company of any of its representations, warranties, covenants or agreements.
(f) Notwithstanding anything to the contrary in this Agreement, for purposes of determining (i) whether there has been a breach of any representation or warranty set forth in Article II or the Company shall not Closing Certificate and (ii) the amount of Losses for which Buyer may be liable entitled to indemnification under this Agreement Article VII, each such representation or warranty (other than the representations and warranties set forth in Section 2.7 and in Section 2.30) shall be deemed to have been made without any qualifications or limitations as to materiality (including any qualifications or limitations made by reference to a Company Material Adverse Effect).
(g) Payments by Company Equityholders pursuant to Section 7.1 in respect of: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 similar payment actually received by the Indemnified Party in respect of any such claim, net of any costs of collection and increase in insurance premiums.
(ah) Notwithstanding anything to the contrary in this Agreement (including Section 2.31 and this Section 7.5), nothing in this Agreement shall limit the Buyer’s rights or remedies under Section 10.14 or the Buyer’s rights or remedies or the liability of any consequential, special, indirect, multiple-of-profit or punitive damages or Losses Company Equityholder in claims asserting (i) Fraud on the part of such Company Equityholder in connection with a Direct Claim;the transactions contemplated by this Agreement or (ii) the breach of any covenant or agreement of such Company Equityholder set forth in any Ancillary Agreement that is to be performed after the Closing, it being understood that no Company Equityholder shall be liable for (x) any Fraud of any other Company Equityholder in connection with the transactions contemplated by this Agreement (except as otherwise provided under Section 7.1(m) and subject to the limitations in Section 7.5(b)) or (y) the breach of any covenant or agreement of any other Company Equityholder set forth in any such Ancillary Agreement that is to be performed after the Closing.
(bi) In no event shall any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) Company Equityholder be liable to the Buyer for any Loss punitive damages, except to the extent that such Loss arises as paid or payable to a result of a failure by Glencore to comply with any of its obligations under this Agreement;third party.
(dj) The Buyer shall use commercially reasonable efforts to mitigate any changes in Applicable Law Loss upon becoming aware of any event or changes in generally accepted interpretation circumstance that would be reasonably expected to, or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsdoes, give rise thereto.
Appears in 1 contract
Sources: Agreement and Plan of Merger
Limitations. (1) Notwithstanding For purposes of calculating Losses subject to indemnification under Section 4.14 and this Article VI, any other provision of this Agreement:
(a) any Claim arising out of any breach “materiality,” or inaccuracy of any “Seller Material Adverse Effect” or “Purchaser Material Adverse Effect” qualifications in the Fundamental Company Representations or any breach of any covenant of the Company representations, warranties, covenants and agreements shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company disregarded. Seller Parent shall not be liable to the Purchaser Indemnitees pursuant to Section 6.02(a)(1) until the Losses with respect to the matters contemplated by such Section exceed an aggregate amount equal to $5,000,000 dollars (the “Deductible”), in which case, Seller Parent shall be liable for all Losses with respect to such matters in excess of the Deductible, up to an aggregate maximum amount payable equal to $100,000,000 dollars (the “Indemnity Cap”); provided, that, to the extent that any Glencore Indemnitee in Loss with respect of any to such matters arises out of, results from or relates to a breach of any representation Fundamental Representation made by Seller Parent or warranty of fraud, neither the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless Deductible nor the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 Indemnity Cap shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company apply. Purchaser Parent shall not be liable under this Agreement to the Seller Indemnitees pursuant to Section 6.02(b)(1) until the Losses with respect to such matters exceed the Deductible, in which case, Purchaser Parent shall be liable for all Losses with respect of:
(a) any consequentialto such matters in excess of the Deductible, specialup to an aggregate maximum amount payable equal to the Indemnity Cap; provided, indirectthat, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such any Loss arises as out of, results from or relates to a result breach of a failure any Fundamental Representation made by Glencore Purchaser Parent or fraud, neither the Deductible nor the Indemnity Cap shall apply. For the avoidance of doubt, the Deductible and Indemnity Cap shall not apply to comply any Losses with any of its obligations under respect to Taxes, which are covered by Section 4.14. In addition to the other limitations set forth in this Agreement;
(dSection 6.02(c), in no event shall Seller Parent’s maximum aggregate Liability for all Losses pursuant to Sections 4.14 and 6.02(a) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsexceed the Purchase Price.
Appears in 1 contract
Sources: Merger Agreement (Cit Group Inc)
Limitations. (a) The Escrow Agreement is intended to secure the indemnification obligations of the Principal Stockholders under this Agreement. However, the rights of the Buyer under this Article 6 shall not be limited to the Escrow Shares nor shall the Escrow Agreement be the exclusive means for the Buyer to enforce such rights.
(1) Notwithstanding the foregoing or anything contained herein to the contrary, the Buyer hereby agrees that it shall seek satisfaction of the indemnification obligations of the Principal Stockholders under this Article 6 (other than with respect to such Principal Stockholder's fraud) strictly in accordance with the following clauses (i) through (iv) below, provided that (I) the Buyer shall not attempt to collect any Damages directly from the Principal Stockholders unless there are no remaining Escrow Shares held in escrow pursuant to the Escrow Agreement, (II) the Principal Stockholders shall not have any liability for any Damages in excess of the amount of the Indemnity Cap (as defined below) or in excess of the percentages set forth in clauses (i) through (iv) below, except as set forth in Section 6.5(c) below, and (III) the liability of the Principal Stockholders shall be joint and several; provided, however, that a Principal Stockholder shall not be liable for any other provision Principal Stockholder's fraud, misrepresentation, breach of a warranty made by such other Principal Stockholder or failure to perform any covenant or agreement of such other Principal Stockholder contained in this Agreement, the Ancillary Agreements or the Company Certificate, except that this proviso shall not apply as between FrontLine and RSI ESO:
(ai) any Claim arising out the first two million dollars ($2,000,000) of any breach or inaccuracy Damages such amount to be reduced by the Excess RIF Expenses and the Excess Company Expenses (collectively, the "Purchase Price Adjustment"), if any), up to a maximum of any $2,000,000) (the Fundamental Company Representations or any breach "First Tier Indemnification") shall be borne 65% by FrontLine, 17.5% by H. ▇▇▇▇▇ ▇▇▇▇ ("▇▇▇▇") and 17.5% by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ("Cooperstone");
(ii) the next two million dollars ($2,000,000) of any covenant Damages in excess of the Company First Tier Indemnification (the "Second Tier Indemnification") shall be wholly barred borne 50% by ▇▇▇▇ and unenforceable unless a written notice 50% by Cooperstone (and no payment therefore or contribution thereto shall be made by FrontLine);
(iii) the next four million ($4,000,000) of claim Damages in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case excess of the covenants of First Tier Indemnification and the Company, such shorter period expressly specified thereinSecond Tier Indemnification (the "Third Tier Indemnification") shall be borne 100% by FrontLine (and no payment therefore or contribution thereto shall be made by ▇▇▇▇ or ▇▇▇▇▇▇▇▇▇▇▇); and
(biv) any Claim arising out of any breach or inaccuracy of any Damages in excess of the representations First Tier Indemnification, the Second Tier Indemnification and warranties of the Company contained in this Agreement, other than Third Tier Indemnification (the Fundamental Company Representations, "Fourth Tier Indemnification") shall be wholly barred borne 67% by FrontLine, 16.5% by ▇▇▇▇ and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered 16.5% by the Glencore Indemnitee to the Company within 12 months of the date of this AgreementCooperstone.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty Escrow Property (as defined in respect of which indemnity the Escrow Agreement) that may be sought that was caused as a result distributed from the escrow in satisfaction of fraud may be brought at any time on or prior indemnification claims under this Article 6 shall reflect the indemnification allocation structure set forth above up to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty full amount of the Company Escrow Property. The Principal Stockholders shall contribute Merger Shares to the escrow as follows and in this Agreement: the following order, provided that in no event shall the Principal Stockholders contribute in the aggregate more than 10% of the total Merger Shares into escrow:
(i) for first, ▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ shall each contribute 50% of that number of Merger Shares as shall equal the quotient of (A) product of (x) 35% multiplied by (y) the difference between (1) $2,000,000 less (2) the Purchase Price Adjustment, if any individual claim (or series up to a maximum of related claims$2,000,000), divided by (B) for Losses the Average LOI Price unless the amount Average Announcement Price is greater than 120% of Losses or less than 80% of the Average LOI Price, in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and which case it shall be the Average Announcement Price;
(ii) unless and until second, FrontLine shall contribute that number of Merger Shares as shall equal the aggregate amount quotient of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (bA) the Company's product of (x) 65% multiplied by (y) the difference between (1) $2,000,000 less (2) the Purchase Price Adjustment, if any (up to a maximum liability under Section 9.01 of $2,000,000), divided by (B) the Average LOI Price unless the Average Announcement Price is greater than 120% of or less than 80% of the Average LOI Price, in which case it shall not exceed $[Redacted - Commercially sensitive information] in be the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct ClaimAverage Announcement Price;
(biii) third, ▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ shall each contribute 50% of that number of Merger Shares, if any, as shall equal the quotient of (A) the amount (the "Third Tier Difference Amount") equal to the difference between (x) the Ten Percent ATMC Amount (as defined below) less the difference between (1) $2,000,000 less (2) the Purchase Price Adjustment, if any Loss (up to a maximum amount of $2,000,000), such Third Tier Difference Amount being limited to a maximum of $2,000,000, divided by, (B) the Average LOI Price unless the Average Announcement Price is greater than 120% of or less than 80% of the Average LOI Price, in which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;case it shall be the Average Announcement Price; and
(civ) fourth, Frontline shall contribute that number of Merger Shares, if any, as shall equal the quotient of (A) the difference between (x) the Ten Percent ATMC Amount less the difference between (1) $4,000,000 less (2) the Purchase Price Adjustment, if any Loss (such amount being limited to a minimum of zero), divided by, (B) the extent that such Loss arises as a result Average LOI Price unless the Average Announcement Price is greater than 120% of a failure by Glencore to comply with any or less than 80% of its obligations under this Agreement;
(d) any changes the Average LOI Price, in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardswhich case it shall be the Average Announcement Price.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) Notwithstanding anything herein to the contrary, no Indemnifying Party shall be liable under this Article X for any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or Damages (other than any breach of Section 4.7(b)) until the aggregate amounts otherwise due any covenant of other party or parties entitled to indemnification hereunder exceeds Twenty Five Thousand Dollars ($25,000) in the Company aggregate (the "Indemnification Threshold"), in which case such Indemnifying Party will be liable to the Indemnified Party(ies) for the full amount due (including the amount below the Indemnification Threshold). The Stockholders as a group shall be wholly barred and unenforceable unless treated as a written notice single Indemnifying Party or other party, as the case may be, for purposes of claim this Section 10.5.
(b) Notwithstanding anything herein to the contrary, in no event will the maximum aggregate Liability of any Stockholder pursuant to his or her indemnification obligations hereunder exceed the greater of (i) an amount equal to such Stockholder's pro rata share (determined in accordance with Section 9.03 3.1 of the Cell-Matrix Disclosure Schedule) of $5,000,000 (Five Million U.S. Dollars) or Section 9.04 is delivered (ii) an amount equal to the lesser of (A) the Buyer Preferred Stock Price or (B) the fair market value of the Buyer Preferred Stock at the time of the claim for Damages, as determined in good faith by the Glencore Indemnitee to Board of Directors of Buyer, multiplied by the Company on or prior to the latest date permitted by applicable law number of shares of Buyer Preferred Stock constituting such Stockholder's pro rata share (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim determined in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months 3.1 of the date of this Agreement.
(2Cell-Matrix Disclosure Schedule) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the CompanyMerger Consideration.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss Notwithstanding anything herein to the extent that such Loss arises as a result contrary, in no event will the maximum aggregate Liability of a failure by Glencore Buyer or Merger Sub pursuant to comply with any of its indemnification obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardshereunder exceed an amount equal to the Merger Consideration.
Appears in 1 contract
Sources: Merger Agreement (Cancervax Corp)
Limitations. (1) Notwithstanding any other provision of anything in this Agreement:Agreement to the contrary,
(a) no party shall indemnify or otherwise be liable to any Claim arising out of other party with respect to any claim for any breach of a representation or inaccuracy of any warranty, or for the Fundamental Company Representations or any breach of any covenant of the Company shall to be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or performed prior to the latest date permitted by applicable law (or in the case Closing, unless notice of the covenants of the Company, such shorter period expressly specified therein); and
claim is given (bi) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any claim for a breach of any representation or warranty made in Section 3.1, Section 3.2, Section 3.6, Section 4.1, Section 4.3, Section 4.4, Section 4.6, Section 4.12, or Section 4.23, sixty days after the expiration of the Company in this Agreement: applicable statute of limitations (iincluding all periods of extension thereof) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by any other claim, within one year after the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct ClaimClosing Date;
(b) Sellers shall not be required to indemnify or otherwise be liable to any Loss which is contingent Buyer Indemnified Parties for any breach of a representation or warranty, or for the breach of any covenant to be performed prior to the Closing, unless and until the Losses suffered or incurred by all Buyer Indemnified Parties arising from all such contingent Loss becomes an actual Loss that is due and payablebreaches exceed in the aggregate $75,000;
(c) Buyer shall not be required to indemnify or otherwise be liable to any Loss Seller Indemnified Parties for any breach of a representation or warranty, or for the breach of any covenant to be performed prior to the Closing, unless the Losses suffered or incurred by all Seller Indemnified Parties arising from all such breaches exceed in the aggregate $75,000; and
(d) Sellers shall not be required to indemnify or otherwise be liable to any Buyer Indemnified Parties for any breach of a representation or warranty, or for the breach of any covenant to be performed prior to the Closing, to the extent that the Losses suffered or incurred by all Buyer Indemnified Parties arising from all such Loss arises as a result breaches (other than Losses for which the Buyer Indemnified Parties are not entitled to indemnification pursuant to the other provisions of a failure by Glencore to comply with any of its obligations under this Agreement;
(dSection 10.5) any changes exceed in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsthe aggregate $1,500,000.
Appears in 1 contract
Sources: Asset Purchase Agreement (Spectrasite Holdings Inc)
Limitations. (1a) Notwithstanding Subject to Section 10.12 and except with respect to claims made pursuant to Article VIII, from and after the Closing, the rights of the Indemnified Parties under this Article VI shall be the sole and exclusive remedies of the Indemnified Parties and their respective Affiliates with respect to claims resulting from any other provision breach of warranty or failure to perform any covenant or agreement contained in this Agreement or otherwise relating to the transactions that are the subject of this Agreement:
(a) . Subject to Section 10.12, from and after the Closing, the rights of Buyer and Seller under Article VIII shall be the sole and exclusive remedy of Buyer and Seller with respect to the subject matter of Article VIII. Without limiting the generality of the foregoing two sentences, in no event shall Buyer, its successors or permitted assigns be entitled to claim or seek rescission of the transactions consummated under this Agreement. Notwithstanding the foregoing or anything in this Agreement to the contrary, nothing contained in this Agreement shall relieve or limit the liability of any Claim Party or any officer or director of such Party from any liability arising out of any breach or inaccuracy of any resulting from common law fraud or intentional misrepresentation in connection with the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered transactions contemplated by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (this Agreement or in connection with the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy delivery of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee documents referred to the Company within 12 months of the date of this Agreementherein.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary contained in this Agreement, each of the Company following four limitations shall apply:
(i) the aggregate liability of Seller for all Damages under Section 6.1(a)(i) (other than on account of the breach of any Fundamental Representation) shall not exceed an amount equal to the Applicable Cap Amount;
(ii) the aggregate liability of Seller for all Damages under Article VI shall not exceed an amount equal to the Purchase Price;
(iii) no individual claim or series of claims related to a single event for indemnification under Sections 6.1(a)(i) or 6.2(a)(i) shall be valid and assertable unless it is (or they are) for an amount in excess of $50,000.00; and
(iv) Seller shall be liable under Section 6.1(a)(i) (other than on account of the breach of any Fundamental Representation) for only that portion of the aggregate Damages under such sections, considered together, which exceeds one percent (1%) of the Purchase Price (the “Deductible Amount”) (it being understood that Seller shall not be liable under this Agreement liable, in respect of:
(a) any consequentialevent, special, indirect, multiple-of-profit or punitive damages or for Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss up to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations Deductible Amount under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsSection 6.1(a)(i), considered together).
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Openwave Systems Inc)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in SECTION 11.2(a) or elsewhere in this Agreement:
(i) the Indemnitors shall have no liability (for indemnification or otherwise) with respect to the matters described in SECTION 11.2(a)(i)-(iii) hereof until the total of all Damages with respect to such matters exceeds 1.0% of the Indemnity Amount (the "Sellers' Threshold Amount"), and then only for the amount by which such Damages exceeds the Sellers' Threshold Amount, and the aggregate liability of the Indemnitors to the Buyer's Indemnified Persons in respect of matters described in SECTION 11.2(a)(i)-(iii) shall not in any event exceed 10% of the Indemnity Amount (the "Sellers' Indemnification Cap"), and in no event shall any Indemnitor be liable for an amount in excess of (x) such Indemnitor's Pro Rata Share of the Sellers' Indemnification Cap or (y) the amount of cash or securities such Indemnitor pledged or placed in escrow pursuant to SECTION 11.2(d) hereof;
(ii) none of the Sellers' Threshold Amount, the Company Sellers' Indemnification Cap, nor the limitations contained in clauses (x) or (y) of SECTION 11.2(b)(i) hereof shall not apply to Damages to be liable indemnified by a Seller to the extent arising from (x) such Seller's fraud, willful misconduct, bad faith or intentional misrepresentation or (y) any Breach (A) of any representation or warranty referenced in SECTION 11.1(a)(i) hereof or (B) by a Seller of any covenant or obligation of such Seller under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claimto be performed after the Closing;
(biii) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises Kitchener shall have no liability for indemnification solely as a result of a failure by Glencore Breach of SECTION 4.5 hereof to comply with the extent there is a Breach of SECTION 3.22(d)(ii) hereof; and
(iv) in no event shall any of its obligations Seller be liable under this Agreement;
(d) any changes SECTION 11 in Applicable Law or changes an aggregate amount in generally accepted interpretation or application excess of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardssuch Seller's Maximum Exposure.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out Notwithstanding anything to the contrary herein, (i) the aggregate liability of any breach each Indemnifying Stockholders for Damages under this Article VI shall not exceed 50% of the Value of the Merger Shares received by it or inaccuracy placed into escrow on its account and, (ii) the Indemnifying Stockholders shall not be liable under this Article VI unless and until the aggregate Damages for which they would otherwise be liable exceed $1,000,000 (at which point the Indemnifying Stockholders shall become liable for the aggregate Damages, and not just amounts in excess of any $1,000,000); provided that the Fundamental Company Representations or any limitation set forth in clause (ii) above shall not apply to a claim pursuant to Section 6.1(a) relating to a breach of any covenant the representations and warranties set forth in Sections 2.1, 2.2 or 2.3 (or the portion of the Company shall be wholly barred and unenforceable unless Certificate relating thereto) or to a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case breach of the covenants set forth in Section 4.8. For purposes solely of determining the amount of Damages pursuant to clause (ii) of the Companypreceding sentence, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the all representations and warranties of the Company contained in Article II (other than Section 2.34) shall be construed as if the term “material” and any reference to “Company Material Adverse Effect” (and variations thereof) were omitted from such representations and warranties.
(b) The Escrow Agreement is intended to secure the indemnification obligations of the Indemnifying Stockholders under this Agreement. However, other than the Fundamental Company Representations, rights of the Buyer under this Article VI shall not be limited to the Escrow Amount (as defined in the Escrow Agreement) but such rights shall be wholly barred and unenforceable limited as set forth in Section 6.4(a) as to the aggregate liability of the Indemnifying Stockholders, nor shall the Escrow Agreement be the exclusive means for the Buyer to enforce such rights; provided that (i) the Buyer shall not attempt to collect any Damages directly from the Indemnifying Stockholders unless a written notice there are no remaining Escrow Shares held in escrow pursuant to the Escrow Agreement, in which event the Buyer shall be entitled to receive payment of claim in accordance with Section 9.03 the Claimed Amount or Section 9.04 Agreed Amount, as is delivered applicable, by wire transfer or check, or collect from the Indemnifying Party such number of Merger Shares actually received by the Glencore Indemnitee Indemnifying Party having an aggregate Value equal to the Claimed Amount or Agreed Amount, as the case may be, and (ii) with respect to any claim pursuant to Section 6.1(b), such claim shall be paid first out of the Escrow Shares attributable to the Company within 12 months of the date of this AgreementStockholder liable thereunder.
(2c) Notwithstanding Section 9.02(1)Except with respect to claims based on fraud, any Claim arising out after the Closing, the rights of any breach the Indemnified Parties under this Article VI and the Escrow Agreement shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior relating to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company or failure to perform any covenant or agreement contained in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) No Indemnifying Stockholder shall have any changes in Applicable Law right of contribution against the Company or changes in generally accepted interpretation the Surviving Corporation with respect to any breach by the Company of any of its representations, warranties, covenants or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsagreements.
Appears in 1 contract
Limitations. (1a) Notwithstanding any other provision of this Agreement:
Agreement to the contrary, no party shall have any obligation to indemnify any person entitled to indemnity under this Article 5 or to pay damages in respect of contract claims arising under this Agreement or any other Transaction Document unless the persons so entitled to indemnity or recovery thereunder have suffered Losses in an aggregate amount attributable to all Claims and obligors in excess of Fifty Thousand Dollars (a$50,000) any Claim (the "THRESHOLD"), except claims arising out of from any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties contained in Section 2.21 (Taxes) shall not be subject to the Threshold. Once the aggregate amount of Losses exceeds the Threshold, persons entitled to recovery shall be entitled to recover the full amount of all Losses in excess of the Company contained Threshold. No person shall be entitled to indemnification under this Article 5 for Losses directly or indirectly caused by a breach by such person of any representation, warranty, covenant or other agreement set forth in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 Agreement or Section 9.04 is delivered by the Glencore Indemnitee any duty to the Company within 12 months of the date of this Agreementpotential Indemnitor.
(2b) Notwithstanding The maximum aggregate liability of the Members to Buyer on the one hand, and Buyer, on the other hand to the Members, for all claims arising under this Agreement and the other Transaction Documents shall equal the aggregate Purchase Price. For purposes of this Section 9.02(15.6(b), any Claim arising out the value of any breach or inaccuracy of any representation or warranty in respect of which indemnity may Shares received shall be sought that was caused as a result of fraud may be brought at any time on or (i) prior to the latest date permitted by Applicable Law.
IPO, the per share Agreed Price (3as defined in the Stockholder Agreement) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]then prevailing; and (ii) unless and until after the aggregate amount IPO, the per share closing price on the primary exchange or market on which the Common Stock is traded on the date such indemnifiable Losses become payable, except that the value of all Losses exceeds $[Redacted - Commercially sensitive information] and then only any Shares sold in bona fide third party transactions will be the gross proceeds to the extent Members of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Companysale.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.
Appears in 1 contract
Limitations. No claim under Section 621 may be made until the aggregate of all Losses for which claims for indemnification are made under such Section exceeds $100,000 (1) Notwithstanding the "Threshold"), but subject to limitations of this Section 6.3, all Losses in excess of the Threshold may be recovered under such Section once the Threshold has been exceeded. The amount of any Losses otherwise recoverable by the Parent shall be reduced by the amount of any Losses recovered by the Surviving Corporation or any other provision Parent Indemnified Parties with respect to the same claim, and the amount of this Agreement:
any Losses otherwise recoverable by the Surviving Corporation or any other Parent Indemnified Parties, pursuant to Section 6.2.1, shall be reduced by the amount of any Losses recovered by the Parent hereunder with respect to the same claim. The aggregate liability of the Shareholders under Sections 6.2.1(ii) and (iii) shall (i) be net of and reduced by (a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered cash amounts actually received by the Glencore Indemnitee Parent or the Surviving Corporation as insurance proceeds as the result solely of or relating to the Company on or prior claims giving rise to the latest date permitted by applicable law (or in the case of the covenants of the Companysuch Shareholder's liability, such shorter period expressly specified therein); and
and (b) any Claim arising out amount of any breach or inaccuracy of any taxes that are determined by the Accountant not to be due and owing as the result solely of the representations claims giving rise to such Shareholder's liability, and warranties (ii) not exceed an amount equal to the Total Consideration with the Parent Common Stock being valued at the Parent Common Stock Value for such purpose. The aggregate liability of the Company Parent under Section 6.2.2(ii) shall (i) be net of (a) any cash amounts actually received by the Shareholders as insurance proceeds as the result solely of the claims giving rise to such Parent's liability, and (b) any amount of taxes that are determined by the Accountant not to be due and owing as the result solely of the claims giving rise to such Parent's liability, and (ii) not exceed the cash amount equal to the Total Consideration with the Parent Common Stock being valued at the Parent Common Stock Value for such purpose. Except for claims pursuant to Section 6.2.1.(i) of this Agreement, claims involving fraud or intentional or negligent misrepresentation and claims arising under any agreement that is an exhibit to this Agreement, the indemnification rights contained in this Agreement, other than the Fundamental Company Representations, Article 6 shall be wholly barred and unenforceable unless a written notice the sole remedy of claim in accordance the parties hereto with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee respect to the Company within 12 months of the date subject matter of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) Subject to Section 9.3(b) the Selling Stockholder shall not be required to make any Claim indemnification payment pursuant to Sections 9.2(a)(i) 9.2(a)(i) or 9.2(a)(ii) for any Breach as set forth in such Sections until such time as the total amount of all Damages (including the Damages arising out from such Breach and all other Damages arising from any other Breaches of any breach representations or inaccuracy warranties) that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise become subject, exceeds $100,000 in the aggregate. At such time as the total amount of such Damages exceeds $100,000 in the aggregate, the Indemnitees shall be entitled to be indemnified against the full amount of such Damages (and not merely the portion of such Damages exceeding $100,000).
(b) The limitation on the Selling Stockholder’s indemnification obligations that is set forth in Section 9.3(a) shall not apply: (i) in the event of fraud or intentional misrepresentation; (ii) to any Breach of any the Fundamental Company Representations or any breach of any covenant of the Company Specified Representations, (iii) to the matters referred to in Sections 9.2(a)(iii), 9.2(a)(iv) and 9.2(a)(v); or (iv) to the matters referred to in Section 9.2(a)(vi) (to the extent related to any of the matters referred to in clauses “(i)” through “(iii)” of this sentence).
(c) Subject to Section 9.3(d), recourse by the Indemnitees to the Escrow Amount shall be wholly barred the Indemnitees’ sole and unenforceable unless a written notice of claim exclusive remedy for monetary Damages resulting from the matters referred to in accordance with Section 9.03 or 9.2.
(d) The limitations set forth in Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law 9.3(c) shall not apply: (or i) in the case of the covenants of the Company, such shorter period expressly specified therein)intentional misrepresentation or fraud; and
or (bii) any Claim arising out of any breach to inaccuracies in or inaccuracy breaches of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Specified Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee ; (iii) to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1matters referred to in Sections 9.2(a)(iii), any Claim arising out of any breach 9.2(a)(iv) and 9.2(a)(v) or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior (iv) to the latest date permitted by Applicable Law.
matters referred to in Section 9.2(a)(vi) (3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent related to any of such excess; and the matters referred to in clauses “(b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply i)” through “(iii)” of this sentence). Except in the case of fraud by intentional misrepresentation or fraud, the Company.
