Monetary Limitations. (a) The Seller shall have no obligation to indemnify the Buyer Indemnified Persons in respect of Losses arising from the breach of, or inaccuracy in, any representation or warranty pursuant to Section 10.1.1(a) or Losses arising from the breach of any covenant or agreement to be performed prior to Closing pursuant to Section 10.1.1(b) unless the aggregate amount of all such Losses incurred or suffered by the Buyer Indemnified Persons exceeds [**] Dollars ($[**]) (the “Threshold Amount”), in which case the Seller shall indemnify the Buyer Indemnified Persons or all such Losses, including the Threshold Amount, and not only to the extent such Losses exceed the Threshold Amount, and the Seller’s aggregate Liability in respect of Indemnification Claims arising from the breach of, or inaccuracy in, any representation or warranty pursuant to Section 10.1.1(a) and Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) shall not exceed [**] Dollars ($[**]) (the “Indemnity Cap”). (b) Notwithstanding anything to the contrary in Section 10.1.2(a), the monetary limitations in this Section 10.1.2 shall not apply to Indemnification Claims pursuant to Sections 10.1.1(a) in respect of breaches of, or inaccuracies in, representations and warranties set forth in Sections 3.1 (Organization), 3.2 (Capital Structure), 3.3 (Power and Authorization), 3.4(e) (Noncontravention of Organizational Documents), 3.11 (Environmental Matters) 3.12 (No Brokers), 3.13 (Taxes) 4.2 (Power and Authorization) 4.4(e) (Noncontravention of Organizational Documents) and 4.6 (No Brokers) (said Sections 3.1, 3.2, 3.3, 3.4(e), 3.11, 3.12, 3.13, 4.2, 4.4(e) and 4.6 being hereinafter referred to collectively as the “Fundamental Representations and Warranties”). (c) Notwithstanding anything to the contrary in Section 10.1.2(a) and Section 10.1.2(b) the Sellers aggregate Liability in respect of Indemnification Claims arising from the breach of or inaccuracy in the representations or warranties set forth in Section 3.5.1 (Litigation) and Section 3.8.1(a) (Contractual Obligations of the Company) pursuant to Section 10.1.1(a), together with the Seller’s aggregate Liability for Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) and Indemnification Claims arising from the breach of, or inaccuracy in, any other representation or warranty pursuant to Section 10.1.1(a), other than in respect of the Fundamental Representations and Warranties shall not exceed [**] Dollars ($[**]) (the “Special Indemnity Cap”). (d) Notwithstanding anything to the contrary in this Agreement, Indemnification Claims pursuant to Sections 10.1.1(c), 10.1.1(d) or 10.1.1(c), or for Losses arising from the breach of any covenant or agreement to be performed by Seller after the Closing pursuant to Section 10.1.1(b) other than any breach of Sellers obligations under Section 3 of the Transition Services Agreement (i.e., Consulting Services) are not subject to any of the monetary limitations in this Section 10.1.2, including the Threshold Amount, the Indemnity Cap and the Special Indemnity Cap.
Appears in 3 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Durata Therapeutics, Inc.), Stock Purchase Agreement (Durata Therapeutics, Inc.)
Monetary Limitations. (a) The Buyer will have no obligation to indemnify the Seller shall Indemnified Persons and the Seller will have no obligation to indemnify the Buyer Indemnified Persons in pursuant to Section 7.2 with respect of to Losses arising from the breach of, or inaccuracy in, any representation or warranty pursuant to Section 10.1.1(a) or Losses arising from the breach of any covenant or agreement to be performed prior to Closing pursuant to Section