(4) Notwithstanding anything total amount of indemnification payments that the Selling Stockholder can be required to make to the contrary in this Agreement, the Company Indemnitees pursuant to Section 9.2 shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss limited to the extent that such Loss arises as a result amount of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsthe Cash Consideration.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any Except as otherwise expressly set forth herein, Seller shall not be liable under this Article VIII unless and until the Fundamental Company Representations or any breach of any covenant aggregate Losses for which Seller would otherwise be liable under this Article VIII exceed [**] dollars ($[**]) (the “Threshold Amount”) (at which point Seller shall become liable for all aggregate Losses subject to indemnification under this Article VIII, and not just amounts in excess of the Company Threshold Amount; provided that the limitation set forth in this sentence shall be wholly barred and unenforceable unless not apply to a written notice of claim in accordance with pursuant to Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee 8.1(a) relating to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any a breach or inaccuracy of any of the representations and warranties set forth in Sections 2.1, 2.2 or 2.5 or Sections 3.1, 3.2, 3.3, 3.13, 3.23(g), or 3.30 or pursuant to Section 8.1(f) (as to which the Threshold Amount shall not apply), or to a claim pursuant to Section 8.1(d) with respect to matters disclosed in Schedule 8.1(d) (as to which the Threshold Amount shall be deemed to be [**] dollars ($[**])). For purposes solely of the Company contained this Article VIII, all representations and warranties of Seller in this Agreement, Article II and Article III (other than the Fundamental Company Representations, Section 3.7 (Absence of Certain Changes) and Section 3.31 (Disclosure)) shall be wholly barred construed without respect to any materiality limitation, materiality qualification or materiality basket, as if the term “material” and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee any reference to the “Company within 12 months of the date of this AgreementMaterial Adverse Effect” (and variations thereof) were omitted from such representations and warranties.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreementherein, the Company Buyer shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent Article VIII unless and until the aggregate Losses for which Buyer would otherwise be liable under this Article VIII exceed the Threshold Amount (at which point Buyer shall become liable for all aggregate Losses subject to indemnification under this Article VIII, and not just amounts in excess of the Threshold Amount); provided that the limitation set forth in this sentence shall not apply to a claim pursuant to Section 8.1(a) relating to a breach of the representations and warranties set forth in Sections 4.1, 4.2, 4.3, 4.4 or 4.6 or a claim for payment of any amount due pursuant to Article I. For purposes solely of this Article VIII, all representations and warranties (if any) of Buyer in Article IV with materiality limitations, qualifications or baskets shall be construed without respect to any materiality limitation, materiality qualification or materiality basket, as if the term “material” and any reference to “Buyer Material Adverse Effect” (and variations thereof) were omitted from such contingent Loss becomes an actual Loss that is due representations and payable;warranties.
(c) any Loss The Escrow Agreement is intended to secure the indemnification obligations of Seller under Article VIII and Section 5.15, the adjustment obligations of Seller under Section 1.5, and the obligations of Parent under the Parent Guaranty. However, the rights of Buyer under this Article VIII, Section 5.15, and Section 1.5 shall not be limited to the extent that Escrow Fund nor shall the Escrow Agreement be the exclusive means for Buyer to enforce such Loss arises rights; provided that, except as a result of a failure otherwise expressly permitted by Glencore to comply with any of its obligations under this Agreement;, Buyer shall not attempt to collect any Losses directly from Seller pursuant to this Article VIII or Section 5.15 unless no remaining portion of the Escrow Fund is held in escrow pursuant to the Escrow Agreement and no portion of the Earn-Out is available to satisfy such Losses; and provided further that, notwithstanding anything to the contrary herein, in no event shall the aggregate liability of Seller pursuant to this Article VIII and Section 5.15 (and the aggregate liability of Parent pursuant to the Parent Guaranty insofar as such guaranty relates to the liabilities of Seller pursuant to this Article VIII), taken together, exceed the Cap.
(d) Except with respect to claims based on fraud or willful misrepresentation, after the Closing, the rights of the Indemnified Parties under this Article VIII, Section 5.15 and the Escrow Agreement, shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any changes breach of or inaccuracy in Applicable Law any representation or changes warranty in generally accepted interpretation this Agreement. For the avoidance of doubt, nothing in this Section 8.5(d) is intended to limit the Partiers’ rights to recover purchase price adjustments pursuant to Section 1.5 or application any rights of Applicable Law; oroffset and set-off pursuant to Section 1.4 (b).
(e) Neither Seller nor any changes of its subsidiaries shall have any right of contribution against the Company with respect to any breach of or inaccuracy in Applicable Accounting Standards any representation and warranty of the Company or generally accepted interpretation any breach by the Company of any of its covenants or application agreements.
(f) In the event that adjustment has been made pursuant to Section 1.5 for any item that also constitutes an indemnifiable Loss pursuant to this Article VIII arising out of Applicable Accounting Standardsa breach of Seller’s representations and warranties in Section 3.14 or Section 3.16, Buyer shall not be entitled to recover indemnification under this Article VIII for any amount that Buyer has theretofore recovered as an adjustment to the Base Purchase Price pursuant to Section 1.5.
Appears in 1 contract
Sources: Stock Purchase Agreement (Pacira Pharmaceuticals, Inc.)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) Except as otherwise set forth herein, the aggregate Liability of the Indemnifying Securityholders for Damages under Section 6.2(a) and Section 6.2(d) shall not exceed the Indemnity Escrow Fund; provided that the limitation set forth in this Section 6.4(a) shall not apply to (i) any Claim arising out claim pursuant to Section 6.2(a) relating to a breach of any breach or inaccuracy in the representations and warranties set forth in Section 2.1 (Organization, Qualification and Corporate Power), Section 2.2 (Capitalization), Section 2.3 (Authorization of any Transaction), Section 2.9 (Tax Matters) and Section 2.29 (Broker’s Fees) (collectively, the Fundamental Company Representations or any “Excepted Representations”). Solely for purposes of calculating the amount of indemnifiable Damages pursuant to this Article VI for breach of any covenant representation and warranty of the Company shall be wholly barred and unenforceable unless a written notice of claim set forth in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the CompanyArticle II, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained set forth in this AgreementArticle II shall be construed as if the terms “material” or “in all material respects” and any reference to “Company Material Adverse Effect” (and variations thereof) were omitted but only with respect to a specific breach that by itself would exceed the applicable “material,” “in all material respects” or “Company Material Adverse Effect” qualifier (or variations thereof).
(b) All Damages recovered by the Indemnified Parties from the Indemnity Escrow Fund shall be allocated among the Indemnifying Securityholders in accordance with their Pro Rata Portion of the Indemnity Escrow Fund. Except for claims or liabilities based on, other than related to or arising out of, or in connection with fraud, intentional misrepresentation or willful breach or the Fundamental Company Representationsequitable remedies set forth in Section 9.13, the aggregate Liability of the Indemnifying Securityholders for any Damages pursuant to Section 6.2 in excess of the Indemnity Escrow Fund shall not exceed (i) in the aggregate, the Merger Consideration and (ii) with respect to each Indemnifying Securityholder, such Indemnifying Securityholder’s Pro Rata Portion of the Merger Consideration.
(c) Except as otherwise set forth herein, no Indemnifying Securityholder shall be obligated to indemnify the Indemnified Parties for Damages under Section 6.2(a) unless and until the total amount of such Damages exceeds One Hundred Fifty Thousand Dollars ($150,000) (the “Threshold”), at which point the Indemnifying Securityholders, severally and not jointly, shall be wholly barred obligated to indemnify the Indemnified Parties for all such Damages and unenforceable unless not only the Damages in excess of the Threshold; provided that the limitations set forth in this Section 6.4(c) shall not apply to any claim pursuant to Section 6.2(a) relating to a written notice breach of claim or inaccuracy in accordance the Excepted Representations.
(d) In computing the amount of Damages incurred or suffered by an Indemnified Party, any such Damages shall be reduced by an amount equal to the amount of any insurance proceeds actually received from an insurance carrier by such Indemnified Party with Section 9.03 respect thereto (net of any applicable deductibles, increases in premiums or Section 9.04 is delivered similar costs or payments) pursuant to a policy of the Company in effect prior to the Closing Date; provided, however that no Indemnified Party shall have any obligation to maintain any such policy after the Closing Date or seek out any recovery under any such policy.
(e) No Indemnifying Securityholder shall have any right of contribution against the Company with respect to any breach by the Glencore Indemnitee Company of any of its representations, warranties, covenants or agreements.
(f) Except with respect to any claims or liabilities based on, related to or arising out of, or in connection with fraud, intentional misrepresentation or willful breach or the Company within 12 months equitable remedies set forth in Section 9.13, after the Closing, the rights of the date Indemnified Parties under this Article VI and the Escrow Agreement shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4g) Notwithstanding anything in this Agreement to the contrary in this Agreementcontrary, the Company no Indemnifying Party shall not be liable under this Agreement in respect of:
(a) have any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its indemnification obligations under this Agreement;
(d) any changes in Applicable Law Article VI or changes in generally accepted interpretation shall otherwise liable for the fraud, intentional misrepresentation or application willful breach of Applicable Law; or
(e) any changes in Applicable Accounting Standards another Indemnifying Party of which they did not have or generally accepted interpretation or application of Applicable Accounting Standardsshould not have had, after reasonable inquiry, knowledge.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequentialIn no event shall an Indemnitee be permitted to make a claim for indemnification under Section 10.1(a) or Section 10.1(b) (as the case may be) unless such claim is first made pursuant to this Agreement on or prior to the expiration of the survival of the subject representation, special, indirect, multiple-of-profit warranty or punitive damages or Losses in connection with a Direct Claim;covenant giving rise to such claim.
(b) Neither the Seller nor the Buyer (as the case may be) shall have any obligation to indemnify the applicable Indemnitees from and against any Indemnifiable Losses arising from any claims under Sections 10.1(a)(i), Section 10.1(a)(ii) with respect to a breach of Section 6.7 or 10.1(b)(i) above (as the case may be) if, with respect to any individual Indemnifiable Loss which item, such item is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;less than $25,000 (a “Minor Claim”).
(c) Neither the Seller nor the Buyer (as the case may be) shall have any Loss obligation to indemnify the applicable Indemnitees from and against any claims under Sections 10.1(a)(i), Section 10.1(a)(ii) with respect to a breach of Section 6.7 or 10.1(b)(i) above (as the case may be) until the aggregate amount of Indemnifiable Losses in respect of such claims (excluding Minor Claims) is greater than $4,000,000, (the “Threshold”), whereupon the applicable Indemnifying Parties shall pay (and be liable for) all such Indemnifiable Losses; provided, however, that the Threshold shall not apply to (i) any Buyer Losses in respect of: (A) a breach of any Fundamental Representation, (B) a breach of Section 4.6 or (C) any breach that is the result of fraud or intentional misrepresentation on the part of the Seller or (ii) any Seller Losses in respect of: (A) a breach of any Fundamental Representation or (B) any breach that is the result of fraud or intentional misrepresentation on the part of the Buyer or any Buying Affiliate.
(d) Neither the Seller nor the Buyer (as the case may be) shall have any obligation to indemnify the applicable Indemnitees from and against any claims under Sections 10.1(a)(i), Section 10.1(a)(ii) with respect to a breach of Section 6.7 or 10.1(b)(i) once the aggregate amount of all payments made by or on behalf of the Seller or the Buyer (as applicable) in respect of such Party’s indemnification obligations pursuant to Section 10.1 (excluding Minor Claims) exceeds $6,000,000 (the “Base Cap”); provided, however, that the Base Cap shall not apply to (i) any Buyer Losses in respect of: (A) a breach of any Fundamental Representation, (B) a breach of Section 4.6 or (C) any breach that is the result of fraud or intentional misrepresentation on the part of the Seller or (ii) any Seller Losses in respect of: (A) a breach of any Fundamental Representation or (B) any breach that is the result of fraud or intentional misrepresentation on the part of the Buyer or any Buying Affiliate.
(e) In no event shall Buyer Losses claimed by a Buyer Indemnitee as indemnifiable hereunder include any amounts that have already been factored as a dollar-for-dollar decrease in the calculation of the Final Purchase Price pursuant to Section 3.3 or have been recovered by the Buyer under the obligations of the Seller under any other provision of this Agreement or any other Transaction Document.
(f) Any payment made in respect of Indemnifiable Losses pursuant to this Article 10 shall be net of any insurance proceeds and third-party indemnification payments actually realized by and paid to the extent Indemnitee or its Affiliates in respect of the subject claim (in each case, net of any costs, fees or expenses incurred by such Indemnitee or its Affiliate to procure such proceeds or such payment and the amount of any increased insurance premiums (and with respect to such premium increase, as demonstrated by evidence reasonably satisfactory to the Indemnifying Party), retentions or other costs related to or arising from any related claims or awards). Each Buyer Indemnitee shall use commercially reasonable efforts to pursue its insurance coverage(s) and policies in respect of any claim for which it is a Buyer Indemnitee under this Agreement. The Indemnifying Party shall have the right to be informed of all efforts to pursue such insurance coverage(s). Indemnitee shall provide the Indemnifying Parties with prompt written Notice of any receipt of such insurance proceeds realized in respect of claims for which payment of indemnity has previously been made, and shall make prompt delivery to the Indemnifying Party of such portion of the amount by which payment of indemnification would have been reduced pursuant to this Article 10 if such proceeds had been realized prior to the making of such payment of indemnification.
(g) Except for remedies that cannot be waived as a matter of law, a claim for fraud in the inducement, and injunctive and provisional relief (including specific performance of this Agreement), this Article 10, and Article 6 shall be the exclusive remedy for breaches of this Agreement (including any covenant, obligation, representation or warranty contained in this Agreement or in any agreement, document, instrument, certification, Schedule or Exhibit delivered pursuant to this Agreement) from and after the Closing.
(h) The Indemnitees and Indemnifying Parties shall cooperate with each other to resolve any claim or liability with respect to which an Indemnifying Party is obligated to indemnify an Indemnitee, including by making commercially reasonable efforts to mitigate or resolve any such claim or liability. For the avoidance of doubt, “commercially reasonable efforts to mitigate or resolve any such claim or liability” shall not (i) require an Indemnitee or Indemnifying Party to risk paying a settlement amount due to a “hammer” clause under such Indemnitee or Indemnifying Party’s applicable insurance policy or (ii) require any Party to take any action (or to forego from taking any action where such forbearance would result) in violation of the applicable insurance policy that applies to the subject claims or Liability. In the event an Indemnitee fails to so mitigate an Indemnifiable Loss, the Indemnifying Party shall have no Liability for any portion of such Indemnifiable Loss arises that reasonably could have been avoided had the Indemnitee made such efforts. Without limiting the generality of the foregoing, after an Indemnitee acquires knowledge of any fact or circumstance that results in or reasonably would be expected to result in an Indemnifiable Loss or a Third Party Claim for which the Indemnifying Party may have Liability to such Indemnitee, such Indemnitee shall notify the Indemnifying Party promptly and implement such reasonable actions as the Indemnifying Party shall request in writing for the purposes of mitigating the possible Indemnifiable Losses arising therefrom.
(i) Notwithstanding anything to the contrary set forth in this Agreement, no Party shall be liable (whether an Indemnifiable Loss or otherwise) for any punitive, special or exemplary damages relating to any breach of representation, warranty or covenant contained in this Agreement or in any certificate delivered pursuant to this Agreement; provided, however, that, solely in respect of Indemnifiable Losses resulting from a Third Party Claim, if (x) a Buyer Indemnitee or a Seller Indemnitee (as the case may be) suffers an actual cash loss as a result of an award to a failure third party in a court, arbitration or regulatory proceeding with respect to a breach of a representation, warranty, or covenant under this Agreement and (y) such award includes such excluded damages, then the Indemnifiable Losses due the applicable Indemnitee shall include the amount of such award regardless of whether such award includes such excluded damages.
(j) For purposes of determining the amount of Indemnifiable Losses incurred or suffered by Glencore to comply an Indemnitee for purposes of this Article 10 (except in connection with any Buyer Loss arising from a breach or inaccuracy of its obligations under this Agreement;
(d) a representation of the Seller set forth in Section 4.5), the amount of such Indemnifiable Losses will be determined without regard to any changes in Applicable Law qualifications therein referencing the terms “materiality,” “Material Adverse Effect” or changes in generally accepted interpretation other terms of similar import or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardseffect.
Appears in 1 contract
Sources: Asset Purchase Agreement (Anixter International Inc)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) The Buyer shall not be entitled to indemnification under this Article IX with respect to any Claim matter to the extent that such matter was (i) included as a Current Liability in the calculation of Closing Date Adjusted Net Working Capital as finally determined pursuant to Section 2.2(b) or (ii) included in Closing Date Indebtedness or Closing Date Sale Transaction Expenses.
(b) To the extent required by Law, each Indemnified Party shall use its commercially reasonable efforts to mitigate any Losses sustained or incurred by such Indemnified Party.
(c) The indemnities herein are intended solely for the benefit of the Persons expressly identified in this Article IX (and their permitted successors and assigns) and are in no way intended to, nor shall they, constitute an agreement for the benefit of, or be enforceable by, any other Person.
(d) For purposes of the Parties’ indemnification obligations under this Article IX, all of the representations and warranties set forth in this Agreement that are qualified as to “material,” “materiality,” “material respects,” “Material Adverse Effect,” or words of similar import or effect shall be deemed to have been made without any such qualification for purposes of determining: (i) whether a breach of any such representation or warranty has occurred; and (ii) the amount of Losses based upon, arising out of or resulting from any such breach of representation or inaccuracy warranty; provided, that the provisions of this Section 9.6(d) shall be disregarded with respect to any reference to “material” and similar references hereinbefore set forth in Section 4.6(e), the first sentence of Section 4.7, the last sentence of Section 4.11(c) and the last sentences of Sections 4.23(a), 4.23(b) and 4.23(c).
(e) For purposes of determining the amount of any the Fundamental Company Representations or Losses incurred in connection with any breach of any covenant representation, warranty or Covenant set forth in this Agreement, such amount shall:
(i) be reduced by the amount of any insurance proceeds (other than any insurance proceeds from the R&W Insurance Policy) actually received by, or paid on behalf of, the Buyer or the Acquired Group in respect of the Company shall be wholly barred Losses (net of any deductible amounts and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered any reasonable costs and expenses actually incurred by the Glencore Indemnitee Buyer and the Acquired Group in collecting such insurance proceeds, including reasonable attorneys’ fees, and the projected future premium increases attributable to the Company on making of, or prior actions to the latest date permitted by applicable law (or in the case of the covenants of the Companycollect, such shorter period expressly specified thereininsurance proceeds); and
(bii) any Claim arising out be reduced by the amount of any breach reimbursement, indemnity or inaccuracy other payments received by, or paid to, the Buyer or the Acquired Group in respect of the Losses by any third party, net of any reasonable costs and expenses actually incurred by the Buyer and the Acquired Group in collecting such amounts; provided, however, that no Indemnifying Party shall have any rights of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim subrogation against any Person for any claims made in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2f) Notwithstanding Section 9.02(1)In the event that insurance proceeds are received by the Buyer or the Acquired Group with respect to a Loss after an indemnification payment has been made by the Sellers hereunder with respect to such Loss other than from the Indemnification Escrow Amount, any Claim arising out of any breach the Buyer or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior the Acquired Group shall pay to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless Sellers the amount of Losses such insurance proceeds (net of any deductible amounts and any reasonable costs and expenses actually incurred by the Buyer and the Acquire Group in collecting such insurance proceeds, including reasonable attorneys’ fees, and the projected future premium increases attributable to the making of, or actions to collect, such insurance proceeds) received by the Buyer or the Acquired Group with respect to such Loss, in each case not more than the amount of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Companyindemnification payment.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (AquaVenture Holdings LTD)
Limitations. (1a) Notwithstanding Except with respect to claims (i) based on actual fraud or (ii) made pursuant to Section 6.2(b) or Article IX, the rights of the Indemnified Parties under this Article VI shall be the sole and exclusive remedies of the Indemnified Parties and their respective Affiliates with respect to claims resulting from or relating to any other provision misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in this Agreement or otherwise relating to the transactions that are the subject of this Agreement. Without limiting the generality of the foregoing sentence, in no event shall Buyer, its successors or permitted assigns be entitled to claim or seek rescission of the transactions consummated under this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, each of the following six limitations shall apply:
(ai) any Claim arising out the aggregate liability of any breach or inaccuracy Seller for the sum of any the Fundamental Company Representations or any breach of any covenant of the Company all Damages under this Article VI shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee not exceed an amount equal to the Company on or prior to the latest date permitted by applicable law (or $7,000,000, except in the case of any Damages resulting from, relating to or constituting any misrepresentation or breach of warranty by Seller with respect to Sections 2.2, 2.9 or Article IX, for which the covenants aggregate liability of Seller for the sum of all such Damages, together with all other Damages for which Seller may be liable under this Agreement, shall not exceed the Purchase Price;
(ii) no individual claim or series of related claims for indemnification under Sections 6.1(a) or 6.2(a) shall be valid and assertable unless it is (or they are) for an amount in excess of $5,000;
(iii) Seller shall be liable under clause (a) of Section 6.1 for only that portion of the Companyaggregate Damages under clause (a) of Section 6.1 which exceeds $600,000 (it being understood that Seller shall not be liable, in any event, for the first $600,000 of said Damages), except in the case of any Damages resulting from, relating to or constituting any misrepresentation or breach of warranty by Seller with respect to Section 2.9, Article IX and the first sentence of Section 2.2(b);
(iv) the amount of any Damages for which indemnification is provided under this Article and Article IX shall be calculated net of any associated accruals or reserves reflected on the books of SRT and Nicolet as of January 1, 2000 or a related accrual or reserve created thereafter in the Ordinary Course of Business;
(v) Seller shall not be liable for any Damages under this Article VI resulting from, relating to or constituting any misrepresentation or breach of warranty in clauses (i) and (iii) of Section 2.17(b) unless the noncompliance or absence of a permit, license or approval that causes such shorter period expressly specified thereinmisrepresentation or breach of warranty comes to Buyer's attention in the Ordinary Course of Business or is brought to Buyer's attention by a Governmental Entity (other than as a result of a voluntary disclosure by Buyer that is not required by Environmental Law or made in response to an inquiry by a Governmental Entity); and
(bvi) Seller shall not be liable for any Claim arising out Damages under this Article VI resulting from, relating to or constituting any misrepresentation or breach of any warranty in clauses (i) and (ii) of Section 2.17(c) unless (A) in the case of clause (i) of Section 2.17(c), either such claim that causes such misrepresentation or breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, warranty comes to Buyer's attention from a third party (other than the Fundamental Company Representations, shall be wholly barred an Affiliate of Buyer and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused other than as a result of fraud may be brought at any time on a voluntary disclosure by Buyer that is not required by Environmental Law or prior made in response to an inquiry by a Governmental Entity) or the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty environmental condition of the Company property referred to in this Agreement: clause (i) for any individual claim of Section 2.17
(c) comes to Buyer's attention in the Ordinary Course of Business and is such that the investigation or series remediation of related claimsa Release of Materials of Environmental Concern is required by applicable Environmental Law or (B) for Losses unless in the amount case of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and clause (ii) unless of Section 2.17(c), the claim that causes such misrepresentation or breach of warranty is brought to Buyer's attention by a third party (other than an Affiliate of Buyer and until the aggregate amount other than as a result of all Losses exceeds $[Redacted - Commercially sensitive information] and then only a voluntary disclosure by Buyer that is not required by Environmental Law or made in response to the extent of such excessan inquiry by a Governmental Entity); and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided PROVIDED, HOWEVER, that the foregoing limitations shall not apply to (A) (I) a claim described in paragraphs (b) through (f) of Section 6.1, (II) any liability, including without limitation Tax liability, resulting from or relating to any act or omission of Seller in connection with the repayment and/or cancellation of the SRT Promissory Note on or prior to the Closing or (III) a failure by Seller to comply with the agreement by Seller in Section 10.11, for which, in the case of fraud by each of the Company.
foregoing clauses (4I), (II) Notwithstanding anything to the contrary in this Agreementand (III), the Company shall not aggregate liability of Seller for the sum of all such Damages, together with all other Damages for which Seller may be liable under this Agreement Agreement, shall not exceed the Purchase Price, or (B) (I) a claim described in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
paragraphs (b) any Loss through (f) of Section 6.2, for which is contingent unless and until the aggregate liability of Buyer for the sum of all such contingent Loss becomes an actual Loss that is due and payable;
Damages, together with all other Damages for which Buyer may be liable under this Agreement, shall not exceed the Purchase Price, or (cII) any Loss liability or Damages suffered by Seller resulting from or relating to any Deferred Items, including without limitation liability arising from the extent that such Loss arises as a result failure of a failure by Glencore Buyer to comply with any of its obligations under this Agreement;
(d) any changes the agreements by Buyer in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsSection 1.4.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim The aggregate Liability of Novartis for all Claims of Purchaser Indemnitees under Clause 15.1(a) (other than those based upon, resulting from, arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company relating to Clause 12.1(j)) shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee limited to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and[***]
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company Novartis shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series Claim of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (iiPurchaser Indemnitees under Clause 15.1(a) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only in respect of indemnification under Clause 15.1
(a) (other than those based upon, resulting from, arising out of or relating to the extent Specified Representations) exceeds [***] (the “Seller Indemnification Threshold”), and only the Losses in excess of such excess; and (b) the Company's maximum liability under Section 9.01 Seller Indemnification Threshold shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Companybe recoverable hereunder.
(4c) Notwithstanding anything The aggregate Liability of Purchaser for all Claims of Seller Indemnitees under Clause 15.2(a) shall be limited to the contrary in this Agreement, the Company [***].
(d) Purchaser shall not be liable for any Claim of Seller Indemnitees under this Agreement in respect of:
(a) any consequentialClause 15.2(a), special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due the aggregate amount of all Losses in respect of indemnification under Clause 15.2(a) exceeds [***] (the “Purchaser Indemnification Threshold”), and payable;
(c) any Loss to only the extent that such Loss arises as a result Losses in excess of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; orthe Purchaser Indemnification Threshold shall be recoverable hereunder.
(e) In no event shall Purchaser or Novartis be liable in connection with this Agreement or the transactions contemplated hereby for any changes Losses that are punitive, incidental, consequential, special or indirect, including breaches of the confidentiality provisions in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsClause 17.
Appears in 1 contract
Sources: Asset Purchase Agreement
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any An Indemnity Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall must be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on made at or prior to the latest date permitted by applicable law (or in the case expiration of the covenants applicable Survival Period set forth in Section 13.1 with respect to such Indemnity Claim; provided, however, that to the extent an Indemnity Claim is made within the applicable Survival Period set forth in Section 13.1, such Indemnity Claim will survive until such Indemnity Claim is resolved pursuant to the provisions of this Article XIII, notwithstanding the expiration of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of applicable Survival Period set forth in Section 13.1. Notwithstanding anything to the representations and warranties of the Company contained contrary set forth in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee Agreement (but subject to the Company within 12 months of the date terms of this Agreement.
(2) Notwithstanding Section 9.02(113.5(b)), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company Seller shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (iiBuyer Indemnified Parties under Section 13.2(a) unless and until the aggregate Indemnity Claims incurred by all Buyer Indemnified Parties, in the aggregate, as a result thereof exceed, in the aggregate, $300,000 (the "Basket Amount"), in which case Seller shall fully indemnify the applicable Buyer Indemnified Party for the entire amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to Indemnity Claims incurred by such Buyer Indemnified Party, including, without limitation, the extent of such excess; and (b) Basket Amount. Notwithstanding the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in foregoing, the aggregate; provided that the foregoing limitations Basket Amount shall not apply in to (x) any intentional breach by Seller of any representation or warranty, (y) any material misrepresentation or material breach of, or material omission from, the case of Fundamental Representations or the Statutory Representations, or (z) any intentional misconduct or fraud by the CompanySeller.
(4c) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the terms of this Section 13.5(c)), Seller shall not be liable to the Buyer Indemnified Parties under Section 13.2(a) for any amount in excess of $10,475,000 (the "Cap"). Notwithstanding the foregoing, the Cap shall not apply to (x) any intentional breach by Seller of any representation or warranty, (y) any material misrepresentation or material breach of, or material omission from, the Fundamental Representations or the Statutory Representations, or (z) any intentional misconduct or fraud by Seller. Without prejudice to the other limitations set forth in this Agreement, the Company Seller's maximum liability hereunder shall not exceed an amount equal to the Purchase Price, except with respect to the matters described in clauses (x) and (z) of the immediately preceding sentence. No Buyer Indemnified Party or Seller Indemnified Party will be liable under this Agreement in respect of:
(a) entitled to indemnification hereunder for lost profits or any punitive, consequential, specialexemplary, indirectspecial or similar damages, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes provided, however, that this provision shall not limit an actual Loss indemnified party's right to indemnification hereunder to recover Indemnity Claims that is due and payable;
(c) any Loss to arise as the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law third-party claim against the indemnified party for lost profits or changes in generally accepted interpretation punitive, consequential, exemplary, special or application of Applicable Law; orsimilar damages.
(e) Solely for purposes of determining the amount of Indemnity Claims under this Article XIII (but not whether a breach of a representation and warranty has occurred), the representations and warranties of Seller (other than the Fundamental Representations and the Statutory Representations) shall not be deemed qualified by any changes references to "material," "materiality," "in Applicable Accounting Standards all material respects," or generally accepted interpretation or application "material adverse effect".
(f) Seller acknowledges that Buyer is an agency of Applicable Accounting Standardsthe State of Texas and under the laws of the State of Texas possesses certain rights and privileges, is subject to certain limitations and restrictions, and only has such authority as is granted to it under the laws of the State of Texas.
Appears in 1 contract
Sources: Asset Purchase Agreement
Limitations. (1a) Notwithstanding From and after the Closing, except with respect to claims (i) based on actual fraud, (ii) for specific performance or (iii) made pursuant to Article VIII, the rights of the Indemnified Parties under this Article VI shall be the sole and exclusive remedies of the Indemnified Parties and their respective Affiliates with respect to claims resulting from or relating to any other provision misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in this Agreement or otherwise relating to the transactions that are the subject of this Agreement. The rights of the Parties under Article VIII shall be the sole and exclusive remedy of the Parties with respect to the subject matter of Article VIII. Without limiting the generality of the foregoing two sentences, in no event shall the Buyer, its successors or permitted assigns be entitled to claim or seek rescission of the transactions consummated under this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, each of the following five limitations shall apply:
(ai) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant aggregate liability of the Company Seller for the sum of all Damages under Section 6.1(a)(i) and Article VIII shall be wholly barred and unenforceable unless a written notice not exceed an amount equal to 25% of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law Adjusted Purchase Price;
(or ii) except in the case of Damages arising under Section 6.1(d), the covenants aggregate liability of the CompanySeller for the sum of all Damages under this Article VI and Article VIII shall not exceed the Adjusted Purchase Price;
(iii) no individual claim or series of related claims for indemnification under Sections 6.1(a)(i), such shorter period expressly specified therein6.2(a)(i) or 8.2(a) shall be valid and assertable unless it is (or they are) for an amount in excess of $50,000;
(iv) the Seller shall be liable under Article VIII for only that portion of the aggregate Damages under Article VIII which exceeds $1,500,000 (it being understood that the Seller shall not be liable, in any event, for the first $1,500,000 of said Damages); and
(bv) any Claim arising out the Seller shall be liable under clause (a)(i) of any breach or inaccuracy of any Section
6.1 for only that portion of the representations aggregate Damages under clause (a)(i) of Section 6.1 and warranties of Article VIII which exceeds $3,000,000 (it being understood that the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company Seller shall not be liable to liable, in any Glencore Indemnitee in respect event, for the first $3,000,000 of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]said Damages); and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided provided, however, that the foregoing limitations shall not apply to a claim described in the case of fraud by the CompanySection 6.1(c) or 6.1(d).
(4c) In no event shall any Indemnifying Party be responsible or liable to any Indemnified Party for any Damages or other amounts under this Article VI or under Article VIII that constitute punitive or other damages that are not compensatory in nature (other than any such damages suffered by the Indemnified Party as a result of an obligation to pay such damages to a third party). The Buyer shall (and shall cause the Technical Services Business to) use commercially reasonable efforts to pursue all legal rights and remedies available in order to minimize the Damages for which indemnification is provided to the Buyer by the Seller under Articles VI or VIII (including without limitation seeking indemnification by, contribution from, or reimbursement from the United States Government under all Government Contracts and applicable laws and regulations where available under the terms of the applicable Government Contract or applicable laws and regulations), and Damages shall not include any amounts for which indemnification, contribution or reimbursement is actually received. The Seller shall use commercially reasonable efforts to pursue all legal rights and remedies available in order to minimize the Damages for which indemnification is provided to the Seller by the Buyer under Articles VI or VIII.
(d) The amount of any Damages for which indemnification is provided under this Article VI or under Article VIII shall be reduced by (i) any related recoveries actually received by the Indemnified Party under insurance policies or other related payments received from third parties, (ii) any reimbursements or indemnification payments actually received by the Indemnified Party under any Government Contracts or contracts resulting from Government Bids and (iii) any Tax benefits actually received by the Indemnified Party or any of its Affiliates on account of the matter resulting in such Damages or the payment of such Damages. In the event that the Indemnified Party receives any such recoveries, reimbursements, indemnification payments or Tax benefits on account of Damages that have previously been paid by the Indemnifying Party to the Indemnified Party, the Indemnified Party shall, after receipt thereof, promptly pay over to the Indemnifying Party the full amount of such recoveries, reimbursements, indemnification payments or Tax benefits received.
(e) Notwithstanding anything to the contrary contained in this Agreement, the Company Buyer shall not be liable under this Agreement in entitled to make any claim for indemnification with respect of:
(a) to any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss matter to the extent that the Purchase Price has been adjusted to reflect such Loss arises as a result matter pursuant to Section 1.4 and the amount of a failure by Glencore to comply with any of its obligations Damages for which indemnification is provided under this Agreement;
(d) Article VI or under Article VIII shall be calculated net of any changes accruals, reserves or provisions reflected in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsthe Final Closing Working Capital Statement relating thereto.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out Notwithstanding the provisions of any breach this Article 9 or inaccuracy Section 7.5 (but subject to the provisions of any Sections 9.6(c) and 9.6(d) relating to the Fundamental Company Representations or any breach of any covenant reduction of the Company shall be wholly barred Indemnity Escrow Fund and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case proportional reduction of the covenants of the CompanyMDP Stockholder’s obligations hereunder, such shorter period expressly specified therein); andrespectively):
(bi) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty except in respect of which indemnity may Fundamental Representations, no Indemnitee shall be sought entitled to indemnification pursuant to Section 9.2(a) or 9.3(a) (as applicable) for Losses resulting from any single claim that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.does not exceed $75,000;
(3ii) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee except in respect of any breach of any representation Fundamental Representations, no Indemnitee shall be entitled to indemnification pursuant to Section 9.2(a) or warranty of the Company in this Agreement: 9.3(a) (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (iias applicable) unless and until the aggregate amount total of all Losses suffered or incurred by the Indemnitee exceeds an amount equal to $[Redacted - Commercially sensitive information] 21,062,500, and then only to the extent of such excess;
(iii) in no event shall the aggregate amount to be paid for Losses and Tax Losses incurred by the Stockholder Indemnitees, on the one hand, or the Parent Indemnitees and Parent Tax Indemnitees, on the other hand, for which such Indemnitees (including, as applicable any Parent Tax Indemnitee) is entitled to indemnification under this Agreement exceed $125,000,000 (the “Cap”), and, for the avoidance of doubt, in no event shall (i) any Other Stockholder’s liability under this Agreement exceed such Other Stockholder’s interest in its Pro Rata Portion of the Indemnity Escrow Amount multiplied by the Cap, or (ii) the MDP Stockholder’s liability under this Agreement exceed the MDP Stockholder’s Pro Rata Portion multiplied by the Cap;
(iv) in no event shall the amount to be paid by the MDP Stockholder in respect of any claim for indemnification under this Agreement exceed their aggregate MDP Stockholder’s Pro Rata Portion of such claim; and and
(v) in no event shall the aggregate amount to be paid by any Other Stockholder in respect of a claim for indemnification under this Agreement exceed such Other Stockholders’ Pro Rata Portion of such claim.
(b) In no event shall any party hereto be liable for, nor shall the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] definition of Losses and Tax Loss include (other than with respect to amounts actually paid in the aggregate; respect of third party claims), any indirect, incidental, special, consequential, punitive or exemplary damages, including loss of future revenue, income or profits, or loss of business reputation or opportunity (provided that none of the foregoing limitations shall not apply include diminution in the case value), arising out of fraud by the Company.
(4) Notwithstanding anything to the contrary a breach in this Agreement, even if advised at the Company time of breach of the possibility of such damages.
(c) In no event shall not the Stockholders be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) for any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any or Tax Loss to the extent that an adequate provision or reserve for such Loss arises as a result or Tax Loss was established in the Financial Statements (and in the case of a failure by Glencore Tax Loss, specifically identified in the related Tax reserve work papers) or the matter giving rise to comply with any of its obligations under this Agreement;such Loss or Tax Loss was otherwise addressed in the Closing Funds Certificate.
(d) In no event shall the Stockholders be liable for any changes Loss (i) that was caused by or results directly from any failure by Parent and its affiliates (including, following the Closing, the Surviving Corporation and its subsidiaries) to exercise commercially reasonable efforts to mitigate such Loss, or (ii) that is primarily a potential or unrealized Loss or Tax Loss (until such Loss or Tax Loss is realized (subject to the last sentence of Section 9.1)). Without limiting the generality of the foregoing, and notwithstanding anything herein to the contrary, indemnification for breach of any representation or warranty contained in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; orSection 3.18 shall be limited to Losses incurred with respect to Pre-Closing Tax Periods.
(e) The amount of any changes in Applicable Accounting Standards Loss or generally accepted interpretation Tax Loss for which indemnification is provided under this Article 9 shall be reduced to reflect: (i) any amount received by such Indemnitee (or, as applicable, the Surviving Corporation or application any of Applicable Accounting Standardsits subsidiaries) with respect thereto under any insurance coverage (other than self insured or other policies to the extent to which any such policy allocates the cost of any recovery to the Indemnitee or its affiliates (including, as applicable, the Surviving Corporation or any of its subsidiaries)) or from any other person alleged to be responsible therefore, and (ii) associated Tax reductions actually realized with respect to such Losses.
Appears in 1 contract
Sources: Merger Agreement (Transunion Corp.)
Limitations. (1a) Notwithstanding anything to the contrary herein, (i) the aggregate liability of the Seller for Damages under Section 6.1(a) and Section 6.1(b) shall not exceed Two Million Nine Hundred Forty Thousand ($2,940,000), and (ii) the Seller shall not be liable under this Section 6.1(a) unless and until the aggregate Damages for which it would otherwise be liable under Section 6.1(a) and Section 6.1(b) exceed $250,000 (at which point the Seller shall become liable for the aggregate Damages in excess of $250,000); provided that the limitations set forth in this sentence shall not apply to (A) a claim pursuant to Section 6.1(a) relating to a breach of the representations and warranties set forth in Sections 2.1, 2.2 and 2.8, (B) a claim pursuant to Section 6.1(b) relating to a breach of the covenants set forth in Sections 5.1 through 5.4 or (C) to any claim pursuant to Section 6.1(c) related to Taxes. For purposes solely of this Article VI, all representations and warranties of the Seller in Article II (other than Section 2.6) shall be construed as if the term “material” and any reference to “Business Material Adverse Effect” (and variations thereof) were omitted from such representations and warranties.
(b) Except with respect to claims based on fraud or knowing misrepresentation, after the Closing the rights of the Indemnified Parties under this Article VI and Section 8.13 shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in this Agreement.
(c) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach , the Seller shall have no obligation to pay or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: indemnify for (i) for any individual claim Tax (or series of related claimsDamages) for Losses unless to the amount of Losses in respect of extent such claim (Tax relates to a period beginning on or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and after the day immediately following the Closing Date or a Buyer Obligation Period or (ii) unless and until any Transfer Tax the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only Buyer is responsible to the extent of such excess; and (b) the Company's maximum liability under pay pursuant to Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company5.4(b).
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) With respect to Claims for Damages arising under Section 6.1 or 6.2, no Ample Shareholders, on one hand, and neither of Akerna nor the Purchaser, on the other hand, shall be liable for any Claim arising out such Damages until the aggregate amount of all such Damages for which such Party(ies) may be liable, exceeds $350,000 (at which point the applicable Indemnifying Party(ies) shall become liable for all Damages under Section 6.1 or 6.2, as applicable, from first dollar, and in excess of such amount); provided that the limitation set forth in this sentence shall not apply to claims based on: (i) fraud; or (ii) any claim pursuant to an Akerna Fundamental Representation and Warranty or an Ample Fundamental Representation and Warranty, (iii) any failure of Akerna to satisfy its obligations with respect to the Deferred Consideration under Section 2.19 or the Rights Indenture, or (iv) any Ample Shareholder’s entitlement following the Effective Time to receive Akerna Shares in exchange for Exchangeable Shares held by such Ample Shareholder or any alleged breach of the Voting and Exchange Trust Agreement, the Exchangeable Share Support Agreement or the rights and entitlements of any breach or inaccuracy holder of any Exchangeable Shares under the Fundamental Company Representations or any breach articles of any covenant incorporation of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); andPurchaser.
(b) any Claim arising out of any breach or inaccuracy of any Except for Claims based on fraud, the total aggregate liability of the representations and warranties Ample Shareholders for all Claims shall not exceed the aggregate value of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this AgreementEscrowed Shares.
(2c) Notwithstanding The total liability of the Ample Shareholders for all Claims (inclusive of Claims based on fraud) shall not exceed the aggregate value of the Escrowed Shares and the Closing Shares.
(d) The recovery of Escrowed Shares and Closing Shares pursuant to Section 9.02(16.6 shall be the exclusive means for a Purchaser Indemnified Person to collect Damages for which it is entitled to indemnification under this Article 6 from the Ample Shareholders.
(e) Except for Claims based on (i) fraud, (ii) with respect to any failure of Akerna to satisfy its obligations with respect to the Deferred Consideration under Section 2.19 or the Rights Indenture, or (iii) any Ample Shareholder’s entitlement following the Effective Time to receive Akerna Shares in exchange for Exchangeable Shares held by such Ample Shareholder or any alleged breach of the Voting and Exchange Trust Agreement, the Exchangeable Share Support Agreement or the rights and entitlements of any holder of Exchangeable Shares under the articles of incorporation of Purchaser, the total liability of Akerna and Purchaser shall not exceed the amount determined by multiplying the aggregate number of Escrowed Shares by the Deemed Value Amount.
(f) The total liability of Akerna and Purchaser for all Claims (inclusive of Claims based on fraud), except for Claims based on (i) any Claim arising out failure of Akerna to satisfy its obligations with respect to the Deferred Consideration under Section 2.19 or the Rights Indenture, or (ii) any Ample Shareholder’s entitlement following the Effective Time to receive Akerna Shares in exchange for Exchangeable Shares held by such Ample Shareholder or any alleged breach of the Voting and Exchange Trust Agreement, the Exchangeable Share Support Agreement or the rights and entitlements of any breach holder of Exchangeable Shares under the articles of incorporation of Purchaser, shall not exceed the amount determined by multiplying the aggregate number of Escrowed Shares and Closing Shares by the Deemed Value Amount.
(g) An Indemnifying Party shall have no liability to an Indemnified Party for any punitive or inaccuracy of exemplary damages except in connection with a Third Party Action.
(h) An Indemnifying Party shall have no liability to an Indemnified Party hereunder for any representation or warranty in respect of which indemnity may be sought Damages that was caused arise as a result of fraud may be brought at any time on proposed or prior actual promulgation or change of any Applicable Laws which occurs after the Effective Date, whether or not the same takes effect retroactively.
(i) An Indemnifying Party shall not have duplicate liability to an Indemnified Party hereunder by virtue of more than one representation, warranty or covenant relating to the latest date same matter or thing.
(j) No Ample Shareholder shall have any right of contribution against Ample with respect to any breach by Ample of any of its representations, warranties, covenants or agreements.
(k) Any payments made to a Party pursuant to this Article 6 or pursuant to the Escrow Agreement shall be treated as an adjustment to the Consideration for tax purposes to the extent permitted by Applicable Law.
(3l) Notwithstanding Where any other provision of payment is made under this Agreement: (a) the Company shall not be liable Agreement pursuant to any Glencore Indemnitee an indemnity, compensation or reimbursement provision, or in respect of any breach of any representation or warranty Claim Notice, and the sum is subject to a charge to Taxes in the hands of the Company in this Agreement: recipient (iother than Taxes attributable to a payment being properly treated as an adjustment to the Consideration) the sum payable shall be increased to such sum as will ensure that after payment of such Taxes (and after giving credit for any individual claim (or series of related claims) for Losses unless relief available to the amount of Losses recipient in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only matter giving rise to the extent payment) the recipient shall be left with a sum equal to the sum that would have been received in the absence of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Companya charge to Taxes.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.
Appears in 1 contract
Sources: Arrangement Agreement (Akerna Corp.)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any Notwithstanding anything to the Fundamental Company Representations or any breach of any covenant contrary herein, (i) the aggregate liability of the Company Securityholders for Damages under Section 6.1 shall not exceed their pro rata share of the Escrow Fund and (ii) the Company Securityholders shall not be wholly barred liable under Section 6.1(a) unless and unenforceable unless until the aggregate Damages for which they or it would otherwise be liable under Section 6.1(a) exceed $200,000 (at which point the Company Securityholders shall become liable for the aggregate Damages under Section 6.1(a), and not just amounts in excess of $200,000); provided that the limitation set forth in clause (ii) of this sentence shall not apply to a written notice claim pursuant to Section 6.1(a) relating to a breach of claim the representations and warranties set forth in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee each of Sections 2.9, 2.20 and 2.21 in each case solely to the Company on extent relating to employees or prior to the latest date permitted by applicable law (or in the case operations of the covenants Company outside the United States. For purposes solely of the Companythis Article VI, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the all representations and warranties of the Company contained in this Agreement, Article II (other than the Fundamental Company Representations, Sections 2.7 and 2.30) shall be wholly barred construed as if the term “material” and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee any reference to the “Company within 12 months of the date of this AgreementMaterial Adverse Effect” (and variations thereof) were omitted from such representations and warranties.
(2b) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior anything to the latest date permitted by Applicable Law.
contrary herein, (3) Notwithstanding any other provision of this Agreement: (ai) the Company aggregate liability of the Buyer for Damages under Section 6.2(a) shall not exceed $4,000,000, and (ii) the Buyer shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (iiunder Section 6.2(a) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not Damages for which it would otherwise be liable under Section 6.2(a) exceed $200,000 (at which point the Buyer shall become liable for the aggregate Damages under Section 6.2(a), and not just amounts in excess of $200,000). For purposes solely of this Agreement Article VII, all representations and warranties of the Buyer in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless Article III shall be construed as if the term “material” were omitted from such representations and until such contingent Loss becomes an actual Loss that is due and payable;warranties.
(c) any Loss to The Escrow Agreement shall be the extent that such Loss arises as a result sole source of, and secure, the indemnification obligations of a failure by Glencore to comply with any of its obligations the Company Securityholders under this Agreement;
(d) No Company Securityholder shall have any changes in Applicable Law right of contribution against the Company or changes in generally accepted interpretation the Surviving Corporation with respect to any breach by the Company of any of its representations, warranties, covenants or application of Applicable Law; oragreements.
(e) The amount of any changes in Applicable Accounting Standards or generally accepted interpretation or application liability for Damages as to which indemnification exists under this Article VI shall be measured taking into account any insurance proceeds actually realized and any adverse insurance consequences incurred (such as premium adjustments) that affect the overall economic impact of Applicable Accounting Standardsthe Damages on the party seeking indemnification.
Appears in 1 contract
Sources: Merger Agreement (Doubleclick Inc)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental No Company Representations or any breach of any covenant of the Company Member shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore obligated to indemnify any Parent Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) indemnification pursuant to a Representation Breach Claim unless and until the aggregate amount of all Losses exceeds of all Parent Indemnitees (whether or not resulting from a Representation Breach Claim) equal or exceed Fifty Thousand Dollars ($[Redacted - Commercially sensitive information] and then only 50,000) (the “Deductible”), at which time the Company Members shall indemnify the Parent Indemnitees for the amount of all Losses in excess of the Deductible.
(b) The Deductible shall not apply to Losses resulting from (x) any Representation Breach Claim regarding the Fundamental Representations, or (y) any claims other than Representation Breach Claims.
(c) The Company Members’ aggregate Liability for Representation Breach Claims shall not exceed Four Million Dollars ($4,000,000) (the “General Cap”); provided that the General Cap shall not apply with respect to the extent claims set forth in the following clauses (a) through (b) and the Company Members’ Liability for indemnification therefor shall not count for purposes of such excessthe General Cap: (a) Representation Breach Claims regarding any Fundamental Representations; and (b) the Company's maximum liability under Section 9.01 any claims other than Representation Breach Claims.
(d) The Company Members’ aggregate Liability for all claims hereunder shall not exceed the lesser of (i) Fifteen Million Dollars ($[Redacted - Commercially sensitive information] in 15,000,000) or (ii) the aggregate; provided that the foregoing limitations shall not apply in the case of fraud Aggregate Consideration actually received by the CompanyCompany Members (the “Maximum Cap,” together with the General Cap, each, an “Indemnity Cap”).
(4e) Notwithstanding anything to the contrary in this Agreement, neither the Deductible nor any Indemnity Cap shall apply with respect to claims based on fraud, and the Company Members’ Liability for indemnification therefor shall not count for purposes of any Indemnity Cap. Notwithstanding the foregoing, no Company Member shall be liable for the fraud of any other Company Member.
(f) Nothing in this Section 7.4 shall limit Parent’s or the Surviving Corporation’s right to seek equitable relief (including an injunction) to enforce any rights under this Agreement in respect of:Agreement.
(ag) Notwithstanding anything herein to the contrary, for purposes of calculating or determining the amount of Losses incurred under Section 7.2 or Section 7.3, there shall be deducted from any consequentialLosses an amount of any Tax benefit, Tax refund, insurance proceeds, indemnification payments, contribution payments or reimbursements actually received by any Company Indemnitees or Parent Indemnitees, as applicable, in connection with such Losses. Furthermore, upon notice of any Loss or event or condition that may give rise to any Loss, Parent or the Company Members, as applicable, shall, and shall cause all of its respective Affiliates to, (i) take any and all actions available to them to mitigate and minimize such Loss to the maximum extent possible and (ii) notify all of their respective applicable insurance carriers of such possible Loss and diligently seek to recover all possible insurance coverage, payments and proceeds relating to such Loss under any and all policies of insurance held by them.
(h) Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Indemnified Party be entitled to recover exemplary, special, indirect, multiple-of-profit indirect or punitive damages or Losses in connection with a Direct Claim;
under this Article 7 (b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss except to the extent that such Loss arises as damages are awarded to a result third party or in the case of a failure by Glencore to comply with any of its obligations under this Agreement;fraud).
(di) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsAny amounts payable pursuant to the indemnification obligations hereunder shall be paid without duplication.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee Notwithstanding anything to the Company on or prior to contrary herein, the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company Indemnitors shall not be liable to any Glencore Indemnitee in respect of any breach of any representation the Indemnitees for indemnification under Section 10.1(a)(i) or warranty of Section 10.1(b)(i), as the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and case may be, until the aggregate amount of all Losses in respect of indemnification under Section 10.1(a)(i) or Section 10.1(b)(i) exceeds $[Redacted - Commercially sensitive information] 100,000 (the “Deductible”), in which event the Indemnitor shall only be required to pay or be liable for Losses in excess of the Deductible.
(b) The maximum aggregate liability of Shareholder with respect to Losses pursuant to Section 10.1(a)(i) shall not exceed the Indemnity Escrow. Notwithstanding the foregoing, this Section 10.4(b) shall not apply to (i) inaccuracies or misrepresentations in or breaches of the representations and then warranties made in Sections 4.14 (Environmental Matters), or 4.16 (Employee Benefit Matters), for which the maximum aggregate liability of Shareholder with respect to Losses pursuant to Section 10.1(a)(i) shall not exceed 50% of the Indemnification Cap, (ii) inaccuracies or misrepresentations in or breaches of any of the other Fundamental Representations, for which the maximum aggregate liability of Shareholder with respect to Losses pursuant to Section 10.1(a)(i) shall not exceed the Indemnification Cap, or (iii) fraud.
(c) With respect to claims for indemnification under Section 10.1(b)(i), the maximum aggregate liability of Buyer shall not exceed the Purchase Price, except with respect to fraud.
(d) The Indemnitees shall not be entitled to indemnification under this Agreement to the extent such Loss was taken into account in the determination of the Net Adjustment hereunder if doing so would result in double counting, but only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Companyamount so taken into account.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) Payments by an Indemnitor in respect of any changes Losses shall be reduced by the amount of any insurance proceeds (net of any deductible amounts, the Indemnitee’s reasonable estimate of any increase in Applicable Accounting Standards premiums related thereto and any reasonable costs associated with obtaining such insurance proceeds) and any indemnity, contribution or generally accepted interpretation other similar payment, in each case actually received by the Indemnitee (or application Company) in respect of Applicable Accounting Standardsany such claim. The Indemnitee shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out Except in cases of Fraud on the part of any breach or inaccuracy Party, from and after the Closing, the remedies of any the Fundamental Company Representations or Indemnified Parties under this Article IV and the other remedies expressly set forth in this Agreement shall be the sole and exclusive remedies of the Indemnified Parties and their respective Affiliates with respect to claims resulting from any breach of representation or warranty or failure to perform any covenant or agreement contained in this Agreement; provided, however, that this Article IV shall not limit the rights or remedies of any Indemnified Party under, or with respect to the matters contemplated by, any other Transaction Document. Without limiting the generality of the Company foregoing, in no event shall Buyer or its successors or permitted assigns be wholly barred and unenforceable unless a written notice entitled to claim or seek recission of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee Transactions. Notwithstanding anything to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Companycontrary herein, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in Seller shall not be construed to relate to, and Buyer shall not have any rights to indemnification under this AgreementAgreement with respect to claims or Damages arising out of or with respect to, other than the Fundamental Company RepresentationsIntellectual Property matters, which such claims or Damages shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered governed exclusively by the Glencore Indemnitee to the Company within 12 months of the date of this License Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary contained in this Agreement, each of the Company following limitations shall apply to claims for indemnification pursuant to this Agreement; provided, however, that the following limitations shall not apply with respect to Fraud:
(i) the aggregate Liability of an Indemnifying Party for all Damages under Section 4.1(a) or 4.2(a) (other than for breaches of Fundamental Representations), as applicable, shall not exceed an amount equal to $[***];
(ii) the Indemnifying Party shall be liable under this Agreement Section 4.1(a) or 4.2(a) (other than for breaches of Fundamental Representations) only in respect of:the event that the aggregate Damages resulting from claims under Section 4.1(a) or 4.2(a), as applicable, exceed $[***]; and
(aiii) any consequentialthe aggregate Liability of an Indemnifying Party for all Damages under Section 4.1(a) or 4.2(a), specialas applicable, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes shall not exceed an actual Loss that is due and payable;amount equal to $[***].
(c) For any Loss Damages for which indemnification under Section 4.1(a) is finally determined and payable by Seller and such claim is not otherwise satisfied by Seller within ten (10) Business Days of the final determination of such claim, such Damages may, at Buyer’s election, be satisfied by set-off of such amounts against any unpaid amounts under the Convertible Notes or any other amounts payable to Seller under the License Agreement; provided, that this clause (c) shall in no way be construed to limit Seller’s obligation to pay Damages to Buyer in cash. Notwithstanding the anything to the extent contrary herein, (i) in the event that Seller’s aggregate Liability under Section 4.1(a) with respect to breaches of Seller Non-fundamental Representations exceeds $[***], any Liability of Seller under Section 4.1(a) with respect to such Loss arises as a result breaches shall be satisfied only by set-off of a failure such amounts against any unpaid amounts under the Convertible Notes, and (ii) in the event that Seller’s aggregate Liability under Section 4.1(a) with respect to breaches of Seller Fundamental Representations exceeds $[***], any Liability of Seller under Section 4.1(a) with respect to such breaches shall be satisfied only by Glencore to comply with set-off of such amounts against any unpaid amounts under the Convertible Notes; provided, however, that in the event that the Convertible Notes have been paid or converted into Ordinary Shares, Seller’s maximum Liability under Section 4.1(a) shall not exceed (i) [***] plus (ii) the amount of its obligations under this Agreement;[***], but in no event greater than $[***].
(d) The amount of any changes Damages for which indemnification is provided under this Agreement shall be reduced by any related recoveries under insurance policies or other related third-party payments received by the Indemnified Party or any of its Affiliates, in Applicable Law each case net of the Indemnified Party’s reasonable out-of-pocket costs and expenses of collection and any increases in insurance premiums incurred by the Indemnified Party that result from the applicable insurance claim. An Indemnified Party shall use commercially reasonable efforts to pursue, and to cause its Affiliates to pursue, all insurance or changes other Third-Party Claims to which it may be entitled in generally accepted interpretation connection with any Damages it incurs. If an Indemnified Party (or application an Affiliate) receives any insurance or other third-party payment in connection with any claim for Damages for which it has already received an indemnification payment from the Indemnifying Party, it shall pay to the Indemnifying Party, within ten (10) Business Days of Applicable Law; or
receiving such insurance or other third-party payment, an amount equal to the excess of (ei) the amount previously received by the Indemnified Party under this Agreement with respect to such claim plus the amount of the insurance or other third-party payments (in each case net of the Indemnified Party’s reasonable out-of-pocket costs and expenses of collection and any changes increases in Applicable Accounting Standards or generally accepted interpretation or application insurance premiums incurred by the Indemnified Party that result from the applicable insurance claim), over (ii) the amount of Applicable Accounting StandardsDamages with respect to such claim which the Indemnified Party has become entitled to receive under this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Precision Biosciences Inc)
Limitations. (1a) Notwithstanding any other provision of this Agreementanything contained herein to the contrary:
(aA) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company Summit shall not be liable to in respect of any Glencore Indemnitee indemnification obligation for Losses of the Buyer Indemnitees under Section 8.2(a)(i) or (ii) (other than in respect of any breach of any representation or warranty of the Company in this Agreement: (iFundamental Representations) for any individual claim (or series of related claims) for Losses unless the aggregate cumulative amount of Losses in respect of such claim (for which indemnification would otherwise be available from Summit or series of related claimsFly but for this Section 8.3(a) exceeds $[Redacted - Commercially sensitive information]; and 1,000,000 (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] “Threshold Amount”), and then only to the extent of such excess; , and (bB) the Company's maximum Summit’s aggregate liability in respect of any and all indemnification obligations for Losses under Section 9.01 8.2(a)(i) and (ii) (other than in respect of any breach of the Fundamental Representations) shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.15,000,000;
(4ii) Notwithstanding anything to the contrary in this Agreement, the Company (A) Fly shall not be liable in respect of any indemnification obligation for Losses of the Buyer Indemnitees under Section 8.2(b) (other than in respect of any breach by Fly of any of the Fundamental Representations expressly made by it) unless the aggregate cumulative amount of Losses for which indemnification would otherwise be available from Fly but for this Section 8.3(a) exceeds the Threshold Amount, and then only to the extent of such excess, and (B) Fly’s aggregate liability in respect of any and all indemnification obligations for Losses under Section 8.2(b) (other than in respect of any breach of the Fundamental Representations) shall not exceed $6,500,000; and
(iii) in no event shall any Seller’s aggregate liability under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses Article VIII exceed the cash consideration received by it in connection with a Direct Claim;the Transactions.
(b) The amount of any Loss which is contingent unless indemnification payable under this Article VIII shall be reduced by an amount equal to the cash proceeds actually received by a Buyer Indemnitee or Seller Indemnitee, as applicable, under any insurance policy or from any third party in respect of such claim less all out-of-pocket costs and until expenses incurred by such contingent Loss becomes an actual Loss that is due and payable;Buyer Indemnitee or Seller Indemnitee in connection with obtaining such insurance proceeds or third-party recovery (including reasonable attorneys’ fees, any deductible or any retention, or any premium adjustment arising directly from such claim or Losses).
(c) Each Buyer Indemnitee and Seller Indemnitee shall use its, his or her commercially reasonable efforts to pursue any insurance recovery or third-party recovery available to it with respect to any Loss for which such Buyer Indemnitee or Seller Indemnitee seeks indemnification pursuant to this Article VIII, it being understood and agreed that the possibility that insurance proceeds may be realized by such Buyer Indemnitee or Seller Indemnitee shall not delay payment or indemnification of such Losses by the Party against whom indemnification is sought pursuant to this Article VIII. To the extent that such Loss arises as a result an Indemnifying Party has made any indemnification payment hereunder in respect of a failure by Glencore claim for which an Indemnitee has asserted a related claim for insurance proceeds or under a contractual indemnity, the Indemnifying Party shall be subrogated to comply with any the rights of its obligations under this Agreement;the Indemnitee to receive the proceeds of such insurance or contractual indemnity.
(d) The Buyer Indemnitee or Seller Indemnitee, as the case may be, seeking indemnification under this Agreement shall use its commercially reasonable efforts to mitigate any changes in Applicable Law Loss which forms the basis of an indemnification claim hereunder upon and after becoming aware of any event or changes in generally accepted interpretation or application of Applicable Law; or
(e) condition which would reasonably be expected to give rise to any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsLosses that are indemnifiable hereunder.
Appears in 1 contract
Sources: Purchase Agreement (Fly Leasing LTD)
Limitations. The indemnification provided for in this Section 6.2 shall be subject to the following provisions:
(1) Notwithstanding any other provision of Seller shall not be obligated to make indemnification payments pursuant to this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any Section 6.2 for breach of any covenant representations or warranties set forth herein until the aggregate amounts for indemnification hereunder exceed $3.0 million (the "Deductible"), whereupon Seller shall be obligated to pay in full all such amounts for indemnification in excess of the Company Deductible, subject to clause (iii) below; provided that this subsection shall be wholly barred not apply to a misrepresentation or breach of warranty by Seller contained in Sections 2.1(b) (i), (c) and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee (q) and shall not apply to the Company on or prior to the latest date permitted by applicable law indemnification obligations set forth in Sections 6(a)(ii) through (or in the case of the covenants of the Company, such shorter period expressly specified thereinv); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.;
(2) Notwithstanding Buyer shall not be obligated to make indemnification payments for breach of representations or warranties pursuant to this Section 9.02(1)6 until the aggregate amounts for indemnification hereunder exceed the Deductible, any Claim arising out whereupon Buyer shall be obligated to pay in full all such amounts for indemnification in excess of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought the Deductible, subject to clause (iii) below; provided that was caused as a result of fraud may be brought at any time on or prior this subsection shall not apply to the latest date permitted by Applicable Lawindemnification obligations set forth in Sections 6(b)(ii) through (iv).
(3) Notwithstanding any other provision of Neither Buyer nor Seller shall be obligated to make indemnification payments pursuant to this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) Section 6.2 for Losses unless the amount arising out of Losses or related to breaches of representations or warranties set forth herein in respect excess of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] 100 million in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to For purposes of determining the contrary aggregate amount of Loss suffered by an Indemnified Party, each representation and warranty contained in this Agreement, the Company Agreement for which indemnification is sought hereunder shall not be liable under this Agreement in respect of:
read (aincluding for purposes of determining whether a breach of such representation or warranty has occurred) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss without regard to qualifications as to materiality that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsmay be contained therein.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) Subject to the provisions of Section 9.3(b):
(i) No indemnification shall be payable by a Timken Indemnifying Person with respect to Losses arising from a Timken Event of Indemnification described in Sections 9.2(a)(i), (a)(ix) or (a)(xviii), until the cumulative amount of all such Losses exceeds $1,250,000 (the “Deductible Amount”), whereupon the Timken Indemnifying Persons shall be liable only for Losses in excess of such amount; provided, however, that the foregoing shall not apply with respect to any Claim arising out of Losses resulting from any breach or inaccuracy of any of the Fundamental Company representations or warranties set forth in any of Sections 4.2, 4.4, 4.5, 4.6, 4.8(b), 4.30, 5.2, and 5.4, the first sentence of Section 4.10 and Sections 4.17(b)(i), 4.17(b)(iii) (except with respect to Losses resulting from statutory penalties under ERISA or the Code arising from a failure to provide proper notification or disclosure to the applicable Governmental Authorities or Employee Plan participants, as the case may be, which shall be subject to the Deductible Amount and the Timken Cap), 4.17 (b)(iv)-(vii), (c), and (f) (collectively the “Excluded Representations”) such that the Buyer Indemnified Persons shall be entitled to recover the full amount of such Losses; provided further, however, that with respect to Section 4.8(c) only, no Buyer Indemnified Person shall be entitled to assert a claim for breach or inaccuracy with respect thereto unless the amount of Losses with respect to such claim exceeds $25,000 in which case a claim may be brought for the entire amount including the first $25,000. Any claim that may be asserted pursuant to Section 9.2(a)(i) or 9.2(a)(ix) that may also be asserted pursuant to Section 9.2(a)(ii), 9.2(a)(iii) or 9.2(a)(x) solely as a result of Timken’s or Timken Alloy’s failure to provide notice as required pursuant to Section 7.5 shall be asserted solely pursuant to Section 9.2(a)(i) or 9.2(a)(ix), as applicable.
(ii) No indemnification shall be payable by a Buyer Indemnifying Person with respect to Losses arising from a Buyer Event of Indemnification described in Section 9.2(b)(i) until the cumulative amount of all such Losses exceeds the Deductible Amount; provided, however, that the foregoing shall not apply with respect to any Losses resulting from any breach or inaccuracy of Sections 6.1, 6.3, 6.5 and 6.10 such that the Timken Indemnified Persons shall be entitled to recover the full amount of such Losses.
(iii) Subject to Section 9.3(a)(v), the maximum aggregate liability of the Timken Indemnifying Persons pursuant to this Article IX with respect to all Timken Events of Indemnification described in Sections 9.2(a)(i), (a)(ix) or (a)(vii)(A) shall not exceed $25,000,000 in the aggregate (the “Timken Cap”); provided, however, that the foregoing shall not apply with respect to any Losses resulting from any breach or inaccuracy of any of the Excluded Representations or any breach of any covenant of the Company representations or warranties contained in Section 4.9 such that the Buyer Indemnified Persons shall be wholly barred and unenforceable unless a written notice entitled to recover the full amount of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee such Losses up to the Company on Purchase Price; provided further, however, that the maximum aggregate liability of the Timken Indemnifying Persons pursuant to this Article IX with respect to all Timken Events of Indemnification arising (A) pursuant to Section 9.2(a)(vi) shall not exceed in the aggregate the sum of (1) the Timken Cap after taking into account other claims applied against the Timken Cap plus (2) $30,000,000 (the “Product Liability Subcap”), and (B) from the representations or warranties contained in Section 4.21 shall not exceed in the aggregate, together with any claims made pursuant to Section 9.2(a)(viii) and Section 9.2(a)(xviii), the sum of (1) the Timken Cap after taking into account other claims applied against the Timken Cap plus (2) $20,000,000 (the “Environmental Subcap”); provided, however, that, notwithstanding anything in this Agreement to the contrary but subject to the Timken Cap and the Environmental Subcap as provided in clause (B) above, the Timken Indemnifying Persons shall be responsible for 75% of the aggregate Losses incurred by a Buyer Indemnified Person resulting from a breach or inaccuracy of Section 4.21 or any Losses pursuant to Section 9.2(a)(xviii) and the Buyer Indemnified Persons shall be responsible for the other 25% of such aggregate Losses; provided, further, however, that, notwithstanding anything in this Agreement to the contrary but subject to the Timken Cap and the Environmental Subcap as provided in clause (B) above, Timken shall be responsible for 100% of the aggregate Losses incurred by a Buyer Indemnified Person resulting from a breach or inaccuracy of Section 4.21 or any Losses pursuant to Section 9.2(a)(xviii) with respect to any tort claim by a non-Governmental Authority third party (other than employees covered by workers compensation) for personal injury or death, but only to the extent caused by exposure to a Hazardous Material at or migrating from the Real Property prior to the latest date permitted by applicable law Closing Date. The Buyer Indemnified Persons may charge Losses against the Environmental Subcap or the Product Liability Subcap, as the case may be, first before charging Losses against the Timken Cap. Any claim that may be asserted pursuant to Section 9.2(a)(i) or 9.2(a)(ix) that may also be asserted pursuant to Sections 9.2(a)(ii), 9.2(a)(iii) or 9.2(a)(x) solely as a result of Timken’s or Timken Alloy’s failure to provide notice as required pursuant to Section 7.5 shall be asserted solely pursuant to Section 9.2(a)(i) or 9.2(a)(ix), as applicable.
(or iv) The maximum aggregate liability of the Buyer Indemnifying Persons pursuant to this Article IX with respect to all Buyer Events of Indemnification described in Section 9.2(b)(i) shall not exceed $25,000,000 in the case aggregate, provided, however, that the foregoing shall not apply with respect to any Losses resulting from any breach or inaccuracy of Sections 6.3, 6.5 and 6.10, such that the Timken Indemnified Persons shall be entitled to recover the full amount of such Losses up to the Purchase Price.
(v) The maximum aggregate liability of the covenants Timken Indemnifying Persons pursuant to this Article IX with respect to all Timken Events of the CompanyIndemnification described in Section 9.2(a)(v), such shorter period expressly specified therein); and
(bSection 9.2(a)(vii)(B) any Claim arising out of and with respect to any breach or inaccuracy of any of the representations and warranties set forth in Sections 4.17(b)(i), (b)(iii) (except with respect to Losses resulting from statutory penalties under ERISA or the Code arising from a failure to provide proper notification or disclosure to the applicable Governmental Authorities or Employee Plan participants, as the case may be, which shall be subject to the Deductible Amount and the Timken Cap), (b)(iv)-(vii), (c), or (f) shall not exceed the Purchase Price in the aggregate.
(b) Notwithstanding any provision of this Agreement to the Company contrary, nothing contained in this AgreementAgreement shall in any way limit, other than impair, modify or otherwise affect the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out rights of any breach Indemnified Person to bring any claim, demand, suit or inaccuracy cause of action otherwise available to such Indemnified Person based upon or to seek or recover any representation Losses arising from or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior related to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (fraud or series a willful or intentional misrepresentation or willful or intentional omission of related claims) for Losses unless the amount of Losses a material fact in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in connection with this Agreement, the Company shall not be liable under this Agreement in respect of:
Related Agreements, the Timken Alloy Agreements or any of the transactions contemplated hereby or thereby or (aii) any consequentialthe Transition Services Agreement, specialthe Non-Competition Agreement, indirect, multiple-of-profit the Supply Agreements or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;the Sheffield Lease.
(c) The parties agree that any Loss payment pursuant to an indemnification obligation under this Article IX shall be treated for federal income tax purposes as an adjustment to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;Purchase Price.
(d) The parties agree that no Timken Indemnifying Person shall have any changes right of contribution or indemnity, or any other right, remedy or recourse, against the Company or its Subsidiaries in Applicable Law connection with any indemnification obligation or changes other Liability arising under or in generally accepted interpretation connection with, or application related to, this Agreement or any Related Agreement or any other Agreement entered into in connection with this Agreement, or any of Applicable Law; or
(e) any changes in Applicable Accounting Standards the transactions contemplated hereby or generally accepted interpretation or application of Applicable Accounting Standardsthereby.
Appears in 1 contract
Sources: Stock Purchase Agreement (Timken Co)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out Subject to the additional limitations set forth below in this Article VII, the Stockholders shall not be liable to Purchaser Indemnified Parties for indemnification under Section 7.2(i) and Purchaser shall not be liable to the Stockholders Indemnified Parties for indemnification under Section 7.3(i) unless and until Purchaser Indemnified Parties have incurred Losses in excess of any breach $300,000 (the “Deductible”) in the aggregate, in which case Purchaser Indemnified Parties or inaccuracy of any the Fundamental Company Representations or any breach of any covenant Stockholders Indemnified Parties, as applicable, shall be entitled to bring a claim for only such Losses in excess of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); andDeductible.
(b) any Claim arising out of any breach or inaccuracy of any of Notwithstanding anything to the representations and warranties of the Company contrary contained in this Agreement, other than Purchaser Indemnified Parties or the Fundamental Company RepresentationsStockholders Indemnified Parties, as applicable, shall be wholly barred and unenforceable unless a written notice of claim in accordance with have no right to indemnification for any Losses for which Purchaser Indemnified Parties are entitled pursuant to Section 9.03 7.2(i) or the Stockholders Indemnified Parties are entitled pursuant to Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(17.3(i), as applicable, with respect to, and the amount of Losses for purposes of determining whether the Deductible has been reached shall exclude, any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior Losses attributable to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claimsclaims arising from the same events, facts or circumstances) for Losses unless the amount of Losses in respect of such claim (that is indemnifiable under Section 7.2(i) or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (iiSection 7.3(i) unless and until the aggregate amount of all such Losses exceeds exceed $[Redacted - Commercially sensitive information] and then only 20,000, whereupon, subject to the extent of terms, conditions and limitations set forth in this Agreement (including the Deductible and the Cap), Purchaser Indemnified Parties or the Stockholders Indemnified Parties, as applicable, shall be indemnified for such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the CompanyLosses.
(4c) Notwithstanding anything to the contrary contained in this Agreement, (i) the Company maximum aggregate liability of the Stockholders or Purchaser under this Article VII for Losses indemnified under Section 7.2(i) or Section 7.3(i), as applicable, shall not be liable exceed $5,800,000, (ii) the maximum aggregate liability of the Stockholders under this Agreement Section 7.2(iv) with respect to the ▇▇▇▇▇▇▇▇ Matter shall not exceed the sum $700,000 minus the amount of the case Reserves set forth on the Final Closing Date Balance Sheet with respect to the ▇▇▇▇▇▇▇▇ Matter, (iii) the maximum aggregate liability of the Stockholders under Section 7.2(iv) with respect to the Superstorm ▇▇▇▇▇ Matter shall not exceed the sum $980,000 minus the amount of the case Reserves set forth on the Final Closing Date Balance Sheet with respect to the Superstorm ▇▇▇▇▇ Matter, and (iv) the maximum aggregate liability of the Stockholders or Purchaser for all Losses under Section 7.2 or Section 7.3, as, as applicable, shall not exceed fifty percent (50%) of the Base Purchase Price.
(d) Notwithstanding the foregoing, the limitations set forth in Section 7.5(a)through (b), inclusive, shall not apply to Losses resulting from any inaccuracy in or breach of any Fundamental Representation.
(e) Payments by an Indemnifying Party pursuant to Section 7.2 or Section 7.3 in respect of any Losses shall be reduced by the amount of (i) any Tax Benefit realized as a result of:, and as a result of the circumstances giving rise to, such Losses by the Indemnified Party and (ii) any amounts actually recovered by the Indemnified Party under insurance policies, indemnities or other reimbursement arrangements with respect to such Losses less the amount of any costs of obtaining such recovery, including any resulting increase in premium or other costs of insurance. If the Indemnified Party 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, the Indemnified Party shall promptly pay over to the Stockholders the amount of such Tax Benefit at such time or times as, and to the extent that, such Tax Benefit is realized by the Indemnified Party, but not in excess of the amount of the related indemnification payment. In the event that an insurance or other recovery is made by any Indemnified Party with respect to any Losses for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery shall be promptly made to the applicable Indemnifying Party.
(af) Each Indemnified Party shall take, and cause its Affiliates to take, all commercially reasonable steps to mitigate any consequentialLosses upon becoming aware of any event or circumstance that would be reasonably expected to, specialor does, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;give rise thereto.
(bg) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss Notwithstanding anything to the contrary contained in this Agreement, upon the final resolution of the ▇▇▇▇▇▇▇▇ Matter or the Superstorm ▇▇▇▇▇ Matter, as applicable, to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
the case Reserves attributed to such matter in the Final Closing Date Balance Sheet has not been applied to Losses with respect to such matter, Purchaser shall pay such unapplied case Reserves amount to the Stockholders (dbased on their Pro Rata Percentages) any changes in Applicable Law by wire transfer of immediately available funds within ten (10) Business Days following the final resolution of such matter to an account or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsaccounts designated by the Stockholders’ Representative.
Appears in 1 contract
Sources: Stock Purchase Agreement (Standard Diversified Inc.)
Limitations. (1) Notwithstanding any other provision No amounts of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company indemnity shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused payable as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: claim made under clause (a), (e), (f) the Company shall not be liable to any Glencore Indemnitee in respect or (h) of any breach of any representation or warranty of the Company in this Agreement: Section 8.2 (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) claims exceeds $[Redacted - Commercially sensitive information]; 25,000 (any such Losses being “Qualifying Losses”) and (ii) unless and until the aggregate Purchaser Indemnified Parties have suffered, incurred, sustained or become subject to Qualifying Losses in excess of $2.0 million in the aggregate, in which case the Purchaser Indemnified Parties may bring a claim for the entire amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent such Losses. The maximum liability of such excess; Sellers in respect of claims made under Sections 8.2(a), (e), (f), and (bh) the Company's maximum liability under Section 9.01 shall not exceed the Escrow Amount, less any amounts previously paid from the Escrow Amount (the “Indemnity Amount”), except that the foregoing limitation shall not apply to claims based on the representations and warranties described in Section 8.1(a)(i), and amounts paid in respect of those representations and warranties shall not count against the Indemnity Amount. No amounts of indemnity shall be payable as a result of any claim made under Section 8.3 (i) unless the Losses in respect of such claim or series of related claims are Qualifying Losses and (ii) unless and until the Seller Indemnified Parties have suffered, incurred, sustained or become subject to Qualifying Losses in excess of $[Redacted - Commercially sensitive information] 2.0 million in the aggregate; provided that , in which case the foregoing limitations Seller Indemnified Parties may bring a claim for the entire amount of such Losses. The maximum liability of Purchaser in respect of claims made under Section 8.3(a) shall not apply exceed the Indemnity Amount. Purchaser’s recourse against Sellers in the case respect of fraud by the Company.
claims made under Sections 8.2(a), (4e), (f) Notwithstanding anything and (h) shall be limited to those funds held pursuant to the contrary Escrow Agreement. Notwithstanding the foregoing, none of the limitations on liability contained in this AgreementSection 8.4 shall apply to any claim for indemnity based on any of Sections 3.1 [organization and qualification], the Company shall not be liable under this Agreement in respect of:3.2
(a) any consequential[authority], special3.13 [title to assets], indirect3.14 [sufficiency of assets], multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b3.31 [brokers], 4.1 [organization and qualification], 4.2(a) any Loss which is contingent unless [authority] and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards4.4 [brokers].
Appears in 1 contract
Sources: Purchase Agreement (Advanced Accessory Holdings Corp)
Limitations. (1) Notwithstanding any Any other provision of this Agreementhereof notwithstanding:
(ai) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company no indemnifying party shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee required to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) indemnify any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) Person unless and until the aggregate amount of loss, liability, obligation, damage or expense as to which indemnification would be required from all Losses the Shareholders, collectively, under Section 8.1(a), or JAKKS Pacific, under Section 8.2(a), as the case may be, but for the provisions of this Section 8.4, exceeds $[Redacted - Commercially sensitive information] US$50,000, and then only thereafter the indemnifying party shall be required, in the manner and to the extent otherwise provided in this Article, to indemnify any Person and to pay all amounts otherwise required to be paid by the indemnifying party to the extent of the entire loss, liability, obligation, damage or expense suffered or incurred by such excessPerson; the foregoing notwithstanding, JAKKS Pacific's Securities Claims, Shareholder Securities Claims, any Material Adverse Effect for indemnification based upon a breach of the representations and warranties made in the last four sentences of Sections 4.1 and 4.2 (bincluding, without limitation, the shareholders of the Kidz Biz Companies as set forth on Schedule I), all of Section 4.3 and any Dragon Ball Z Claim shall not be subject to, or included in calculating, the limitations contained in this clause 8.4(i);
(ii) the Company's maximum liability aggregate amount required to be paid under Section 9.01 8.1(a) pursuant to this Article 8 for any Claims for indemnification under this Agreement (including, but not limited to Claims based upon a breach of the representations and warranties made in the last four sentences of Sections 4.1 and 4.2, all of Section 4.3, the Dragon Ball Z Claims, Financial Claims, and any of the other provisions of Section 4) by ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in the aggregate shall not exceed $[Redacted - Commercially sensitive information] US$6,000,000.00 with respect to all Claims for indemnification, and (ii) by ▇▇▇▇ ▇▇▇▇▇ in the aggregate; provided that the foregoing limitations aggregate shall not apply in the case of fraud by the Companyexceed US$6,000,000.00 with respect to all Claims for indemnification.
(4iii) Notwithstanding anything the aggregate amount required to be paid under Section 8.2 pursuant to this Article 8 by JAKKS Pacific shall not exceed US$12,000,000.00 with respect to all Claims for indemnification;
(iv) the amount to be paid by ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ on the one hand and ▇▇▇▇ ▇▇▇▇▇ on the other hand shall not exceed (i) US$250,000.00 in aggregate with respect to the contrary Dragon Ball Z Claims, and (ii) US$250,000.00 in this Agreementaggregate with respect to the Financial Claims;
(v) the indemnification obligations provided herein shall terminate with respect to any Material Adverse Effect for indemnification arising under Section 8.1(a) or Section 8.2(a) that is not made prior to the second anniversary of the Closing Date, except that any Claim under the Company last four sentences of Section 4.1 and Section 4.2, or arising under Section 8.1(b) or Section 8.2(b), or for Securities Claims under the Registration Rights Agreement shall not be liable so limited under this Agreement Section and shall terminate in accordance with the statute of limitations of applicable Law, and the obligation to indemnify for the Holdback Claims shall terminate with respect of:
(a) to any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct ClaimHoldback Claim that is not made during the Holdback Period;
(bvi) if JAKKS Pacific is entitled to receive indemnification from any Loss which is contingent unless of the Shareholders pursuant to Section 8.1 or pursuant to the Registration Rights Agreement, JAKKS Pacific may, upon thirty (30) days prior written Notice to the Agent, offset and until such contingent Loss becomes an actual Loss retain the amount thereof from any payment of the Earn-Out otherwise payable hereunder to that is due and payableShareholder;
(cvii) no indemnified party shall be entitled to any Loss indemnification under this Article 8 (i) to the extent that it actually receives or is entitled to receive any amount in respect of any loss, liability, obligation, damage or expense from other sources, including without limitation insurance or third-party indemnity or (ii) to the extent the matter in question, taken together with all similar matters, does not exceed the amount of any reserves with respect to such Loss arises matters which are reflected in the Financial Statements;
(viii) A Party shall not be entitled to recover under this Article 8:
(1) with respect to consequential damages, including damages for lost profits, or with respect to punitive, exemplary or special damages;
(2) with respect to any failure of warranty or covenant by the other Party which is contained herein if at or before the time of Closing, the Party seeking recovery had actual knowledge of the failure of warranty or covenant;
(ix) the amount of any recovery pursuant to this Article 8 shall be net of any foreign (non-U.S.), U.S. federal, U.S. state and/or local Tax benefits inuring to the indemnified party as a result of a failure by Glencore the state of facts which entitled the indemnified party to comply with any of its obligations under this Agreementrecover from the indemnifying party pursuant to Article 8;
(dx) no Shareholder shall be liable for indemnification to JAKKS Pacific with respect to any changes Material Adverse Effect of JAKKS Pacific which is indemnifiable hereunder in Applicable Law or changes an amount which exceeds such Shareholder's pro-rata portion of the aggregate amount of such Claim (such pro rata portion being computed on the basis of the ratio of the total number of Shares owned by such Shareholder immediately prior to the Closing to the total number of Shares outstanding (except that all such computations with respect to ▇▇▇▇▇ ▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be made as to the number of Shares owned by them in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsthe aggregate).
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any Notwithstanding anything to the Fundamental Company Representations or any breach of any covenant contrary herein, (i) the aggregate liability of the Company Stockholders for Damages under Section 7.1(a) shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law not exceed fifteen percent (or in the case 15%) of the covenants of the Company, such shorter period expressly specified thereinPurchase Price (“Cap”); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (aii) the Company Stockholders shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (iiunder Section 7.1(a) unless and until the aggregate amount Damages for which they would otherwise be liable thereunder exceed one percent (1%) of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and Purchase Price (b) at which point the Company's maximum liability Stockholders shall become liable for the aggregate Damages under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] 7.1(a) in excess of 1% of the aggregatePurchase Price (“Floor”); provided provided, that the foregoing limitations set forth in this sentence shall not apply to (A) claims based on fraud and claims for equitable relief or (B) a claim pursuant to Section 7.1(a) relating to a breach of the representations and warranties set forth in Sections 2.1, 2.2, 3.1, 3.2, 3.3, 3.9, 3.16 or 3.21. For purposes solely of this Article VII, all representations and warranties of the case of fraud by Stockholders and Rotmans in Article II and Article III (other than Sections 3.7, 3.15(a)(x) and 3.31) shall be construed as if the Company.
term “material” and any reference to “Rotmans Material Adverse Effect” (4and variations thereof) Notwithstanding anything were omitted from such representations and warranties. Subject to the contrary in this AgreementCap and Floor provisions above, the Company shall aggregate liability of the Stockholders for Damages hereunder cannot be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;exceed the Purchase Price
(b) any Loss which is contingent unless For purposes solely of this Article VII, all representations and until warranties of Buyer in Article IV shall be construed as if the term “material” were omitted from such contingent Loss becomes an actual Loss that is due representations and payable;warranties.
(c) Buyer shall have a right to set off any Loss Damages against any outstanding promissory note held by either Stockholder (“Set-Off”). The Set-Off is intended to secure the extent that such Loss arises as a result indemnification obligations of a failure by Glencore to comply with any of its obligations the Stockholders under this Agreement;. However, the rights of Buyer under this Article VII shall not be limited to the Set-Off nor shall the Set-Off be the exclusive means for Buyer to enforce such rights.
(d) Except with respect to claims based on fraud and claims for equitable relief, after the Closing, the rights of the Indemnified Parties under this Article VII, Article VIII shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any changes misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; orthis Agreement.
(e) Neither Stockholder shall have any changes right of contribution against Rotmans with respect to any breach by Rotmans of any of its representations, warranties, covenants or agreements contained in Applicable Accounting Standards this Agreement or generally accepted interpretation or application of Applicable Accounting Standardsany other agreement contemplated hereby.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) The Parent Indemnified Parties will not be entitled to indemnification, compensation and reimbursement with respect to any General Representation Claim arising out pursuant to Section 6.2(a) unless the Parent Indemnified Parties have incurred, as to all General Representation Claims, Losses in excess of any breach or inaccuracy of any [***]in the Fundamental Company Representations or any breach of any covenant of aggregate (the Company “Basket”), after which the Parent Indemnified Parties shall be wholly barred entitled to be indemnified for Losses from the first dollar.
(b) Subject to Sections 6.4(a) and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or 6.4(e), in the case of the covenants of the Companyany General Representation Claim, each Indemnifying Securityholder shall be severally and not jointly liable for such shorter period expressly specified therein); and
(b) any Claim arising out Indemnifying Securityholder’s Pro Rata Share of any breach or inaccuracy of any of Losses resulting therefrom, provided that the representations and warranties of aggregate liability for the Company contained in this Agreement, other than the Fundamental Company Representations, Indemnifying Securityholders for all General Representation Claims shall be wholly barred capped at [***] (the “General Representation Cap”). The Basket and unenforceable unless a written notice of claim in accordance with Section 9.03 the General Representation Cap shall not apply to Claims or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this AgreementLosses under any Special Matters, or any Claims or Losses for Fraud.
(2c) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall The Stockholder Indemnified Parties will not be liable entitled to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (iiindemnification, compensation pursuant to Section 6.3(a) unless and until the aggregate amount of all Losses for which the Stockholder Indemnified Parties would, but for this Section 6.4(c) be entitled to indemnification hereunder exceeds the Basket, after which the Stockholder Indemnified Parties shall be entitled to be indemnified for Losses in excess of such amount, up to the General Representation Cap.
(d) In no event will the aggregate amount of Losses for which the Stockholder Indemnified Parties will be indemnified and held harmless and entitled to recover under Section 6.3(b) exceed $[Redacted - Commercially sensitive information***] and then only provided, further, that notwithstanding anything herein to the contrary, no Stockholder Indemnified Party shall have the right to be indemnified for any Losses to the extent they are in the nature of such excess; and (a) consequential or special damages or (b) punitive or exemplary damages.
(e) Notwithstanding anything herein to the Company's contrary, there shall be no maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply for any Indemnifying Securityholder in the case of fraud by any claim for Fraud. Furthermore, in no event will any Indemnifying Securityholder be liable for (i) any other Indemnifying Securityholder’s Fraud or (ii) breach of any other Company Securityholders’ covenants or agreements contained in this Agreement, any Joinder Agreement or any other agreement entered into in connection with the Companytransaction contemplated hereby.
(4f) In determining whether there is an inaccuracy in or breach of a representation or warranty, or the amount of any Losses in respect of any such inaccuracy or breach, any materiality, Material Adverse Effect or similar qualification limiting the scope of such representation or warranty shall be disregarded.
(g) The representations, warranties, covenants, and agreements of the parties contained in this Agreement, and the rights and remedies that the Indemnified Parties are entitled to hereunder, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation (or right thereto or opportunity thereof) made by, or by virtue of the knowledge of, any Indemnified Party or any of their respective Representatives of the affairs of the Company or any of its Subsidiaries or any Indemnifying Securityholder or Parent or Merger Sub, as applicable, or any inaccuracy in or breach of any representation, warranty, covenant or agreement of the Company, whether such knowledge arose before or after the Agreement Date. No Indemnified Party shall be required to show reliance on any representation, warranty, covenant or agreement in order for such Indemnified Party to be entitled to indemnification, compensation and reimbursement hereunder.
(h) Any liability for indemnification under this Article 6 will be determined without duplication of recovery for the same Losses by reason of the state of facts giving rise to such liability.
(i) Notwithstanding anything to the contrary in this Article VI or otherwise in this Agreement, the Company Indemnifying Securityholders shall not be liable under Article VI or otherwise in this Agreement in with respect of:
to (aand Parent shall pay or cause to be paid) (i) any consequentialTaxes that were taken into account in the calculation of Indebtedness, specialNet Working Capital, indirectTransaction Expenses or otherwise taken into account in the calculation of the Initial Merger Consideration as finally determined pursuant to Section 2.12(f), multiple-of-profit (ii) Taxes incurred by the Surviving Corporation, Parent or punitive damages or Losses in connection with any of their respective Affiliates as a Direct Claim;
result of actions outside the ordinary course of business taken after the Closing on the Closing Date, (biii) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises Taxes arising as a result of a failure breach by Glencore to comply with Parent, the Surviving Corporation or any of its obligations under this Agreement;
their Affiliates of Article VII, or (dz) any changes Taxes of the Company incurred after the Closing Date (other than 60 Taxes arising directly as a result of a breach of a representation contained in Applicable Law Section 3.7(f), (i), (k), (l), (q), (p) or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardss)).
Appears in 1 contract
Limitations. (1i) Notwithstanding The aggregate amount for which the Company Stockholders shall be liable pursuant to this Article X shall not exceed ten percent (10%) of the Merger Consideration; provided, however, that the limitation set forth in this Section 10.6 shall not apply to any other provision of this Agreement:
(a) any Claim arising out of right to indemnification for any breach or inaccuracy claim of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, Sections 4.1(a) (other than the Fundamental second and last sentences thereof), 4.1(b), or 4.1(c)(i).
(ii) The liability of each Company RepresentationsStockholder under this Article X shall be determined on an Escrowed Pro Rata Basis and, except as provided in Sections 10.6(a)(i) and 10.6(a)(iii), shall not exceed such Company Stockholder's respective share of the Escrow.
(iii) Notwithstanding any provisions of Sections 10.6(a)(i) and 10.6(a)(ii), and except as provided in 10.6(a)(iv), the aggregate liability of each Company Stockholder for claims of breach of the representations and warranties contained in Sections 4.1(a) (other than the second and last sentences thereof), 4.1(b), or 4.1(c)(i) shall be wholly barred limited to the aggregate Merger Consideration received by such Company Stockholder.
(iv) Except for Losses based upon fraud , the sole remedy of Itron, the Surviving Corporation, or their respective directors, officers and unenforceable unless a written notice other Affiliates for breaches of claim this Agreement shall be claims made in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee and subject to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company limitations in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;Article X.
(b) Except for claims for any Loss which is contingent unless breach or claim of breach of the representations and until such contingent Loss becomes warranties contained in Section 4.1(a) (other than the second and last sentences thereof), 4.1(b), or 4.1(c)(i), the indemnification obligations of the Company Stockholders under this Article X shall be satisfied by payment to Itron of the obligations by all Company Stockholders from the Escrow on an actual Loss that is due and payable;
(c) any Loss Escrowed Pro Rata Basis. The aggregate value of claims paid by means of the payments to Itron pursuant to this Article X shall be deemed to reduce the total Merger Consideration otherwise payable to the extent that such Loss arises as a result of a failure by Glencore Company Stockholders pursuant to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsSection 3.1.
Appears in 1 contract
Sources: Merger Agreement (Itron Inc /Wa/)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any Notwithstanding anything to the Fundamental Company Representations or any breach of any covenant contrary herein, (i) the aggregate liability of the Company Indemnifying Stockholders for Damages under this Article VI shall not exceed the amount of the Escrow Shares, and (ii) the Buyer shall not be entitled to be indemnified for any Damages under this Article VI unless the aggregate of all Damages for which the Buyer would, but for this clause (ii), be entitled to indemnification exceeds $250,000, at which point the Buyer shall be wholly barred entitled to be indemnified for its aggregate Damages, and unenforceable unless a written notice not just those in excess of claim $250,000, and (iii) each Indemnifying Stockholder shall only be liable for his, her or its pro rata share (determined in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case Escrow Agreement) of the covenants Damages for which the Indemnifying Stockholders are liable under this Article VI; provided that the limitations set forth in this sentence shall not apply to a claim pursuant to Section 6.1(a) relating to a breach of the Companyrepresentations and warranties set forth in Sections 2.2 or 2.3 and provided further that clause (ii) above shall not apply to a claim under Section 6.1(c), such shorter period expressly specified therein(e) or (f); and
(b) any Claim arising out . For purposes solely of any breach or inaccuracy of any of the this Article VI, all representations and warranties of the Company contained in this Agreement, Article II (other than the Fundamental Company Representations, Section 2.7) shall be wholly barred construed as if the term “material” and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee any reference to the “Company within 12 months of the date of this AgreementMaterial Adverse Effect” (and variations thereof) were omitted from such representations and warranties.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in herein, (i) the aggregate liability of the Buyer for Damages under this AgreementArticle VI shall not exceed $6,000,000, and (ii) the Company Indemnifying Stockholders shall not be liable entitled to be indemnified for any Damages under this Agreement Article VI unless the aggregate of all Damages for which the Indemnifying Stockholders would, but for this clause (ii), be entitled to indemnification exceeds $250,000, at which point the Indemnifying Stockholders shall be entitled to be indemnified for their aggregate Damages, and not just those in respect of:
excess of $250,000; provided that the limitation set forth in this sentence shall not apply to a claim pursuant to Section 6.2(a) relating to a breach of the representations and warranties set forth in Sections 3.2 or 3.3. For purposes solely of this Article VI, all representations and warranties of the Buyer and the Transitory Subsidiary in Article III (aother than Sections 3.5 and 3.6) shall be construed as if the term “material” and any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
reference to “Buyer Material Adverse Effect” (band variations thereof) any Loss which is contingent unless were omitted from such representations and until such contingent Loss becomes an actual Loss that is due and payable;warranties.
(c) The Escrow Agreement shall be the sole and exclusive means for the Buyer to collect any Loss Damages for which it is entitled to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations indemnification under this Agreement;Article VI.
(d) Except with respect to claims based on fraud or intentional misrepresentation, after the Closing, the rights of the Indemnified Parties under this Article VI and the Escrow Agreement shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any changes misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; orthis Agreement.
(e) No Indemnifying Stockholder shall have any changes right of contribution against the Company or the Surviving Corporation with respect to any breach by the Company of any of its representations, warranties, covenants or agreements.
(f) Any Damages relating to a claim pursuant to Section 6.1 shall be reduced by the amount of any insurance proceeds received by the Buyer or Surviving Corporation under a policy or policies maintained by the Company prior to the Closing with respect to such claim. Buyer shall use commercially reasonable efforts to collect any such proceeds; provided, however, that it shall not be required to commence any legal proceedings in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsconnection with such efforts.
Appears in 1 contract
Sources: Merger Agreement (TechTarget Inc)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim With respect to claims for Damages arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with under Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(18.1(a), any Claim arising out of any breach 8.1(h) or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to 8.2(a), the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) Equity Holders and the Company Seller shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and Damages until the aggregate amount of all Losses such Damages under Sections 8.1(a), 8.1(h) and 8.2(a) exceeds $[Redacted - Commercially sensitive information] 450,000 (at which point the Equity Holders and then the Seller shall become liable only to the extent for aggregate Damages under Sections 8.1(a), 8.1(h) and 8.2(a) in excess of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate450,000); provided that the foregoing limitations limitation set forth in this sentence shall not apply to (i) claims based on fraud or knowing misrepresentation or (ii) any claim pursuant to Section 8.1(a), 8.1(h) or 8.2(a) relating to a breach of the Tax-Related Representations, the Constitutive Representations or the representations and warranties set forth in the case of fraud by the CompanySections 2.27, 3.8 or 4.5.
(4b) Except for claims based on (i) fraud or knowing misrepresentation, (ii) a breach of the Tax-Related Representations or Section 9.2 or (iii) the Constitutive Representations, the General Escrow Fund shall be the exclusive means for the Buyer to collect any Damages for which it is entitled to indemnification under Sections 8.1(a) and 8.1(h) from any Equity Holder or the Seller. Without limiting the foregoing, the Buyer shall not attempt to collect any Damages with respect to a claim for indemnification under Section 8.1(a) or 8.1(h) directly from any Equity Holder or the Seller unless there are insufficient unclaimed General Escrow Funds remaining to satisfy such Damages pursuant to the Escrow Agreement. The General Escrow Fund and the Special Escrow Fund shall be the exclusive means for the Buyer to collect any Damages for which it is entitled to indemnification with respect to the Special Obligations. Any claims for Damages with respect to the Special Obligations shall be satisfied first from the Special Escrow Fund and then, if the Special Escrow Fund is insufficient, from the General Escrow Fund. Neither the General Escrow Fund nor the Special Escrow Fund shall be available for claims arising under Section 8.2, which claims shall be solely the obligation of the applicable Equity Holder.
(c) Notwithstanding anything to the contrary in this Agreement, but subject to the Company shall not be liable limitations set forth in Sections 8.5(a) and (b) and except for claims based on fraud or knowing misrepresentation, (i) the aggregate Liability of the Equity Holders and the Seller for all Damages under this Agreement in shall not exceed 40% of the Adjusted Purchase Price and, for each Equity Holder and the Seller, shall not exceed 40% of its pro rata percentage of the Adjusted Purchase Price (including such Equity Holder’s and the Seller’s pro rata percentage of the General Escrow Fund and the Special Escrow Fund), and (ii) the aggregate Liability of the Equity Holders and the Seller for any claim made under this Agreement shall not exceed the aggregate amount of Damages for such claim and, except with respect of:
(a) any consequentialto Damages under Section 8.2, specialfor each Equity Holder and the Seller, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until shall not exceed its pro rata percentage of the aggregate amount of Damages for such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss claim. With respect to the extent that preceding sentence, the pro rata percentages of the Equity Holders and the Seller, both individually and collectively, shall be as set forth on Schedule 8.5(c) attached hereto. The aggregate Liability of each Equity Holder for Damages under Section 8.2 shall be limited to matters involving such Loss arises Equity Holder, and no Equity Holder shall have any Liability for Damages under Section 8.2 as a result of a failure by Glencore to comply with matters involving any of its obligations other Equity Holder. The Seller shall not have any Liability for Damages under this Agreement;Section 8.2.
(d) The Equity Holders and the Seller shall not have any changes in Applicable Law right of contribution against the Company with respect to any breach by the Company of any of its representations, warranties, covenants or changes in generally accepted interpretation or application of Applicable Law; oragreements.
(e) Except with respect to claims based on fraud or knowing misrepresentation and claims arising under Article IX, after the Closing, the rights of the Buyer under this Article VIII shall be the exclusive remedy of the Buyer with respect to claims resulting from or relating to any changes misrepresentation, breach of warranty or failure to perform any covenant or agreement of any Equity Holder, the Seller or the Company contained in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsthis Agreement.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out The Indemnitor shall be obligated to indemnify the Indemnitee only when the aggregate of any breach all Losses suffered or inaccuracy incurred by the Indemnitee as to which a right of any indemnification is provided under this Article 14 exceeds Two Hundred Fifty Thousand Dollars ($250,000) (the Fundamental Company Representations "Threshold Amount"). After the aggregate of all Losses suffered or any breach of any covenant incurred by the Indemnitee exceeds the Threshold Amount, the Indemnitor shall be obligated to indemnify the Indemnitee for all such Losses without reduction by the Threshold Amount. Notwithstanding the above, (i) the Threshold Amount limitation shall not apply to the indemnification rights of the Company shall be wholly barred parties hereto for Losses resulting from those liabilities described in Sections 14.1(b), 14.1(c), 14.1(d), 14.1(e), 14.1(f), 14.1(g), 14.2(b) and unenforceable unless 14.2(c) or for Losses resulting from a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of Seller and Shareholder set forth in Sections 5.2, 5.12, 5.18 and 5.19 and the Company contained representations and warranties of Seller and Shareholder in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee Article 5 as to the Company within 12 months title to any of the date of this AgreementAcquired Assets.
(2b) Notwithstanding Section 9.02(1), any Claim arising out The Indemnitor shall not be liable for Losses in excess of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused the actual Losses suffered by the Indemnitee as a result of fraud may be brought at any time on the act, circumstance, or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect condition for which indemnification is sought net of any breach of insurance proceeds received by the Indemnitee or any representation or warranty tax benefits realized by the Indemnitee as a result of the Company in this Agreement: (i) Losses for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Companywhich indemnification is claimed.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss With the exception of claims for fraud, the remedies provided in this Article 14 for breaches of representations, warranties and covenants contained herein constitute the sole and exclusive remedies available to the extent that parties with respect to such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;breaches and the transaction contemplated hereby in law or equity.
(d) any changes In no event shall Seller's and Shareholder's combined aggregate liability under this Article 14 exceed the total amount of the Purchase Price received under Section 3.1, and Seller's and Shareholder's combined aggregate liability under Section 14.1(a) for the breach of the representations and warranties contained in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
Section 5.12 and under Section 14.1(e) shall not exceed Twenty Million Dollars (e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards$20,000,000).
Appears in 1 contract
Limitations. (1i) Any Claim shall be offset or reduced by the amount of any insurance proceeds or net tax benefits , hereinafter "Tax Benefits") received by any party to such Claim.
(ii) Notwithstanding the foregoing, in no event shall the amount of liability of Seller and Stockholders to Buyer for breach of any representation, warranty, indemnity or covenant or otherwise under, or arising in connection with, this Agreement (including, without limitation the indemnification set forth above and the obligations under all exhibits hereto) exceed an amount equal to (x) $1,500,000 (after deducting any insurance proceeds and Tax Benefits received therefrom), in aggregate, or (y) $1,000,000 (after deducting any insurance proceeds and Tax Benefits received therefrom), for all matters other provision than claims arising out of project work (excluding, in clauses (x) and (y), matters set forth in the last sentence of this Agreement:
paragraph). The liability, if any, of the Stockholders to the Buyer pursuant to this Section 6.4 shall be joint and several. However, nothing in this Section 6.4 shall limit, in any manner (awhether by time, amount, procedure or otherwise), any remedy at law or in equity to which a party may be entitled as a result of, (x) actual fraud by the other party, including any wilful failure to disclose matters that should have been disclosed pursuant to Article 2 hereof; or (y) any Claim resulting or arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance Seller's Datablade project with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this AgreementInformix Corporation.
(2iii) Notwithstanding Section 9.02(1)Except as provided in subsection (ii) above, this section 6.4 shall set forth the sole and exclusive remedy and recourse (and corresponding liability for any party) of the parties arising from a Claim, cause of action, any Claim arising out other claim, or right of nature against a party or any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Lawits officers, directors, employees, agents and representatives.
(3iv) Notwithstanding Buyer and Seller shall act in good faith and in a commercially reasonable manner to mitigate any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; Claims and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Companydamages they may suffer.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.
Appears in 1 contract
Sources: Asset Purchase Agreement (Butler International Inc /Md/)
Limitations. (1The party(ies) Notwithstanding any other provision of making a claim for indemnification under this AgreementArticle 7 are referred to as the “Indemnified Parties”, and the party(ies) against whom such claim is asserted under this Article 7 are referred to as the “Indemnifying Parties.” The indemnification provided for in Section 7.2(a) and Section 7.2(b) shall be subject to the following limitations:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company a. The Indemnifying Parties shall not be liable required to provide indemnification with respect to any Glencore Indemnitee in respect of any breach of any representation Losses under Section 7.2(a)(i) or warranty of Section 7.2(b)(i), as the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) case may be, unless and until the aggregate amount of all Losses in respect of indemnification claims under Section 7.2(a)(i) or Section 7.2(b)(i), as applicable, exceeds $[Redacted - Commercially sensitive information] and then only 200,000 (the “Basket Amount”), at which point, the Indemnifying Parties shall be required to provide indemnification in respect of the full amount of Losses from the first dollar; provided, however, that the limitation set forth in this Section 7.3(a) shall not be applicable to claims for Fraud, intentional misrepresentation or willful breach, or claims arising from inaccuracies in or breaches of the Fundamental Representations or IP Representations.
b. Notwithstanding anything in this Agreement to the extent of such excess; and (b) contrary:
i. the Company's maximum liability aggregate amount required to be paid by the Indemnifying Parties to the Indemnified Parties under Section 9.01 7.2(a)(i) or Section 7.2(b)(i), as the case may be, shall not exceed $[Redacted - Commercially sensitive information] in 4,042,500 (the aggregate“General Representations Cap”); provided provided, however, that the foregoing limitations limitation set forth in this Section 7.3(b)(i) shall not apply be applicable to claims for Fraud, intentional misrepresentation or willful breach, or claims arising from inaccuracies in or breaches of the case of fraud Fundamental Representations or the IP Representations;
ii. the aggregate amount required to be paid by the CompanySeller Indemnifying Parties to the Parent Indemnified Parties under Section 7.2(a)(i) with respect to the IP Representations, shall not exceed fifty-five percent (55%) of the Final Merger Consideration actually received; provided, however, that the limitation set forth in this Section 7.3(b)(ii) shall not be applicable to claims for Fraud, intentional misrepresentation or willful breach; and
iii. the aggregate amount required to be paid by the Seller Indemnifying Parties to the Parent Indemnified Parties (A) under Section 7.2(a)(i) with respect to the Fundamental Representations, and (B) under Sections 7.2(a)(ii) through 7.2(a)(viii) (in each case, when such Losses are aggregated with all other Losses recovered by the Parent Indemnified Parties hereunder) shall not exceed the Final Merger Consideration actually received (the “Purchase Price Cap”); provided, however, that the limitation set forth in this Section 7.3(b)(iii) shall not be applicable to claims for Fraud, intentional misrepresentation or willful breach; and
iv. except with respect to claims for Fraud, intentional misrepresentation or willful breach, the aggregate amount required to be paid by the Parent Indemnifying Parties to the Company Stockholders under Section 7.2(b)(ii) shall not exceed the Purchase Price Cap; and
v. except with respect to claims for Fraud, intentional misrepresentation or willful breach committed by such Equityholder with actual knowledge thereof, the aggregate amount required to be paid by any Equityholder pursuant to this Article 7 shall not exceed the Final Merger Consideration actually received by such Equityholder.
(4) c. Following the Closing, this Article 7 shall constitute the sole and exclusive remedy for recovery for Losses from the Indemnifying Parties by the Indemnified Parties for all matters indemnifiable by the Indemnifying Parties pursuant to Section 7.2. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company shall not be liable under nothing contained in this Section 7.3 or elsewhere in this Agreement in shall limit or be construed to limit the rights of any Indemnified Party to make or with respect of:
to, or otherwise waive or release, (ai) any consequentialclaims for specific performance or other equitable remedies, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(bii) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
claims relating to any other agreements contemplated hereby, or (ciii) any Loss claims relating to Fraud, intentional misrepresentation or willful breach of such person who committed such Fraud, intentional misrepresentation or willful breach.
d. Nothing herein shall limit the extent that such Loss arises as a result liability of a failure Equityholder for any Fraud, intentional misrepresentation, or willful breach or misconduct committed by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardssuch Equityholder.
Appears in 1 contract
Sources: Merger Agreement (Mitek Systems Inc)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out The Indemnitor shall be obligated to indemnify the Indemnitee only when the aggregate of any breach all Losses suffered or inaccuracy incurred by the Indemnitee as to which a right of any indemnification is provided under Section 12.1(a) or 12.2(a) exceeds Twenty-Five Thousand Dollars ($25,000.00) (the Fundamental Company Representations “Threshold Amount”). After the aggregate of all Losses suffered or any breach incurred by the Indemnitee exceeds the Threshold Amount, the Indemnitor shall be obligated to indemnify the Indemnitee only to the extent the aggregate of any covenant all such Losses exceeds the Threshold Amount. In no event shall the aggregate Liability of Seller or Company, or the aggregate Liability of Purchaser, under this Article 12 exceed the Final Purchase Price (the “Maximum Amount”). Notwithstanding the above, neither the Threshold Amount nor the Maximum Amount limitations shall apply to the indemnification rights of the parties hereto for Losses resulting from (i) those Liabilities arising pursuant to breaches of breaches of representations and warranties of Seller or Company shall be wholly barred in Sections 3.1, 3.2, 3.4, 3.6, 3.9(b), 3.12, 3.17, and unenforceable unless a written notice 3.18, and any other representations and warranties of claim Seller or Company in accordance with Section 9.03 Article 3 as to title of the Shares or Section 9.04 is delivered the Business Assets, and (ii) those Liabilities described in Sections 12.1(b), 12.1(c), 12.1(d), 12.2(b), and 12.2(c) and the payment of such amounts by the Glencore Indemnitee to Indemnitor shall not count toward the Company on or prior to the latest date permitted by applicable law (or in the case calculation of the covenants Maximum Amount of the Company, such shorter period expressly specified therein); andIndemnitor.
(b) any Claim arising out of any breach or inaccuracy of any The Indemnitor shall not be liable for Losses in excess of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered actual Losses suffered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on the act, circumstance, or prior to the latest date permitted by Applicable Lawcondition for which indemnification is sought.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out Notwithstanding anything to the contrary herein, the aggregate liability of the Indemnifying Shareholders, on the one hand, and the Buyer, on the other hand, for Damages under this Article VI shall not exceed the value of the Escrow Shares, except that such limitation shall not apply to limit the liability of any breach Indemnifying Shareholder or inaccuracy of any the Fundamental Company Representations Buyer for fraud by such Indemnifying Shareholder or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in Buyer, as the case may be. For purposes solely of the covenants of the Companythis Article VI, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the all representations and warranties of the Company in Article II (other than Sections 2.6, 2.7, 2.13(a), 2.14(a), 2.20(a), 2.29 and 2.30) and all representations and warranties of the Buyer and the Transitory Subsidiary (other than Sections 3.5 (as to the penultimate sentence only), 3.8, 3.9 and 3.10) shall be construed as if the term "material" and any reference to "Company Material Adverse Effect" and "Buyer Material Adverse Effect" (and variations thereof) were omitted from such representations and warranties, except to the extent such references qualify the requirements of the Buyer to list specified agreements, documents or permits on the Disclosure Schedule.
(b) Neither the Indemnifying Shareholders on the one hand, nor the Buyer on the other, shall be liable for Damages incurred by the other under this Article VI unless and until such Damages, together with all other Damages incurred by such other party, exceed $250,000, in which case such Indemnifying Party shall only be liable for such Damages in excess of $250,000; provided, that the foregoing limitation shall not apply with respect to claims made by the Buyer pursuant to Section 6.1(b).
(c) After the Closing, the rights of the Indemnified Parties under this Article VI and the Escrow Agreement shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought except that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations limitation shall not apply in to limit the liability of any Indemnifying Shareholder or the Buyer for fraud by such Indemnifying Shareholder or the Buyer, as the case of fraud by the Companymay be.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) No Indemnifying Shareholder shall have any changes in Applicable Law right of contribution against the Company or changes in generally accepted interpretation the Surviving Corporation with respect to any breach by the Company of any of its representations, warranties, covenants or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsagreements.
Appears in 1 contract
Sources: Merger Agreement (Be Free Inc)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any Except with respect to claims based on fraud, the Fundamental Company Representations or any breach of any covenant rights of the Company Indemnified Persons under this Section 7 shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case exclusive remedy of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach Indemnified Persons with respect to claims resulting from or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee relating to the Company within 12 months of the date of this Agreement.
(b) Except with respect to claims based on fraud or as otherwise expressly set forth in this Section, the aggregate liability of the Shareholders pursuant to this Agreement (other than Section 8 hereof) shall not exceed thirty-three per cent (33%) of the fair market value of the Acquisition Shares issued pursuant to Section 1.03 above (which shall, for all purposes of this Agreement, be valued at $20.00 per share). No claim shall be made by the Indemnified Persons hereunder until the aggregate Damages under this Agreement exceed $75,000, in which case the Shareholders shall be liable for amounts in excess of that amount. Notwithstanding the foregoing, the liability of Woge▇ ▇▇▇ited, Legis Trust Limited and the Mart▇▇ ▇▇▇▇ ▇▇▇7 Settlement on account of a breach by such Shareholder of the representations in Section 2 and 3.04 (insofar as they relate to each such Shareholder severally) shall be one hundred per cent (100%) of the fair market value (being $20.00 per Share) of the Acquisition Shares issued to each such Shareholder and the representations of such persons in Sections 2 and 3.04 (insofar as they relate to such Shareholder severally) shall survive indefinitely (and the $75,000 basket in the preceding sentence shall not apply) until such time as such Shareholder delivers to the Buyer a legal opinion of a law firm admitted to practice in the jurisdiction under which the Shareholder is organized, to the effect that (1) the Shareholder has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby; (2) Notwithstanding Section 9.02(1), any Claim arising out this Agreement and the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of any breach or inaccuracy the Shareholder; and (3) this Agreement and the other documents described herein to which the Shareholder is a party have been duly and validly executed and delivered by the Shareholder. It is expressly intended by the parties that the foregoing sentence shall be guaranteed by the beneficiaries of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior such Shareholders pursuant to the latest date permitted by Applicable Lawguaranties delivered at the Closing. The Shareholders covenant to obtain the foregoing opinions as promptly as practicable.
(3c) Notwithstanding No claim (other than one relating to a claim by a third party) may be made against a Shareholder under this Section 7 if such claim arises from a breach which is capable of remedy unless and until the Shareholders are given notice of such breach and such breach is not remedied within 30 days of the date that notice is received.
(d) The Buyer shall cause i-Cube to promptly reimburse the Shareholders for any other provision of this Agreement: (a) amounts paid by the Company shall not be liable to any Glencore Indemnitee Shareholders in respect of any breach of any representation or warranty of claim to the Company in this Agreement: extent that (i) such Shareholders have indemnified i-Cube in full for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only i-Cube or its affiliates recover insurance proceeds relating to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided claim or are otherwise reimbursed for such claim by a third party. Provided that the foregoing limitations shall not apply Shareholders have paid i-Cube in the case of fraud by the Companyfull for a claim, i-Cube undertakes to use reasonable efforts to collect available insurance for such claim.
(4e) Notwithstanding anything expressed or implied in this Agreement to the contrary in this Agreementcontrary, any payment by the Company shall not be liable under this Agreement in respect of:
Shareholders (a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises including as a result of a failure return of Escrow Shares) to the Buyer pursuant to a claim or an adjustment made pursuant to Section 1.04 shall be treated for all purposes by Glencore the parties to comply with this Agreement as a reduction in the consideration paid (on the basis of $20 per Acquisition Share returned) for the Shares.
(f) No claims shall be made against any Shareholders to the extent that a breach arises solely as a result of its obligations under the adoption of legislation after the Closing which is applied to the period prior to the Closing, if such breach would not have arisen if such legislation had not been retroactively applied.
(g) For any dollar of Damages incurred, the Buyer shall only be entitled to recover one dollar of indemnification hereunder.
(h) The Buyer acknowledges that in entering into this Agreement it is relying on the warranties and representations in this Agreement and not upon any other warranties, undertakings or representations of any description given by or on behalf of the Shareholders, except as contained in a writing and contemplated by this Agreement;.
(di) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; orExcept for claims based on fraud, the Buyer shall have no right to rescind this Agreement.
(ej) Any disclosure set out in any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsSchedules to this Agreement shall be deemed to be a disclosure under other Schedules, to the extent that it is clear from such disclosure that it applies to such other Schedules.
Appears in 1 contract
Sources: Share Purchase Agreement (International Integration Inc)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any Notwithstanding anything to the Fundamental Company Representations or any breach of any covenant contrary herein,
(i) the aggregate Liability of the Company Sellers for Damages under Section 7.1(a) shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 not exceed the Escrow Fund; provided, however, that this limitation shall not apply to any fraudulent misrepresentation, or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Companymisrepresentation, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty made by any Seller in respect any of the following sections: Sections 2.1, 2.3, and 2.9, which indemnity may shall be sought that was caused as a result of fraud may be brought at any time on or prior limited only by an amount equal to the latest date permitted by Applicable Law.Purchase Price, and
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the Sellers shall be liable only for that portion of the aggregate amount of all Losses Damages under Section 7.1(a) for which they would otherwise be liable which exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate100,000; provided that the foregoing limitations limitation set forth in this subparagraph 7.5(a)(ii) shall not apply to any fraudulent misrepresentation or any claim pursuant to Section 7.1(a) relating to a breach of the representations and warranties set forth in the case of fraud by the CompanySections 2.1, 2.3, and 2.9.
(4b) For purposes solely of this Article VII, all representations and warranties of the Sellers in Article II (other than Sections 2.7 and 2.34) shall be construed as if the term “material” and any reference to “Business Material Adverse Effect” (and variations thereof) were omitted from such representations and warranties.
(c) Notwithstanding anything to the contrary herein,
(i) the aggregate Liability of the Buyer for Damages under Section 7.2(a) shall not exceed the Escrow Fund, and
(ii) the Buyer shall be liable for only that portion of the aggregate Damages under Section 7.2(a) for which it would otherwise be liable which exceeds $100,000; provided that the limitation set forth in this Agreement, the Company subparagraph 7.5(c)(ii) shall not be liable under this Agreement apply to a claim pursuant to Section 7.2(a) relating to a breach of the representations and warranties set forth in respect of:
(a) any consequential, special, indirect, multiple-of-profit Sections 3.1 or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;3.2.
(d) any changes For purposes solely of this Article VII, all representations and warranties of the Buyer in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; orArticle III shall be construed as if the term “material” were omitted from such representations and warranties.
(e) The Escrow Agreement is intended to secure the indemnification obligations of the Sellers under this Agreement. However, the rights of the Buyer under this Article VII shall not be limited to the Escrow Fund nor shall the Escrow Agreement be the exclusive means for the Buyer to enforce such rights; provided that the Buyer shall not attempt to collect any changes Damages directly from the Sellers unless there are no remaining funds held in Applicable Accounting Standards escrow pursuant to the Escrow Agreement.
(f) Except with respect to claims based on fraud, after the Closing, the rights of the Indemnified Parties under this Article VII and the Escrow Agreement shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or generally accepted interpretation relating to any misrepresentation, breach of warranty or application of Applicable Accounting Standardsfailure to perform any covenant or agreement contained in this Agreement.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any Notwithstanding anything to the Fundamental Company Representations or any breach of any covenant contrary herein, (i) the aggregate liability of the Company Stockholder for Damages under Section 7.1(a) shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law not exceed (or in the case x) 50% of the covenants of Closing Value minus (y) $1,250,000 (such resulting amount, the Company, such shorter period expressly specified therein); and
“Cap Amount”) and (b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (aii) the Company Stockholder shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (iiunder Section 7.1(a) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability Damages for which he would otherwise be liable under Section 9.01 shall not 7.1(a) exceed $[Redacted - Commercially sensitive information] 1,250,000 (the “Deductible”) (at which point the Stockholder shall become liable for the Damages under Section 7.1(a) that are in excess of the aggregateDeductible); provided provided, that the foregoing limitations set forth in this sentence shall not apply to a claim pursuant to Section 7.1(a) relating to a breach of the representations and warranties set forth in Article II or Sections 3.1 (Organization, Qualification and Corporate Power), 3.2 (Capitalization), 3.3 (Authorization of Transaction), 3.9 (Tax Matters), 3.22 (Employee Benefits) or 3.36 (Customs Matters), or the case first or second sentence of fraud by Section 3.10(a) (Assets). For purposes solely of this Article VII, all representations and warranties of the CompanyStockholder in Articles II and III (other than Sections 3.7 (Absence of Certain Changes) and 3.30 (Disclosure)) shall be construed as if the term “material” and any reference to “Company Material Adverse Effect” (and variations thereof) were omitted from such representations and warranties.
(4b) Notwithstanding anything to the contrary in this Agreementherein, (i) the Company aggregate liability of the Buyer for Damages under Section 7.2(a) shall not exceed the Cap Amount, and (ii) the Buyer shall not be liable under this Agreement in respect of:
(aSection 7.2(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until the aggregate Damages for which it would otherwise be liable under Section 7.2(a) exceed the Deductible (at which point the Buyer shall become liable for the Damages under Section 7.2(a) that are in excess of the Deductible); provided, that the limitations set forth in this sentence shall not apply to a claim pursuant to Section 7.2(a) relating to a breach of the representations and warranties set forth in Sections 4.1 (Organization, Standing and Power), 4.2 (Capitalization) or 4.3 (Authority; No Conflict; Required Filings and Consents). For purposes solely of this Article VII, all representations and warranties of the Buyer in Article IV shall be construed as if the term “material” and any reference to “Buyer Material Adverse Effect” (and variations thereof) were omitted from such contingent Loss becomes an actual Loss that is due representations and payable;warranties.
(c) any Loss The Escrow Agreement is intended to secure the extent that such Loss arises as a result indemnification obligations of a failure by Glencore to comply with any of its obligations the Stockholder under this Agreement;. However, the rights of the Buyer under this Article VII shall not be limited to the Escrow Shares nor shall the Escrow Agreement be the exclusive means for the Buyer to enforce such rights; provided that the Buyer shall not attempt to collect any Damages directly from the Stockholder unless there are no remaining Escrow Shares held in escrow pursuant to the Escrow Agreement.
(d) Except with respect to claims based on fraud or willful misrepresentation, or claims for willful breach of any changes covenant or agreement contained in Applicable Law any of the provisions referenced in Section 13.10 of this Agreement, after the Closing, the rights of the Indemnified Parties under this Article VII and the Escrow Agreement shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or changes relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in generally accepted interpretation this Agreement, and the Indemnified Parties agree to release and relinquish any and all other claims that they may have with respect to such matters, regardless of whether such claims arise by statute, in equity or application of Applicable Law; orat law. 34
(e) The Stockholder shall have no right of contribution against the Companies with respect to any changes in Applicable Accounting Standards breach by any of the Companies of any of its representations, warranties, covenants or generally accepted interpretation or application of Applicable Accounting Standardsagreements.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach Notwithstanding anything to the contrary herein, other than for claims asserting Fraud or inaccuracy of any the Fundamental Company Representations or any breach of any covenant Fundamental Representation, and subject to the provisions of Section 10.14, the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company Equityholders shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (iiunder Section 7.1(a) unless and until the aggregate amount Losses under Section 7.1(a) for which they or it would otherwise be liable under this Article VII exceed $250,000 (the “Deductible Amount”) at which point the Company Equityholders shall become liable for all such Losses in excess of all Losses exceeds $[Redacted - Commercially sensitive information] and then only the Deductible Amount, subject to the extent of such excess; and other limitations set forth in this Section 7.5.
(b) Other than for claims asserting Fraud, the Company's maximum liability Escrow Agreement shall be the exclusive means for the Buyer to collect any Losses for which it is entitled to indemnification under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate7.1(a) from any Company Equityholder; provided provided, that the foregoing limitations shall not apply in the case of fraud a breach of any Fundamental Representation, the exclusive means for the Buyer to collect any such Losses for which it is entitled to indemnification under Section 7.1(a) shall be the Escrow Agreement together with the rights of Buyer under Section 7.6. Other than for claims asserting Fraud, the Escrow Agreement together with the rights of Buyer under Section 7.6 shall be the exclusive means for the Buyer to collect any Losses for which it is entitled to indemnification under Section 7.1(b) through Section 7.1(m) from any Company Equityholder. In the case of claims asserting Fraud, and except as set forth in Section 7.5(c) or in Section 7.5(h), each Company Equityholder shall be liable, severally and not jointly up to such Company Equityholder’s Pro Rata Share of the amount of Losses payable by the CompanyCompany Equityholder to the Buyer; provided, that, except as set forth in Section 7.5(h), the amount of Losses recoverable from any Company Equityholder under Section 7.1 as of any time shall not exceed such Company Equityholder’s Transaction Proceeds as of such time.
(4c) To the extent a claim for indemnification under Section 7.1 is satisfied from the available General Escrow Fund or by set-off pursuant to Section 7.6, the liability of the Company Equityholders shall be joint and several.
(d) Subject to the provisions of Section 7.5(h) and Section 10.14, from and after the Closing, the remedies set forth in this Article VII shall be the exclusive remedies of the Parties with respect to the transactions contemplated by this Agreement.
(e) No Company Equityholder shall have any right of contribution against the Company or the Surviving Corporation with respect to any breach by the Company of any of its representations, warranties, covenants or agreements.
(f) Notwithstanding anything to the contrary in this Agreement, for purposes of determining (i) whether there has been a breach of any representation or warranty set forth in Article II or the Company shall not Closing Certificate and (ii) the amount of Losses for which Buyer may be liable entitled to indemnification under this Agreement Article VII, each such representation or warranty (other than the representations and warranties set forth in Section 2.7 and in Section 2.30) shall be deemed to have been made without any qualifications or limitations as to materiality (including any qualifications or limitations made by reference to a Company Material Adverse Effect).
(g) Payments by Company Equityholders pursuant to Section 7.1 in respect of: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 similar payment actually received by the Indemnified Party in respect of any such claim, net of any costs of collection and increase in insurance premiums.
(ah) Notwithstanding anything to the contrary in this Agreement (including Section 2.31 and this Section 7.5), nothing in this Agreement shall limit the Buyer’s rights or remedies under Section 10.14 or the Buyer’s rights or remedies or the liability of any consequential, special, indirect, multiple-of-profit or punitive damages or Losses Company Equityholder in claims asserting (i) Fraud on the part of such Company Equityholder in connection with a Direct Claim;the transactions contemplated by this Agreement or (ii) the breach of any covenant or agreement of such Company Equityholder set forth in any Ancillary Agreement that is to be performed after the Closing, it being understood that no Company Equityholder shall be liable for (x) any Fraud of any other Company Equityholder in connection with the transactions contemplated by this Agreement (except as otherwise provided under Section 7.1(m) and subject to the limitations in Section 7.5(b)) or (y) the breach of any covenant or agreement of any other Company Equityholder set forth in any such Ancillary Agreement that is to be performed after the Closing.
(bi) In no event shall any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) Company Equityholder be liable to the Buyer for any Loss punitive damages, except to the extent that such Loss arises as paid or payable to a result of a failure by Glencore to comply with any of its obligations under this Agreement;third party.
(dj) The Buyer shall use commercially reasonable efforts to mitigate any changes in Applicable Law Loss upon becoming aware of any event or changes in generally accepted interpretation circumstance that would be reasonably expected to, or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsdoes, give rise thereto.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any Notwithstanding anything to the Fundamental Company Representations or any breach of any covenant contrary herein, (i) the aggregate liability of the Company for Damages under Section 8.1(a) shall be wholly barred not exceed $1,000,000, and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (aii) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (iiunder Section 8.1(a) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not Damages for which it would otherwise be liable exceed $[Redacted - Commercially sensitive information] 20,000 (at which point the Company shall become liable for the aggregate Damages, and not just amounts in the aggregateexcess of $20,000); provided that the foregoing limitations set forth in this sentence shall not apply to a claim pursuant to Section 8.1(a) relating to a breach of the representations and warranties set forth in Sections 3.1 (first and last sentences only), 3.2 or 3.3(b). For purposes solely of this Article 8, all representations and warranties of the case of fraud by Company in Article 3 (other than Section 3.21) shall be construed as if the Companyterm "material" and any reference to "Material Adverse Effect" (and variations thereof) were omitted from such representations and warranties.
(4b) Notwithstanding anything to the contrary in this Agreementherein, (i) the Company aggregate liability of the Purchaser for Damages under Section 8.2(a) shall not exceed $1,000,000, and (ii) the Purchaser shall not be liable under this Agreement in respect of:
(aSection 8.2(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss the aggregate Damages for which it would otherwise be liable exceed $20,000 (at which point the Purchaser shall become liable for the aggregate Damages, and not just amounts in excess of $20,000); provided that is due the limitations set forth in this sentence shall not apply to a claim pursuant to Section 8.2(a) relating to a breach of the representations and payable;warranties set forth in Sections 4.1 or 4.2.
(c) any Loss The Escrow Agreement is intended to secure the extent that such Loss arises as a result indemnification obligations of a failure by Glencore to comply with any of its obligations the Company under this Agreement;. However, the rights of the Purchaser under this Article 8 shall not be limited to the Escrow Fund nor shall the Escrow Agreement be the exclusive means for the Purchaser to enforce such rights; provided that the Purchaser shall not attempt to collect any Damages directly from the Company unless there are no remaining funds held in escrow pursuant to the Escrow Agreement.
(d) Except with respect to claims based on fraud, after the Closing, the rights of the Indemnified Parties under this Article 8 and the Escrow Agreement shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any changes misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsthis Agreement.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out The maximum liability of any breach or inaccuracy of any Seller for the Fundamental Company Representations or any breach of any covenant of the Company matters described in Section 7.2(a) shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or $2,200,000, except in the case of fraud or intentional misrepresentation or the covenants matters described in the next sentence. Notwithstanding the foregoing, (i) the maximum liability of Seller for the Company, such shorter period expressly specified therein); and
matters listed in Section 7.2(a) with respect to (bA) any Claim arising out of any breach or inaccuracy of any of the representations and warranties set forth in Section 3.13(a) (Compliance with Laws) or Section 3.20 (Anti-Bribery Compliance) shall be $5,000,000; and (B) any breach of the Company contained representations and warranties set forth in this AgreementSection 3.1 (Capital Structure; Title to the Purchased Interests), other than the Fundamental Company RepresentationsSection 3.2 (Organization and Good Standing), Section 3.7 (Taxes) or Sections 3.8(c), (d) or (e) (Financial Statements) shall be wholly barred and unenforceable unless a written notice the Purchase Price, (ii) the maximum liability of claim Seller under Sections 5.7(f) or 7.2(d) shall be $5,000,000 (provided, that, with respect to rental costs for the Alternate Property, Seller shall indemnify Buyer only for the amount of rental costs in accordance with Section 9.03 or Section 9.04 is delivered by excess of the Glencore Indemnitee rental costs set forth on the rent schedule attached to the Company within 12 months BCP Lease Amendment, not to exceed $5,000,000), and (iii) there is no maximum liability of the date of this AgreementSeller under Sections 7.2(b) (except with respect to Section 5.7(f)) or 7.2(c).
(2b) Notwithstanding Section 9.02(1), any Claim arising out In determining the amount of any breach or inaccuracy Damages in respect of the failure of any representation or warranty to be true and correct as of any particular date, any materiality standard or qualification contained in respect such representation or warranty shall be disregarded; provided, however, that such materiality standard or qualification shall not be disregarded for the purposes of which indemnity may the initial determination of whether there was a failure of such representation or warranty to be sought that was caused true and correct as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Lawaforesaid.
(3c) Notwithstanding any other provision of this Agreement: (a) anything contained herein to the Company contrary, no Indemnified Person shall not be liable entitled to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) Damages for any individual claim matter described in Section 7.2(a) (except with respect to fraud or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (iiintentional misrepresentation by Seller) unless and until the aggregate total amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only Damages to which such Indemnified Person seeks to be indemnified pursuant to any of the extent of such excess; and (bmatters described in Section 7.2(a) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] 200,000 in the aggregate; provided that aggregate (the foregoing limitations shall not apply in “Basket Amount”), after which point such Indemnified Person may make claims for indemnification for all Damages, including the case of fraud by the CompanyBasket Amount.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Mips Technologies Inc)
Limitations. (1a) Notwithstanding any other provision of anything to the contrary contained in this Agreement, the following limitations shall apply to indemnification claims under this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any no individual claim (or series of related claims) for Losses indemnification under Sections 6.1(a) or 6.2(a) shall be valid and assertable unless the amount of Losses in respect of such claim it is (or series they are) for an amount in excess of $10,000;
(A) except with respect to breaches of the Seller Fundamental Representations, the Seller shall be liable with respect to claims under Section 6.1(a) for only that portion of the aggregate Damages related claims) to such claims (excluding any claims disallowed under Section 6.5(a)(i)), considered together, which exceeds $[Redacted - Commercially sensitive information]; 250,000 and (iiB) unless and until except with respect to breaches of the Buyer Fundamental Representations, the Buyer shall be liable with respect to claims under Section 6.2(a) for only that portion of the aggregate amount of all Losses Damages related to such claims (excluding any claims disallowed under Section 6.5(a)(i)), considered together, which exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and 250,000;
(biii) (A) the Company's maximum aggregate liability of the Seller for indemnification claims under Section 9.01 6.1(a) (other than indemnification claims with respect to breaches of the Seller Fundamental Representations) shall not exceed $[Redacted - Commercially sensitive information] in an amount equal to twenty-five percent (25%) of the aggregate; provided that Purchase Price and (B) the foregoing limitations aggregate liability of the Buyer for indemnification claims under Section 6.2(a) (other than indemnification claims with respect to breaches of the Buyer Fundamental Representations) shall not apply in exceed an amount equal to twenty-five percent (25%) of the case of fraud by the Company.Purchase Price; and
(4iv) Notwithstanding anything with respect to breaches of the contrary in this AgreementSeller Fundamental Representations, the Company aggregate liability of the Seller for indemnification claims under Section 6.1(a) shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;exceed the Purchase Price.
(b) Each Indemnified Party shall (and shall cause its Affiliates to) use commercially reasonable efforts (including by pursuing all legal rights and remedies available) in order to mitigate and minimize the Damages for which indemnification is contemplated by this ARTICLE VI, including pursuing commercially reasonable insurance claims with respect to any Loss which is contingent unless and until such contingent Loss becomes Damages or pursuing in a commercially reasonable manner any indemnification obligations of third parties with respect to any Damages that are or may be the subject of an actual Loss that is due and payable;indemnification claim hereunder.
(c) The amount of Damages recoverable by an Indemnified Party under this ARTICLE VI with respect to an indemnity claim shall be reduced by the amount of any Loss payment received by such Indemnified Party (or an Affiliate thereof), with respect to the extent that Damages to which such Loss arises as a result of a failure by Glencore to comply indemnity claim relates, from an insurance carrier or any other Person. If an Indemnified Party (or an Affiliate) receives any insurance payment in connection with any claim for Damages for which it has already received an indemnification payment from the Indemnifying Party, it shall pay to the Indemnifying Party, within thirty (30) days of its obligations receiving such insurance payment, an amount equal to the excess of (A) the amount previously received by the Indemnified Party under this Agreement;ARTICLE VI with respect to such claim plus the amount of the insurance payments received, over (B) the amount of Damages with respect to such claim which the Indemnified Party has become entitled to receive under this ARTICLE VI.
(d) The representations and warranties of the Parties, and the right of any changes Indemnified Party with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of such Indemnified Party (including by any of its Representatives) or by reason of the fact that such 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 such Indemnified Party’s waiver of any condition set forth in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; orARTICLE V, as the case may be.
(e) any changes in Applicable Accounting Standards The Parties agree that where one and the same set of facts qualifies under more than one provision entitling the Buyer or generally accepted interpretation the Seller to a claim or application of Applicable Accounting Standardsremedy under this Agreement, there shall be only one claim or remedy.
Appears in 1 contract
Limitations. (1i) The Seller Parties shall not be liable to the Buyer Indemnified Parties for any Losses with respect to the matters contained in Section 7.2(a) unless the aggregate of all Losses therefrom exceeds an amount equal to $20,000,000 (the “Deductible”), and then only for Losses in excess of the Deductible.
(ii) Buyer shall not be liable to the Seller Indemnified Parties for any Losses with respect to the matters contained in Section 7.3(a) unless the aggregate of all Losses therefrom exceeds an amount equal to the Deductible, and then only for Losses in excess of the Deductible.
(i) The Seller Parties shall not be liable to the Buyer Indemnified Parties with respect to the matters contained in Section 7.2(a) for any individual Loss (or series of related Losses arising from a common set of facts), unless such individual Loss (or series of related Losses arising from a common set of facts) exceeds $150,000 dollars (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 Deductible in Section 7.4(a)(i).
(ii) Buyer shall not be liable to the Seller Indemnified Parties with respect to the matters contained in Section 7.3(a) for any individual Loss (or series of related Losses arising from a common set of facts), unless such individual Loss (or series of related Losses arising from a common set of facts) exceeds 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 Deductible in Section 7.4(a)(ii).
(c) In no event shall the Seller Parties’ aggregate liability to the Buyer Indemnified Parties for Losses with respect to the matters contained in Section 7.2(a) exceed $300,000,000 (the “Cap”). In no event shall Buyer’s aggregate liability to the Seller Indemnified Parties for Losses with respect to matters contained in Section 7.3(a) exceed the Cap. Table of Contents
(d) Notwithstanding anything herein to the contrary, no Indemnified Party shall be entitled to indemnification or reimbursement under any provision of this Agreement for any amount to the extent such person or its Affiliate has actually been indemnified or reimbursed for such amount under any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations Agreement or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Ancillary Agreement.
(2e) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior anything herein to the latest date permitted by Applicable Lawcontrary, in no event shall an Indemnifying Party be liable under this Article VII for any indirect, incidental, exemplary, punitive, special or consequential damages, other than any such damages for which an Indemnified Party is found liable to a third party through the final resolution of a Third Party Claim.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4f) Notwithstanding anything to the contrary in this Agreementcontained herein, the Company Seller Parties shall not be liable under this Agreement for any Losses to the extent such Losses would not have arisen but for any winding up, a change in respect of:the operation of the Companies by Buyer or its Affiliates after the date hereof, reorganization or change in ownership of any member of Buyer’s group after the date hereof.
(ag) Notwithstanding anything to the contrary contained herein, with respect to any Losses relating to a breach of the representations and warranties in Section 3.15, the Seller Parties shall not be liable for any Losses to the extent arising out of any voluntary sampling, site investigation, plant closure, decommissioning, change in use, plant reconfiguration, subsurface excavation (or any modification of operations that results in sampling, site investigation, plant closure, decommissioning, change in use, plant reconfiguration or subsurface excavation) after the Closing, except for (i) repair and maintenance activities conducted in the ordinary course of business after the Closing, or (ii) any consequentialsampling, specialsite investigation, indirectplant closure, multiple-of-profit decommissioning, change in use, plant reconfiguration, subsurface excavation (or punitive damages any modification of operations that results in sampling, site investigation, plant closure, decommissioning, change in use, plant reconfiguration or Losses subsurface excavation) undertaken after the Closing (A) by or on behalf of Seller Parties, the W▇▇▇▇ Transferee or the Linden Transferee at the W▇▇▇▇ Property or the Linden Property; (B) by or on behalf of Buyer pursuant to its obligations under any consent decree, consent order or other settlement agreement (or any binding agreement, if entered into by the Companies prior to the Closing Date) with any Governmental Authority or under the Transition Services Agreement with respect to the Linden Property; (C) to respond to an imminent and substantial endangerment to the environment or human health; or (D) in connection with specific response to an inquiry, request, claim or demand by a Direct Claim;Governmental Authority.
(h) Notwithstanding anything herein to the contrary, the limitations set forth in Sections 7.4(a), (b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) shall not apply to (i) indemnification for Taxes, which is governed exclusively, subject to Section 5.5(d), by Section 5.5(a) and (ii) any Loss claim for indemnification arising out of, any breach of any Fundamental Representations and Warranties or any failure of any such Fundamental Representation (other than those expressly given as of a date specified therein) to be true and correct as of and as if made on the Closing Date.
(i) Notwithstanding anything herein to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations contrary, in no event shall Seller Parties’ aggregate liability under this Agreement;
, excluding any liability for Taxes, which is governed exclusively, subject to Section 5.5(d), by Section 5.5(a), exceed the Purchase Price (d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsas it may be adjusted pursuant to Section 2.4).
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision The following provisions of this AgreementSection 11.4 shall limit the indemnification obligations hereunder:
(a) The Indemnifying Party shall not be liable for any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable Indemnified Costs pursuant to this Article XI unless a written notice of claim for indemnification in accordance with Section 9.03 11.2 or Section 9.04 11.3 is delivered given by the Glencore Indemnitee Indemnified Party to the Company Indemnifying Party with respect thereto on or before 5:00 p.m., Houston, Texas time, on or prior to the latest date permitted by applicable law that is eighteen (or in the case 18) months after of the covenants of the CompanyClosing Date; provided, such shorter period expressly specified therein); and
however, that written claims for indemnification (bi) any Claim for Indemnified Costs arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of contained in Article III, Section 4.1, Section 4.2, Section 4.3, Section 4.6, Section 4.7, Section 5.1, Section 5.2 and Section 5.5 (the Company in this Agreement: (i“Fundamental Representations”) for may be made at any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; time and (ii) unless for Indemnified Costs arising out of a breach of any covenant may be made at any time.
(b) Except as set forth in this Agreement, an Indemnified Party will not be entitled to any Indemnified Costs with respect to any individual Claim that does not equal or exceed 0.05% of the Purchase Price (the “Individual Indemnity Threshold”), and until all such Claims that equal or exceed the Individual Indemnity Threshold must collectively also exceed the Indemnity Deductible, and thereafter, the Indemnified Party shall only be entitled to indemnity for the amount in excess of the Indemnity Deductible, subject to the limitations set forth in this Agreement. Except as set forth below, the maximum aggregate amount liability of all Losses exceeds $[Redacted - Commercially sensitive information] and then the SN Parties under Section 11.1 shall not exceed the Indemnity Cap. Except as set forth below, the maximum aggregate liability of Buyer under Section 11.1 shall not exceed the Indemnity Cap.
(c) The limitations set forth above in this Section 11.4 shall not apply to any claim for indemnification under Section 11.1 with respect to any breach of (i) the Fundamental Representations or (ii) the indemnification obligations set forth in this Article XI.
(d) With respect to Buyer Indemnified Costs incurred by the Company for which indemnification by the SN Parties is required hereunder, the SN Parties shall be obligated to indemnify the Buyer Indemnified Parties only for such Buyer Indemnified Costs only to the extent of Buyer’s 50% responsibility for such excess; and Buyer Indemnified Costs (b) with the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in other 50% of such Buyer Indemnified Costs being the aggregate; provided that obligation of the foregoing limitations shall not apply in the case of fraud LLC Agreement’s counterparty). With respect to Seller Indemnified Costs incurred by the Company.
(4) Notwithstanding anything Company for which indemnification by Buyer is required hereunder, Buyer shall be obligated to indemnify the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until Seller Indemnified Parties only for such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss Seller Indemnified Costs only to the extent that of Seller’s 50% responsibility for such Loss arises as a result Seller Indemnified Costs (with the other 50% of a failure by Glencore to comply with any such Seller Indemnified Costs being the obligation of its obligations under this LLC Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or’s counterparty).
(e) Each Party acknowledges and agrees that, after the Closing Date, except as otherwise set forth in Section 6.4 and Article XII, Buyer’s and the other Buyer Indemnified Parties’ and the SN Parties’ and the other Seller Indemnified Parties’ sole and exclusive remedy with respect to the Indemnified Costs shall be in accordance with, and limited by, the provisions set forth in this Article XI.
(f) For purposes of determining any changes Losses resulting from a breach of any of the SN Parties’ representations and warranties contained in Applicable Accounting Standards Article III or generally accepted interpretation Article IV for which Buyer Indemnified Parties would be entitled to indemnification, any dollar or application of Applicable Accounting Standardsmateriality qualifications in the SN Parties’ representations and warranties shall be disregarded.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) No amount shall be payable to the Stockholders in satisfaction of claims for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (iiindemnification pursuant to Section 12.3(a)(i) unless and until the aggregate amount of all Losses of the Stockholders arising therefrom exceeds $[Redacted - Commercially sensitive information] the Threshold, at which time Parent shall indemnify the Stockholders for the full amount of all such Losses from and then only including the first dollar of all such Losses up to an amount equal to the extent Cap; provided that (A) the Threshold shall not apply with respect to any Losses resulting from, arising out of or relating to breaches of representations and warranties contained in Sections 7.1 (Organization), 7.2 (Authorization), 7.3 (Capitalization) or 7.8 (No Brokers) (collectively, the “Parent Fundamental Representations”), and (B) none of such excess; and Losses shall count towards the satisfaction of the Threshold.
(bii) the Company's maximum liability under The aggregate amount of all payments made by Parent in satisfaction of claims for indemnification pursuant to Section 9.01 12.3(a)(i) shall not exceed $[Redacted - Commercially sensitive information] in the aggregateCap; provided that (A) no payments made by Parent with respect to Losses resulting from, arising out of or relating to breaches of any of the foregoing limitations Parent Fundamental Representations shall not apply count towards the Cap and (B) in no event shall the case aggregate amount of fraud all payments made by Parent in satisfaction of claims for indemnification pursuant to Section 12.3(a)(i) exceed the CompanyCap.
(4iii) Following the Closing, no Stockholder Indemnified Party shall have any right to seek contribution from the Surviving Company (or any Affiliate thereof) with respect to any indemnification claim of a Parent Indemnified Party against any Stockholder Indemnified Party hereunder.
(iv) Notwithstanding anything to the contrary in this Agreementherein, the Company Parent shall not be liable to the Stockholder Indemnified Parties for Losses under this Agreement in respect of:
(a) any Section 12.3 that constitute consequential, special, indirectpunitive or exemplary damages (in each case, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss except to the extent that constituting Third Party Claims) claimed by such Loss arises other party or parties, as a result of a failure by Glencore to comply with any the case may be, resulting from such first party’s breach of its obligations under this Agreement;
(d) any changes in Applicable Law representations, warranties or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardscovenants hereunder.
Appears in 1 contract
Sources: Merger Agreement (Rentech Inc /Co/)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim The aggregate Liability of Novartis for all Claims of Purchaser Indemnitees under Clause 15.1(a) (other than those based upon, resulting from, arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company relating to Clause 12.1(j)) shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee limited to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and[***]
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company Novartis shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series Claim of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (iiPurchaser Indemnitees under Clause 15.1(a) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only in respect of indemnification under Clause 15.1(a) (other than those based upon, resulting from, arising out of or relating to the extent Specified Representations) exceeds [***] (the “Seller Indemnification Threshold”), and only the Losses in excess of such excess; and (b) the Company's maximum liability under Section 9.01 Seller Indemnification Threshold shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Companybe recoverable hereunder.
(4c) Notwithstanding anything The aggregate Liability of Purchaser for all Claims of Seller Indemnitees under Clause 15.2(a) shall be limited to the contrary in this Agreement, the Company [***].
(d) Purchaser shall not be liable for any Claim of Seller Indemnitees under this Agreement in respect of:
(a) any consequentialClause 15.2(a), special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due the aggregate amount of all Losses in respect of indemnification under Clause 15.2(a) exceeds [***] (the “Purchaser Indemnification Threshold”), and payable;
(c) any Loss to only the extent that such Loss arises as a result Losses in excess of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; orthe Purchaser Indemnification Threshold shall be recoverable hereunder.
(e) In no event shall Purchaser or Novartis be liable in connection with this Agreement or the transactions contemplated hereby for any changes Losses that are punitive, incidental, consequential, special or indirect, including breaches of the confidentiality provisions in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.Clause 17. [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) No Indemnifying Party shall have any Claim arising out of any breach liability under Sections 9.2(a), 9.2(b), 9.3(a) or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance 9.3(a) (other than with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee respect to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any Losses resulting from breaches of the representations and warranties set forth in the Excluded Representations) unless the aggregate amount of Losses incurred by the indemnified parties thereunder exceeds Four Hundred Thousand Dollars ($400,000) (the “Deductible”) and, in such event, the indemnifying party or parties shall only be required to pay the amount of all such Losses in excess of the Company contained in this AgreementDeductible. In addition, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: all Losses (i) for any individual claim (or series of related claims) for Losses unless that an Acquiror Indemnified Party has the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; right to assert against the Shareholders and (ii) unless that a Shareholder Indemnified Party has the right to assert against the Acquiror and until the aggregate amount of all Losses exceeds Acquiror Sub under Sections 9.2(a), 9.2(b), 9.3(a) or 9.3(a), respectively (other than with respect to Excluded Representations), may not, in either case, exceed Seven Million Dollars ($[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b7,000,000) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) . Notwithstanding anything in this Article IX or elsewhere in this Agreement to the contrary in this Agreementcontrary, the Company no Shareholder shall not be liable have liability under this Agreement Article IX in respect of:
excess of the amount of Merger Consideration received by such Shareholder hereunder, and the Acquiror shall have no liability under this Article IX to any single Shareholder (aor his, her or its Affiliates) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;excess of the amount of the Merger Consideration received by such Shareholder.
(b) For all purposes of this Article IX, Losses shall be net of any Loss amounts actually recovered by the Claimant under any insurance policies in effect prior to or after the Closing in connection with the facts giving rise to the right of indemnification (net of any deductible amounts and any other costs or expenses incurred in connection therewith, including, without limitation, retrospective and prospective premium adjustments and experience-based premium adjustments directly attributable to a claim for which indemnification is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;provided under this Article IX).
(c) The Shareholders shall have no right of contribution or other recourse against the Company or its employees, directors, Affiliates, agents, attorneys, representatives, assigns or successors for any Loss to Indemnifiable Claims asserted by the extent Acquiror, Acquiror Sub their respective officers, directors, employees, agents and Affiliates, and the Shareholders further acknowledge and agree that the covenants and agreements of the Company are solely for the benefit of such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;parties.
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsAny amount paid under this Article IX shall be treated as an adjustment to the Merger Consideration.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply Except in the case of fraud by or with respect to breaches of the CompanyFundamental Representations or the representations and warranties set forth in Section 3.17 (Taxes), the maximum aggregate liability of the Seller Parties to all Purchaser Indemnified Parties taken together for all Losses pursuant to Section 8.02(a)(i), shall not exceed the Escrow Amount.
(4ii) For the avoidance of doubt, the calculation of the maximum aggregate liability of the Seller Parties to all Purchaser Indemnified Parties in calculating the limitations under Section 8.02(b)(i) shall be reduced by all Losses previously paid to any Purchaser Indemnified Party pursuant to Section 8.02(a)(i). Notwithstanding anything to the contrary in this Agreementherein, the Company Seller Parties shall not be obligated to indemnify the Purchaser Indemnified Parties against any Losses as a result of, based on or arising out of any claim or liability to the extent such claim or liability is taken into account in calculating the adjustments to the Purchase Price under Article II.
(iii) Except in the case of fraud or with respect to breaches of the Fundamental Representations or the representations and warranties set forth in Section 3.17 (Taxes) no indemnification shall be payable to any Purchaser Indemnified Party for any Loss, unless the aggregate amount of Losses for all claims shall exceed a cumulative aggregate of $250,000 (the “Basket”), whereupon all Losses aggregating in excess of the Basket shall be recoverable in accordance with the terms hereof.
(iv) No trustee or beneficiary of The ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Family Trust (2013) shall have any personal liability with respect to the obligations of such Seller and any recourse of a Purchaser Indemnified Party shall only be as to the assets of The ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Family Trust.
(v) For the avoidance of doubt, the Sellers and 644 shall have no right of contribution from FB or the Subsidiaries for any Losses related to indemnification claims pursuant to this Article VIII, and FB and the Subsidiaries shall not be liable under this Agreement in respect of:
(a) for any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsindemnification claims.
Appears in 1 contract
Limitations. (1a) Notwithstanding Subject to Section 10.13, from and after the Closing, the rights of the Indemnified Parties under this Article VI shall be the sole and exclusive remedies of the Indemnified Parties with respect to claims resulting from any other provision breach of warranty or failure to perform any covenant or agreement contained in this Agreement or any Related Agreement or otherwise relating to the transactions that are the subject of this Agreement:
(a) . Notwithstanding the foregoing or anything in this Agreement to the contrary, nothing contained in this Agreement shall relieve or limit the Liability of any Claim Party or any officer or director of such Party from any liability arising out of any breach or inaccuracy of any resulting from fraud or intentional or willful misconduct in connection with the Fundamental Company Representations transactions contemplated by this Agreement or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (Related Agreement, or in connection with the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy delivery of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 documents referred to herein or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreementtherein.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary contained in this Agreement, each of the Company following limitations shall not be liable under this Agreement in respect ofapply:
(ai) the aggregate liability of Seller for all Damages (y) under Section 6.02(a)(i) (other than in respect of fraud or intentional or willful misconduct by Seller or in respect of any consequentialFundamental Representation of Seller) shall not exceed an amount equal to the Escrow Amount (the “Cap”); and (z) other than in respect of fraud or intentional or willful misconduct by Seller, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claimunder Section 6.02(a) shall not exceed an amount equal to the sum of the Base Purchase Price and any Contingent Payment paid pursuant to Section 1.02(b);
(bii) a Buyer Indemnified Party shall have no right to indemnification under Section 6.02(a)(i) (other than in respect of fraud or intentional or willful misconduct by Seller or in respect of any Loss Fundamental Representation of Seller, in each case, as to which is contingent the limitation shall not apply) unless and until the amount of Damages suffered by such contingent Loss becomes Buyer Indemnified Party with respect to an actual Loss individual claim under such sections exceeds $50,000 (it being stated for the avoidance of doubt that is due Damages arising from any potential indemnification claims that arise out of or involve or relate to similar facts or are based on related or similar occurrences, events or circumstances will be aggregated and payabletreated as an individual claim for this purpose) and the aggregate amount of Damages suffered by such Buyer Indemnified Party under such section exceeds $1,600,000 (the “Aggregate Threshold”), whereupon the Buyer Indemnified Parties shall be indemnified for all Damages (including Damages up to the Aggregate Threshold), subject to the limitations contained in Section 6.05(b)(i);
(iii) the aggregate liability of Buyer for all Damages (y) under Section 6.03(a)(i) (other than on account of fraud or intentional or willful misconduct by Buyer or in respect of any Fundamental Representation of Buyer) shall not exceed an amount equal to the Cap; and (z) other than on account of fraud or willful misconduct by Buyer, under Section 6.03(a) shall not exceed an amount equal to the sum of the Base Purchase Price and any Contingent Payment paid pursuant to Section 1.02(b); and
(iv) a Seller Indemnified Party shall have no right to indemnification under Section 6.03(a)(i) (other than on account fraud or intentional or willful misconduct by Buyer or in respect of any Fundamental Representation of Buyer, in each case, as to which the limitation shall not apply) unless and until the amount of Damages suffered by such Seller Indemnified Party with respect to an individual claim under such sections exceeds $50,000 (it being stated for the avoidance of doubt that Damages arising from any potential indemnification claims that arise out of or involve or relate to similar facts or are based on related or similar occurrences, events or circumstances will be aggregated and treated as an individual claim for this purpose) and the aggregate amount of Damages suffered by such Americas 92425100 Seller Indemnified Party under such sections exceeds the Aggregate Threshold, whereupon the Seller Indemnified Parties shall be indemnified for all Damages (including Damages up to the Aggregate Threshold), subject to the limitations contained in Section 6.05(b)(iii).
(c) In no event shall any Loss Indemnifying Party be responsible and liable under this Article VI for special or punitive Damages, except to the extent that any of the foregoing are awarded to a Third Party against any Indemnified Party in circumstances in which such Loss arises as Indemnified Party is entitled to indemnification hereunder. In no event shall any Indemnifying Party be responsible and liable under this Article VI for indirect, consequential or incidental Damages except to the extent that (i) such Damages are awarded to a Third Party against any Indemnified Party in circumstances in which such Indemnified Party is entitled to indemnification hereunder, or (ii) such Damages are a reasonably foreseeable result of a failure by Glencore to comply with any of its obligations under this Agreement;the event that gave rise thereto or the matter for which indemnification is sought hereunder.
(d) The amount of any changes Damages for which indemnification is provided under this Article VI shall be computed net of any Third Party insurance proceeds actually received by the Indemnified Party (net of any retroactive premium adjustments and any other costs of collection), each Party agreeing (i) to use commercially reasonable efforts to recover all available insurance proceeds and (ii) to the extent any indemnity payment under this Agreement has been paid by the Indemnifying Party to or on behalf of the Indemnified Party prior to the receipt, directly or indirectly by the Indemnified Party of any net insurance proceeds under Third Party insurance policies on account of such Damages which duplicate, in Applicable Law whole or changes in generally accepted interpretation part, the payment by the Indemnifying Party to or application on behalf of Applicable Law; or
(e) any changes the Indemnified Party, the Indemnified Party shall remit to the Indemnifying Party an amount equal to the amount of the net insurance proceeds actually received by the Indemnified Party on account of such Damages which duplicate, in Applicable Accounting Standards whole or generally accepted interpretation in part, the payment made by the Indemnifying Party to or application on behalf of Applicable Accounting Standardsthe Indemnified Party. No Party shall be entitled to recover more than once for the same Damages.
Appears in 1 contract
Sources: Asset Purchase Agreement (Vertex Pharmaceuticals Inc / Ma)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any Except as otherwise set forth herein, (i) the Fundamental Company Representations or any breach of any covenant aggregate Liability of the Company Indemnifying Securityholders for Damages under this Article VI shall not exceed the Escrow Fund and (ii) no Indemnified Party shall be wholly barred entitled to indemnification pursuant to this Article VI unless and unenforceable unless until all Damages hereunder exceed One Hundred Thousand Dollars ($100,000) (the “Threshold Amount”) whereupon the Indemnified Parties shall be entitled to be indemnified only for such Damages in excess of the Threshold Amount; provided (A) that the limitations set forth in this Section 6.4 shall not apply to any claim pursuant to Section 6.2(a) relating to a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or breach of, inaccuracy in the case representations and warranties set forth in Section 2.1 (Organization, Qualification and Corporate Power), Section 2.2 (Capitalization), Section 2.3 (Authorization of Transaction), Section 2.21(d) (Employees), Section 2.29 (Broker’s Fees) claims pursuant to Section 6.2(c), Section 6.2(d), Section 6.2(e), Section 6.2(f) and claims for intentional misrepresentation, willful misconduct or fraud (collectively, the covenants of the Company, such shorter period expressly specified therein“Excepted Matters”); and.
(b) any Claim arising out Solely for purposes of any determining the amount of Damages pursuant to this Article VI (but not for purposes of determining whether a breach or inaccuracy of any of the has occurred), all representations and warranties of the Company contained set forth in this Agreement, other than the Fundamental Company Representations, Article II shall be wholly barred construed as if the terms “material” or “in all material respects” and unenforceable unless a written notice any reference to “Company Material Adverse Effect” (and variations thereof) were omitted.
(c) Any payments required to be made to an Indemnified Party pursuant to claims for indemnification hereunder with respect to Excepted Matters shall be made first by resort to the Escrow Fund, and second, if the balance of claim the Escrow Fund is insufficient to satisfy the entire amount of payments to be made to an Indemnified Party in respect of such Excepted Matters, by seeking recourse to each Indemnifying Securityholder, severally and not jointly in accordance with Section 9.03 or Section 9.04 is delivered each such Indemnifying Securityholder’s Pro Rata Portion.
(d) All Damages recovered by the Glencore Indemnitee Indemnified Parties from the Escrow Fund shall be allocated among the Indemnifying Securityholders in accordance with their Pro Rata Portion. Notwithstanding anything to the Company within 12 months contrary herein, except for claims for intentional misrepresentation, willful misconduct or fraud, no Indemnifying Securityholder shall be liable for more than the aggregate amount of Merger Consideration to be paid to such Indemnifying Securityholder (assuming the date full amount of Merger Consideration (including all amounts held in the Escrow Fund) is actually paid to such Indemnifying Securityholder) pursuant to this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4e) Notwithstanding anything to the contrary herein, the aggregate Liability of Buyer for Damages hereunder shall not exceed the Merger Consideration.
(f) Except with respect to claims for intentional misrepresentation, willful misconduct or fraud, after the Closing, the rights of the Indemnified Parties under this Article VI and the Escrow Agreement shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any breach of, inaccuracy in, nonperformance or noncompliance with such representation, warranty, certification, covenant, agreement or other obligation contained in this Agreement; provided, however nothing herein shall be construed to limit the remedies available to, or the amount of Damages recoverable by, Buyer for breach of any of the Ancillary Agreements by any of the parties thereto other than the Company.
(g) The amount of any Damages payable by the Indemnifying Securityholders pursuant to this Article VI shall be reduced by the amount of any insurance proceeds actually received by the Indemnified Party with respect to the Damages (net of any insurance premium increases or other costs incurred by the Indemnified Party in respect of such insurance proceeds); provided that nothing set forth in this Section 6.4(g) shall require the Indemnified Party to make an insurance claim with respect to such Damages.
(h) No Indemnifying Securityholder shall have any right of contribution against the Company shall not be liable under this Agreement in or the Surviving Corporation with respect of:to any breach by the Company of any of its representations, warranties, covenants or agreements.
(ai) No Indemnified Party shall be entitled to be indemnified for special, punitive or exemplary Damages (collectively, “Special Damages”) unless such Indemnified Party is required to pay Special Damages to a third party in which case such Special Damages shall constitute Damages for which such Indemnified Party is entitled to indemnification pursuant to this Article VI. No party hereto shall be obligated to indemnify any other Person with respect to (i) any consequentialrepresentation, specialwarranty, indirectcovenant, multiple-of-profit agreement or punitive damages condition specifically waived in writing by the other party at the Closing or Losses in connection with a Direct Claim;
(bii) any Loss which is contingent unless and until Damages if such contingent Loss becomes an actual Loss that is due and payable;
Damages were included in the calculation of the Merger Consideration pursuant to Section 1.5 or in the calculation of the Estimated Adjusted Working Capital or the Final Adjusted Working Capital pursuant to Section 1.6 (c) any Loss in each case, to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsso included).
Appears in 1 contract
Sources: Merger Agreement (Red Hat Inc)
Limitations. (1A) Notwithstanding With respect to any other provision claim for the inaccuracy of any representation or breach of any warranty contained in this Agreement:Agreement (except as provided in Section 5.3(f) (B) and subject to Section 5.3(f)(C) below), the Companies shall not have any obligation to indemnify any Covered Person from and against any Loss with respect to such claims (A) until the Covered Persons have collectively suffered aggregate Losses (excluding each Single Loss less than $50,000) with respect to such claims in excess of $1,500,000 (the "Basket") and (B) to the extent amounts paid by Republic, RSC and Seller to Buyer Covered Persons exceeds the Purchase Price (the "Cap"); it being understood that each of the Basket and the Cap shall be applied on an aggregate basis (i.e. not on a per claim basis). When the Buyer Covered Persons have collectively suffered aggregate Losses with respect to such claims in excess of the Basket, Republic, RSC and Seller shall have the obligation to indemnify each Buyer Covered Person for the full amount of all Losses suffered by the Buyer Covered Persons, dollar for dollar from the first dollar of Loss suffered, until the Cap is reached.
(aB) In the event of fraud, or with respect to a claim arising under Section 3.1(a) ("Authorization of Transaction"), Section 3.1(e) ("Broker's Fee") or Section 3.1(u) ("Qualified RMR"), the Companies' obligations to indemnify the Covered Persons for Losses shall not be limited by the Basket and in the event of fraud or a claim arising under Section 3.1(a) ("Authorization of Transaction") the Companies' obligations to indemnify the Covered Persons for Losses shall not be limited by the Cap.
(C) None of Republic, RSC or Seller shall be obligated to indemnify the Buyer Covered Persons for any Claim arising single Loss covered by Section 5.3(a) (consolidating into any single Loss any series of related events, facts or circumstances giving rise to Liability on the same or a substantially related legal and factual basis (after giving effect to such consolidation, a "Single Loss")) that arises out of any a breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained set forth in this Agreement, Sections 3.1 (other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: Section 3.1 (a) ("Authorization of Transactions"), Section 3.1(e) ("Brokers' Fees") or Section 3.1(u) ("Qualified RMR")) unless such Single Loss exceeds $50,000, in which case Seller shall be obligated to indemnify the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of Covered Persons for the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the full amount of Losses in respect of such claim Single Loss (or series of related claimsincluding the portion below $50,000) exceeds $[Redacted - Commercially sensitive information]; subject to the Basket and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only Cap to the extent of such excess; and (b) the Company's maximum liability they apply under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company5.3(f).
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.
Appears in 1 contract
Limitations. (1a) Notwithstanding any other provision of this Agreementanything to the contrary herein:
(ai) the Escrow Agreement shall be the exclusive means for the Buyer to collect any Claim arising out Damages for which it is entitled to indemnification under this Article VI, and the aggregate liability of any breach the Indemnifying Stockholders for Damages under this Article VI shall be limited to the Escrow Shares;
(ii) the aggregate liability of the Buyer for Damages under this Article VI shall be limited to the Value of the Escrow Shares, as determined pursuant to Section 6.3(c);
(iii) the Indemnifying Stockholders and the Buyer shall be liable under this Article VI for only that portion of the aggregate Damages for which they or inaccuracy of any it would otherwise be liable which exceeds $150,000; provided that the Fundamental Company Representations or any limitation set forth in this clause (iii) shall not apply to (A) a claim pursuant to Section 6.1(a) relating to a breach of any covenant the representations and warranties set forth in Sections 2.2 or 2.3 (or the portion of the Company shall be wholly barred Certificate relating thereto) or to a breach of the covenant set forth in Section 4.9 or (B) a claim pursuant to Section 6.2 relating to a breach of the representations and unenforceable unless a written notice of claim warranties set forth in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law 3.3 (or in the case portion of the covenants Buyer Certificate relating thereto) or to a breach of the Company, such shorter period expressly specified therein); andcovenant set forth in Section 4.11.
(b) any Claim arising out For purposes solely of any breach or inaccuracy of any of the this Article VI, all representations and warranties of the Company in Article II (other than Section 2.28) and all representations and warranties of the Buyer and the Transitory Subsidiary in Article III (other than Section 3.11) shall be construed as if the term "material" and any reference to "Company Material Adverse Effect" and "Buyer Material Adverse Effect" (and variations thereof) were omitted from such representations and warranties.
(c) Except with respect to claims based on fraud, after the Closing, the rights of the Indemnified Parties under this Article VI and the Escrow Agreement shall be the exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any misrepresentation, breach of warranty or failure to perform any covenant or agreement contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2d) Notwithstanding Section 9.02(1), No Indemnifying Stockholder shall have any Claim arising out right of contribution against the Company or the Surviving Corporation with respect to any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law representations, warranties, covenants or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsagreements.
Appears in 1 contract
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) Notwithstanding anything contained in this Agreement to the contrary, the maximum aggregate amount of indemnifiable Losses that may be recovered by the Buyer Indemnitees from the Sellers with respect to indemnification claims made pursuant to Section 7.2(a)(i) (other than in respect of Seller Fundamental Representations) or pursuant to Section 7.2(b)(i) (other than in respect of Company Fundamental Representations) shall be the Indemnity Escrow Amount (the “Cap”), which Losses shall be satisfied solely from the Indemnity Escrow Fund. For the avoidance of doubt, the Buyer Indemnitees’ sole recovery for any Claim arising out Losses in excess of any the Cap which arise as a result of an indemnification claim pursuant to Section 7.2(a)(i) for a breach of or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Sellers contained in Article 3 which are not Seller Fundamental Representations or which arise as a result of an indemnification claim pursuant to Section 7.2(b)(i) for a breach of or inaccuracy in any of the representations and warranties of the Companies contained in Article 4 which are not Company Fundamental Representations shall be satisfied through the R&W Insurance Policy.
(b) Notwithstanding anything contained in this AgreementAgreement to the contrary, other than with respect to indemnifiable Losses that may be recovered by the Buyer Indemnitees pursuant to Section 7.2(b)(i) based on a breach of any Company Fundamental Company RepresentationsRepresentation, subject to the provisions of this Article 7, the Sellers shall, on a joint and several basis, be obligated to indemnify the Buyer Indemnitees from and against the full amount of such Losses; provided that 738336390
(i) any such Losses shall be wholly barred satisfied first from the then-remaining Indemnity Escrow Fund and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by (ii) after the Glencore Indemnitee Indemnity Escrow Amount has been exhausted, the Sellers shall be liable to the Company within 12 months of Buyer Indemnitees (on a joint and several basis) with respect to the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation such Company Fundamental Representation, for the amount of any Losses arising from the breach of the applicable Company Fundamental Representation that have not been covered by the R&W Insurance Policy solely after payments made under the terms of the R&W Insurance Policy (including defense costs, if any) equal the Policy Limit. Notwithstanding anything to the contrary contained in the preceding provisions of this Section 7.3(b), the maximum amount that may be recovered by the Buyer Indemnitees from any Seller pursuant to this Article 7, including, the amount, if any, recovered by the Buyer Indemnitees from any such Seller pursuant to the provisions of Section 7.3(c) and Section 7.9, shall not exceed the portion of the Purchase Price actually received by such Seller hereunder.
(c) Notwithstanding anything contained in this Agreement to the contrary, with respect to indemnifiable Losses that may be recovered by the Buyer Indemnitees pursuant to Section 7.2(a)(i) based on a breach of any Seller Fundamental Representation, subject to the provisions of this Article 7, the Seller with respect to whom such Seller Fundamental Representation has been breached shall be obligated to indemnify the Buyer Indemnitees from and against the full amount of such Losses; provided that (i) any such Losses shall be satisfied first from the then-remaining Indemnity Escrow Fund and (ii) after the Indemnity Escrow Amount has been exhausted, such Seller shall be liable to the Buyer Indemnitees with respect to the breach or warranty inaccuracy of any such Seller Fundamental Representation, for the amount of any Losses arising from the breach of the applicable Seller Fundamental Representation that have not been covered by the R&W Insurance Policy solely after payments made under the terms of the R&W Insurance Policy (including defense costs, if any) equal the Policy Limit. Notwithstanding anything to the contrary contained in the preceding provisions of this Section 7.3(c), the maximum amount that may be recovered by the Buyer Indemnitees from any Seller pursuant to this Article 7, including, the amount, if any, recovered by the Buyer Indemnitees from any such Seller pursuant to the provisions of Section 7.3(b) and Section 7.9, shall not exceed the portion of the Purchase Price actually received by such Seller hereunder.
(d) Notwithstanding anything contained in this Agreement to the contrary, any indemnifiable Losses that may be recovered by the Buyer Indemnitees pursuant to Section 7.2(b)(iii) shall be recovered (i) first, from the Sellers (on a joint and several basis) until the amount of the then-applicable retention under the R&W Insurance Policy has been satisfied, (ii) second, to the extent that such Losses are recoverable pursuant to the terms of the R&W Insurance Policy, from the R&W Insurance Policy until the Policy Limit has been exceeded and (iii) third, from Sellers (on a joint and several basis).
(e) Notwithstanding anything contained in this Agreement to the contrary, any indemnifiable Losses that may be recovered by the Buyer Indemnitees pursuant to Section 7.2(b)(iv) shall be recovered (i) first, from the then-remaining Indemnity Escrow Fund, (ii) second, from the Sellers (on a joint and several basis) until the amount of the then-applicable retention under the R&W Insurance Policy has been satisfied, (iii) third, to the extent that such Losses are recoverable pursuant to the terms of the R&W Insurance Policy, from the R&W 738336390 Insurance Policy until the Policy Limit has been exceeded and (iv) fourth, from Sellers (on a joint and several basis).
(f) Notwithstanding anything contained in this Agreement to the contrary, any indemnifiable Losses that may be recovered by the Buyer Indemnitees pursuant to Section 7.2(b)(v) shall be recovered (i) first, from the then-remaining Indemnity Escrow Fund and (ii) second, from the Sellers (on a joint and several basis).
(g) Notwithstanding anything contained in this Agreement to the contrary, the maximum aggregate amount of indemnifiable Losses that may be recovered by the Buyer Indemnitees from Sellers pursuant to this Article 7 shall not exceed an amount equal to the Purchase Price, and the maximum aggregate amount of indemnifiable Losses that may be recovered by the Buyer Indemnitees from each Seller pursuant to this Article 7 shall not exceed the portion of the Purchase Price actually received by such Seller hereunder.
(h) No Buyer Indemnitee shall be entitled (i) to recover from Sellers more than once in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on the same Losses or prior to the latest date permitted by Applicable Law.
(3ii) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation Loss or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only alleged Loss to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] Loss or alleged Loss is included in the aggregate; provided that determination of the foregoing limitations shall not apply Final Purchase Price pursuant to and in the case of fraud by the Companyaccordance with Section 2.4.
(4i) Notwithstanding anything to the contrary in this AgreementSections 7.3(a), the Company 7.3(b), 7.3(c) or 7.3(e), (i) except for claims for indemnification arising with respect to any breach or inaccuracy of any Fundamental Representations, Sellers shall not be liable under this Agreement to any Buyer Indemnitee for any individual claim for indemnification pursuant to Section 7.2(a)(i), Section 7.2(b)(i) or Section 7.2(b)(iv), as applicable, unless the Loss incurred in respect of:
of such claim exceeds $15,000 and (aii) the limitations contained in Section 7.3(a), Section 7.3(b), Section 7.3(c) and clause (i) of this Section 7.3(i) shall not apply to any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to claim of the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsBuyer Indemnitees for Fraud.
Appears in 1 contract
Sources: Equity Purchase Agreement (Gibraltar Industries, Inc.)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee anything to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained contrary in this Agreement, other than the Fundamental Company Representations, shall Agreement (A) no Purchaser Indemnitee will be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee entitled to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) indemnification for any individual Losses arising from a claim (or series of related claimsfor indemnification pursuant to Section 8.2(a)(i) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and above until the aggregate amount of all Losses under all claims of all Purchaser Indemnitees for all such breaches or inaccuracies exceeds $[Redacted - Commercially sensitive information] and then only to 2,600,000 (the extent “Basket”), at which time the full amount of such Losses (and not just the excess; ) will be subject to indemnification hereunder (subject to clause (B) and (bC) below); (B) there will be no obligation to indemnify under Section 8.2(a)(i) for any item or related set of items where the Losses relating thereto are less than $26,000 (the “De Minimis Amount”) (it being understood that such items will not be aggregated for purposes of the immediately preceding clause (A)) and (C) the Company's maximum liability under aggregate Liability of Seller Group and Seller Parent for indemnification pursuant to subsection Section 9.01 shall 8.2(a)(i) above will not exceed $[Redacted - Commercially sensitive information] 26,000,000 (the “Cap”); provided, however, that, notwithstanding the foregoing, (x) none of the Cap, the Basket or the De Minimis Amount will apply with respect to any claim for indemnification based on Fraud, any breach or inaccuracy of a Fundamental Representation or any breach or inaccuracy of a representation or warranty of Seller Group contained in Section 2.10 (Taxes) or Section 2.14 (Sufficiency), and (y) neither the Cap nor the Basket will apply with respect to any claim for indemnification based on any breach or inaccuracy of the representations and warranties of Seller Group set forth in the aggregate; provided first sentence of Section 2.9(b) (Ownership of Intellectual Property) or the first sentence of Section 2.13 (Title to Tangible Assets). Each indemnification payment to a Purchaser Indemnitee pursuant to Section 8.2(a)(i) that is subject to the foregoing limitations shall not apply Cap set forth in this Section 8.2(c) will reduce the Cap and the liability cap set forth in the following sentence on a dollar-for-dollar basis by the aggregate amount of such payment. Except in the case of fraud by the Company.
Fraud and indemnification in respect of Sections 8.2(a)(iii), (4iv) Notwithstanding anything to the contrary in this Agreementand (v), the Company shall not be liable aggregate Liability of Seller Group and Seller Parent under this Agreement will in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to no event exceed the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsPurchase Price.
Appears in 1 contract
Sources: Asset Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Limitations. (1) Notwithstanding any other provision of this Agreement:tc "7.4 Limitations" \l 2
(a) any Claim arising out Subject to Sections 7.4(b) and 7.4(c), and notwithstanding anything to the contrary contained in this Agreement other than Sections 7.4(b) and 7.4(c), a party (for purposes of any breach this Section 7.4, the Shareholders shall be deemed to be one and the same party) otherwise entitled to indemnification under this Article VII is not entitled to indemnification until the aggregate indemnifiable Losses for which it is otherwise entitled to indemnification hereunder shall equal or inaccuracy exceed U.S. $100,000 (the "Threshold Amount"). If and when the sum of any all indemnifiable Losses of a party hereunder equals or exceeds the Fundamental Company Representations or any breach of any covenant Threshold Amount, then such party may request indemnification for all indemnifiable Losses in excess of the Company shall Threshold Amount. To the extent covered by insurance, any indemnifiable Loss will be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered deemed reduced by the Glencore Indemnitee amount of insurance proceeds actually received by the Indemnified Party and its Affiliates in respect of such Loss; provided, however, that in no event shall this sentence be deemed to require any Indemnified Party to maintain any level of insurance. Subject to Sections 7.4(b) and 7.4(c), in no event shall the Company on or prior to Shareholders' collective Liability under this Article VII exceed the latest date permitted by applicable law (or Purchase Price in the case of aggregate (the covenants of "Maximum Liability"). Except as set forth in Sections 7.4(b) and 7.4(c), all rights and remedies under this Article VII for Indemnified Parties, including all rights to indemnification, and all Liabilities and obligations under this Article VII for Indemnifying Parties, terminate on September 30, 2000 (the Company, such shorter period expressly specified therein"Time Limit"); and.
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
Exempt Claims (2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only solely to the extent of such excess; and (bclaims) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable subject to the Threshold Amount or (with respect to claims against the Shareholders) the Maximum Liability limitations set forth in Section 7.4(a) above. In addition, no Exempt Claim shall not be subject to the Time Limit; provided, however, all rights and remedies under this Agreement in Article VII for Indemnified Parties, including all rights to indemnification, and all Liabilities and obligations under this Article VII for Indemnifying Parties, for an Exempt Claim shall terminate as of the expiration of all applicable statute of limitations (including any extension or waiver with respect of:
(athereto) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss for the underlying Liability to which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;Exempt Claim relates.
(c) any Loss to The term "Exempt Claims" shall mean (i) claims by the extent that such Loss arises Purchaser or the Shareholders (as a result of a failure by Glencore to comply with any of its obligations appropriate) under this Agreement;
Article VII for breaches, or failures of performance, of the terms of Article I, Section 2.1, Section 2.23, Section 3.3, Section 4.3, Section 4.5 and Section 4.6, and (dii) any changes claims by the Purchaser for indemnification under this Article VII in Applicable Law connection with the Identified Litigation or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsImpact Option Liability.
Appears in 1 contract
Sources: Stock Purchase Agreement (Complete Business Solutions Inc)
Limitations. (1a) Notwithstanding any other provision of this Agreement:
Agreement to the contrary, no party shall have any obligation to indemnify any person entitled to indemnity under this Article 5 or to pay damages in respect of contract or other claims arising under this Agreement or any other Transaction Document unless the persons so entitled to indemnity or recovery thereunder have suffered Losses in an aggregate amount attributable to all Indemnification Claims and obligations in excess of Fifty Thousand Dollars (a$50,000) any Claim arising out (the “Threshold”). Once the aggregate amount of Losses (that are individually below the Threshold) exceeds the Threshold, persons entitled to recovery shall be entitled to recover the full amount of all such Losses, regardless of the Threshold. No person shall be entitled to indemnification under this Article 5 for Losses directly or indirectly caused by a breach by such person of any breach representation, warranty, covenant or inaccuracy of any the Fundamental Company Representations other agreement set forth in this Agreement or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee duty to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); andpotential Indemnitor.
(b) any Claim arising out of any breach or inaccuracy of any The maximum aggregate liability of the representations Seller to Buyer, and warranties Buyer to the Seller, for all claims arising under this Agreement and the other Transaction Documents shall equal One Million Five Hundred Thousand Dollars ($1,500,000) (the “Indemnity Cap”), provided, however, that there shall be no limitation in the event that a court of competent jurisdiction determines that there has been any act of fraud and/or intentional misrepresentation or omission by the Company Seller and/or the Subsidiary in any representation, warranty or covenant contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is Schedules attached hereto and/or any certificate delivered by the Glencore Indemnitee Seller and/or the Subsidiary pursuant to the Company within 12 months of the date of this Agreement.
(2c) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior The rights to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company indemnification set forth in this Agreement: (i) Agreement shall be the sole and exclusive remedy to each party for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of matters covered by such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Companyindemnification rights.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Viisage Technology Inc)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out In determining the amount of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company indemnity, there shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 taken into account any tax benefit, insurance proceeds or Section 9.04 is delivered other similar recovery or offset realized, directly or indirectly, by the Glencore Indemnitee party to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); andbe indemnified.
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary herein and except as set forth in this AgreementSection 11.7(d), the Company shall each Stockholder shall, severally and not jointly, be liable under this Agreement in for Damages and the liability with respect of:
(a) to any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) claim for Damages from any Loss Stockholder shall be limited to such Stockholder's pro rata portion of such Damages which is contingent unless and until equal to the Damages multiplied by such contingent Loss becomes an actual Loss that is due and payable;Stockholder's proportion equity interest in the Corporation immediately prior to the Closing as set forth in Annex III hereto.
(c) StaffMark and SAC each acknowledges and agrees that it shall have no right pursuant to this Section 11 with respect to any Loss breach or failure by a Stockholder to the extent fully perform his or her obligations under such Stockholder's respective noncompetition agreement, employment agreement, and/or similar agreement, as applicable, and that such Loss arises any cause of action arising as a result of such breach or failure to perform shall be asserted only in a failure separate action by Glencore to comply with any StaffMark and SAC that is independent of its obligations under this Agreement;Section 11.
(d) Perr▇ ▇▇▇▇▇▇, ▇▇dividually, shall be liable for any changes breaches of the representations and warranties made by the Perr▇ ▇▇▇▇▇▇ ▇▇▇ under Section 4.1 and Section 5.12. Caro▇▇▇ ▇▇▇▇▇▇, ▇▇dividually, shall be liable for any breaches of the representations and warranties made by the Caro▇▇▇ ▇▇▇▇▇▇ ▇▇▇ under Section 4.1 and Section 5.12. In addition, in Applicable Law the event that StaffMark and SAC are unable to collect Damages from either the Perr▇ ▇▇▇▇▇▇ ▇▇▇ or changes in generally accepted interpretation or application the Caro▇▇▇ ▇▇▇▇▇▇ ▇▇▇ pursuant to Section 11.7(b), then Perr▇ ▇▇▇▇▇▇ ▇▇▇ Caro▇▇▇ ▇▇▇▇▇▇ ▇▇▇ll jointly and severally be liable for the Perr▇ ▇▇▇▇▇▇ ▇▇▇ and/or Caro▇▇▇ ▇▇▇▇▇▇ ▇▇▇'s proportionate share of Applicable Law; orthe Damages, to the extent of the consideration received by Perr▇ ▇▇▇▇▇▇ ▇▇▇ Caro▇▇▇ ▇▇▇▇▇▇, ▇▇dividually, under this Agreement.
(e) In no event shall the liability for Damages of any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsStockholder exceed the consideration received by such Stockholder pursuant to this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Staffmark Inc)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out No amounts of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company indemnity shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused payable as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) arising under Section 7.2 unless and until Losses claimed thereunder, when aggregated, are in excess of $90,000.00 (the “Deductible”), in which case the GMRE Indemnified Parties may recover the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to in excess of the extent of such excessDeductible; and (b) provided, that the Company's maximum liability aggregate indemnity payments by all Sellers under Section 9.01 7.2 shall not exceed $[Redacted - Commercially sensitive information] in fifteen percent (15%) of the aggregate; provided total amount of the Consideration payable by GMRE to the Sellers hereunder (the “Indemnity Amount”), and provided, further, that the foregoing limitations aggregate indemnity payments by Zensun or ▇▇▇▇▇ under Section 7.2(a) shall not apply in exceed the case portion of fraud the Consideration actually received by Zensun or ▇▇▇▇▇, as applicable. Notwithstanding the Company.
(4) Notwithstanding anything to preceding provisions of this Section 7.4(a), none of the contrary limitations set forth in this AgreementSection 7.4(a) shall be applicable with respect to any fraud or intentional misrepresentation by a Seller, or with respect to any inaccuracy in or breach of any of the Company shall not be liable Seller Fundamental Representations or with respect to any indemnification claim by any GMRE Indemnified Party under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;Section 7.2(b)(iv).
(b) The Sellers shall, at their sole option, determine within two (2) Business Days after final determination of the amount of Losses due whether to satisfy any Loss indemnification amounts payable by the Sellers as a result of claims arising under Section 7.2 in cash or through the release of Escrowed Shares to the GMRE Indemnified Party and will notify the applicable GMRE Indemnified Party of its determination in writing within 24 hours of making such determination. The value of any such Escrowed Shares shall be determined with reference to the volume-weighted average of the sale prices per share of GMRE Common Stock as reported on the NYSE composite transactions reporting system (or such other national securities exchange or automated quotation service on which GMRE is contingent unless then listed) for each trading day during the thirty (30) consecutive trading days immediately preceding the date of final determination of the amount of such Losses due. ▇▇▇▇▇ shall be solely responsible, and shall not have any right to be reimbursed by GMRE, for the amount of any tax liability incurred by him resulting from any transfer of LTIP Units from the Escrow Account to any GMRE Indemnified Party or the cancellation or redemption thereof by any GMRE Indemnified Party, and any transfer of LTIP Units from the Escrow Account to any GMRE Indemnified Party shall not be subject to any adjustment or offset for taxes or any other purpose. GMRE shall record the release and transfer of such Escrowed Shares to the applicable GMRE Indemnified Party on the books of GMRE. ▇▇▇▇▇, as the Seller’s Representative, shall take all steps necessary to instruct the Escrow Agent to release the Escrowed Shares from the Escrow Account in accordance with the requirements of this Agreement. The Escrow Agreement shall have a term of eighteen (18) months and any Escrowed Shares remaining in the Escrow Account at the end of such term shall be released to the Sellers by the Escrow Agent in accordance with their Percentage Ownership Interests in the Shares; provided; however, that an amount equal to the lesser of (x) the amount of any outstanding indemnification claim by any GMRE Indemnified Party that has been asserted but not fully and finally resolved as of the expiration of the term of the Escrow Agreement and (y) the value of Escrowed Shares then remaining in the Escrow Account, shall be reserved and continue to be held in the Escrow Account, and the term of the Escrow Agreement shall be extended, until such contingent Loss becomes an actual Loss that is due outstanding indemnification claim has been fully and payable;finally resolved. Notwithstanding the foregoing, no payment, disbursal or release of any portion of the Escrowed Shares held in the Escrow Account shall in any way limit the rights of the GMRE Indemnified Parties to indemnification with respect to any other or excess claim for indemnification by any such party hereunder.
(c) any Loss to the extent that such Loss arises No amounts of indemnity shall be payable as a result of a failure by Glencore to comply with any claim arising under, based upon or relating to:
(i) Section 7.3 unless and until Losses claimed thereunder, when aggregated, are in excess of its obligations under this Agreementthe Deductible, in which case the Seller Indemnified Parties may recover the aggregate amount of all Losses in excess of the Deductible;
(dii) Section 7.3 in excess of the Indemnity Amount (aggregating all indemnity payments by GMRE under Section 7.3). provided, that none of the limitations set forth in this Section 7.4(c) shall be applicable with respect to fraud or intentional misrepresentation by GMRE or any changes inaccuracy in Applicable Law or changes in generally accepted interpretation breach of any of the GMRE Fundamental Representations or application of Applicable Law; or
(e) with respect to any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standardsindemnification claim by any Seller Indemnified Party under Section 7.3(c).
Appears in 1 contract
Sources: Stock Purchase Agreement (Global Medical REIT Inc.)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee Notwithstanding anything to the Company on contrary contained herein, no Buyer Indemnified Party or prior to the latest date permitted by applicable law (or in the case of the covenants of the CompanySeller Indemnified Party, such shorter period expressly specified therein); and
(b) any Claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representationsas applicable, shall be wholly barred entitled to be indemnified pursuant to Section 6.1(a)(i) and unenforceable unless a written notice of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee to the Company within 12 months of the date of this Agreement.6.2(a)(i):
(2) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee in respect of any breach of any representation or warranty of the Company in this Agreement: (i) for any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses for which the Buyer Indemnified Parties or the Seller Indemnified Parties, as applicable, would, but for this paragraph (i), be entitled to indemnification hereunder exceeds on a cumulative basis $[***] (the “Indemnity Threshold”), at which point each Buyer Indemnified Party or Seller Indemnified Party, as applicable, shall be entitled to be indemnified for the aggregate of all Losses in excess of the Indemnity Threshold; and
(ii) unless the amount of an individual claim for Losses under Section 6.1(a)(i) or Section 6.2(a)(i) (aggregating all claims and Losses arising from substantially the same or similar facts as applicable to each of Section 6.1(a)(i) or Section 6.2(a)(i), as applicable) exceeds $[Redacted - Commercially sensitive information] ***], and then only to no such claim shall be applied toward the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct ClaimIndemnity Threshold;
(b) provided, however, that the foregoing provisions of Section 6.3(a) shall not apply with respect to any Loss which is contingent unless act of fraud or any breach of or inaccuracy in the representations and until such contingent Loss becomes an actual Loss that is due and payable;warranties set forth in Sections 3.1, 3.2(a), or 3.13 (the “Specified Representations”).
(c) Other than in the case of any Loss act of fraud (in which case the Buyer Indemnified Parties’ and the Seller Indemnified Parties’ rights shall not be limited by anything set forth in this Article VI to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations contrary), in no event shall the aggregate amount for which Buyer Indemnified Parties or Seller Indemnified Parties shall be indemnified and held harmless under this Agreement;Article VI exceed $[***] (the “Cap”).
(d) The amount of any changes in Applicable Law Losses payable pursuant to this Article VI shall be reduced to reflect any amount actually recovered by the Indemnified Party from a Third Party, including any insurance provider (less the cost to collect or changes in generally accepted interpretation recover such amount). If the Indemnified Party realizes any such amount after the date on which a payment pursuant to this Article VI has been made to the Indemnified Party, the Indemnified Party shall promptly make payment to the Indemnifying Party equal to such amount; provided that such payment shall not exceed the amount of the payment made to the Indemnified Party pursuant to this Article VI. For the avoidance of doubt, this Section 6.3(b) shall not be construed to apply to any amounts recovered from any self insurance, captive insurance vehicle, or application of Applicable Law; orother similar arrangement.
(e) To the extent that a Tax Benefit due to any changes Loss actually is realized by an Indemnified Party due to Losses in Applicable Accounting Standards the same taxable year in which such Indemnified Party received a payment pursuant to Section 6.1 or generally accepted interpretation Section 6.2, as applicable, for such Loss, the Indemnified Party shall reimburse the Indemnifying Party the amount of such Tax Benefit within a reasonable time after the Tax Return reflecting such Tax Benefit is filed with the applicable taxing authority; provided that such calculation shall be a one-time determination by the Indemnified Party in connection with such Tax filing and shall not be subject to re-calculation or application further claim for reimbursement by the Indemnifying Party thereafter. For purposes of Applicable Accounting Standardsthis Section 6.3(e), a “Tax Benefit” means an amount by which the Tax liability of the Indemnified Party actually is reduced by a deduction, reduction of income, or a refund or credit, in other words the difference between (A) the aggregate amount of Taxes that the Indemnified Party would have been required to pay for the relevant Tax year if such Loss had not been incurred and (B) the aggregate amount of Taxes that the Indemnified Party is actually required to pay for the relevant Tax year taking such Loss into account.
(f) Notwithstanding anything in this Agreement to the contrary, neither Buyer nor any Seller shall be liable for any special, indirect, punitive, exemplary or consequential damages, any lost profits, lost business opportunity, diminution in value or similar theory, except to the extent actually awarded in a Third Party Claim.
Appears in 1 contract
Sources: Asset Purchase Agreement (Avadel Pharmaceuticals PLC)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out Subject to the provisions of any breach or inaccuracy of any the Fundamental Company Representations or any breach of any covenant of the Company Section 6.3(b):
(i) No indemnification shall be wholly barred and unenforceable unless payable by a written notice Seller Indemnifying Person with respect to Losses arising from a Seller Event of claim Indemnification described in accordance with Section 9.03 or Section 9.04 is delivered by 6.2(a)(i) until the Glencore Indemnitee cumulative amount of all such Losses exceeds $500,000 (the “Deductible”), whereupon the Seller Indemnifying Persons shall be liable for Losses in excess of such amount, subject to the Company on or prior limitations set forth in Section 6.3(a)(ii), provided, however, that in determining whether the Deductible has been obtained, only individual Losses in excess of $50,000 shall be considered, provided, further, however, that the foregoing shall not apply with respect to the latest date permitted by applicable law (or in the case of the covenants of the Company, such shorter period expressly specified therein); and
(b) any Claim arising out of Losses resulting from any breach or inaccuracy of any of Sections, 3.2, 3.5, 3.6(a), 3.14(b) and 3.15 (the representations and warranties of “Seller Fundamental Representations”), such that the Company contained in this Agreement, other than the Fundamental Company Representations, Buyer Indemnified Persons shall be wholly barred and unenforceable unless a written notice entitled to recover the full amount of claim in accordance with Section 9.03 or Section 9.04 is delivered by the Glencore Indemnitee such Losses, subject to the Company within 12 months of the date of this Agreementlimitations set forth in Section 6.3(a)(ii).
(2ii) Notwithstanding The maximum aggregate liability of all Seller Indemnifying Persons pursuant to this Article VI with respect to Losses resulting from all Seller Events of Indemnification described in Section 9.02(16.2(a)(i) shall be an amount equal to $1,800,000 to (the “Cap”), any Claim arising out of any provided, however, that the foregoing shall not apply to Losses resulting from a breach or inaccuracy of any representation or warranty the Seller Fundamental Representations, provided that in respect of which indemnity may be sought that was caused as a result of fraud may be brought at any time on or prior to no event shall the latest date permitted by Applicable LawSeller Indemnified Persons liability under this Agreement exceed the Purchase Price.
(3iii) The maximum aggregate liability of the Buyer Indemnifying Persons pursuant to this Article VI with respect to Losses resulting from all Buyer Events of Indemnification shall not exceed the Purchase Price.
(b) Notwithstanding any other provision of this Agreement: Agreement to the contrary, the provisions of Section 6.2(a) shall not apply to Losses arising from fraud.
(ac) The parties agree that any payment pursuant to an indemnification obligation under this Article VII shall be treated for federal income tax purposes as an adjustment to the Company Purchase Price.
(d) In calculating amounts payable to an Indemnified Person, the amount of the indemnified Losses shall not be liable to any Glencore Indemnitee in respect duplicative of any breach other Loss for which an indemnification claim has been made and shall be computed net of any representation or warranty of the Company in this Agreement: (i) for payments recoverable by the Indemnified Person under any individual claim (or series of related claims) for insurance policy with respect to such Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; and (ii) unless and until the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only to the extent of such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud any prior or subsequent recovery by the CompanyIndemnified Person from any person with respect to such Losses.
(4) Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; or
(e) any changes in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting Standards.
Appears in 1 contract
Sources: Asset Purchase Agreement (Alloy Inc)
Limitations. (1) Notwithstanding any other provision of this Agreement:
(a) any Claim arising out No amounts of indemnity shall be payable as a result of any breach or inaccuracy claim arising under Section 8.2(a)(i), other than as a result of any the Fundamental Company Representations claim arising under any inaccuracy in or any breach of any covenant representation and warranty made by Seller pursuant to Sections 3.1 [organization and qualification], 3.2
(a) [authority], 3.3 [ownership of Shares and Subsidiaries] and 3.24 [brokers], unless and until the Company shall be wholly barred and unenforceable unless a written notice Purchaser Indemnified Parties have suffered, incurred, sustained or become subject to Losses in excess of claim in accordance with Section 9.03 or Section 9.04 is delivered by $8,840,000 (the Glencore Indemnitee to the Company on or prior to the latest date permitted by applicable law (or “Deductible”) in the aggregate, in which case the Purchaser Indemnified Parties may bring a claim for all Losses in excess of the covenants of the Company, such shorter period expressly specified therein); andamount.
(b) Other than any Claim claim arising out of any breach or inaccuracy of any of the representations and warranties of the Company contained in this Agreementunder Section 8.2(a)(ii), other than the Fundamental Company Representations, shall be wholly barred and unenforceable unless a written notice of claim in accordance with Section 9.03 8.2(a)(iii) or Section 9.04 8.2(b), no claim for Losses arising from a single event or a series of related events or from the same events or circumstances may be brought by Purchaser unless the aggregate amount of such claim or series of related claims or same events or circumstances is delivered by in excess of $50,000 (the Glencore Indemnitee to “De Minimis Claim”). Any losses not exceeding the Company within 12 months of De Minimis Claim amount will not be used in computing the date of this AgreementDeductible.
(2c) Notwithstanding Section 9.02(1), any Claim arising out of any breach or inaccuracy of any representation or warranty in respect of which indemnity may be sought that was caused Other than as a result of fraud may be brought at any time on claim arising under Section 8.2(a)(ii), Section 8.2(a)(iii), Section 8.2(b) or prior to the latest date permitted by Applicable Law.
(3) Notwithstanding any other provision of this Agreement: (a) the Company shall not be liable to any Glencore Indemnitee inaccuracy in respect of or any breach of any representation and warranty made by Seller pursuant to Sections 3.1 [organization and qualification], 3.2
(a) [authority], 3.3 [ownership of Shares and Subsidiaries] and 3.24 [brokers], the maximum liability of Seller under Section 8.2 shall not exceed $66,300,000 in the aggregate (the “Indemnity Amount”).
(d) Without duplication the amount of indemnification payable to an Indemnified Party under this Article VIII shall be reduced to take account of any net Tax benefit reasonably expected to be realized by the Indemnified Party or warranty its Affiliates as a result of the Company in this Agreement: incurrence or payment of any Loss being indemnified. In connection with any claim for indemnification, the Indemnified Party will (i) for seek full recovery from any individual claim (or series of related claims) for Losses unless the amount of Losses in respect of such claim (or series of related claims) exceeds $[Redacted - Commercially sensitive information]; third parties and under all insurance policies covering any Loss and (ii) unless and until use its commercially reasonable efforts to mitigate any actual or potential Loss, in each case to the same extent as it would if such Loss were not subject to indemnification pursuant to the terms of this Agreement. In the event that a net insurance or other recovery is received by the Indemnified Party with respect to any Loss for which an Indemnified Party has been indemnified by the Indemnifying Party hereunder, then a refund equal to the aggregate amount of all Losses exceeds $[Redacted - Commercially sensitive information] and then only the net recovery by the Indemnified Party will be made, which refund will be paid promptly to the extent of Indemnifying Party that provided such excess; and (b) the Company's maximum liability under Section 9.01 shall not exceed $[Redacted - Commercially sensitive information] in the aggregate; provided that the foregoing limitations shall not apply in the case of fraud by the Company.
(4) Notwithstanding anything indemnification to the contrary in this Agreement, the Company shall not be liable under this Agreement in respect of:
(a) any consequential, special, indirect, multiple-of-profit or punitive damages or Losses in connection with a Direct Claim;
(b) any Loss which is contingent unless and until such contingent Loss becomes an actual Loss that is due and payable;
(c) any Loss to the extent that such Loss arises as a result of a failure by Glencore to comply with any of its obligations under this Agreement;
(d) any changes in Applicable Law or changes in generally accepted interpretation or application of Applicable Law; orIndemnified Party.
(e) None of the limitations set forth in this Section 8.4 or otherwise in this Agreement shall apply to claims for fraud.
(f) For the avoidance of doubt the indemnity set forth in Section 8.2(b) is not subject to any changes of the limitations applicable to the representations and warranties set forth in Applicable Accounting Standards or generally accepted interpretation or application of Applicable Accounting StandardsSection 3.10 [taxes].
Appears in 1 contract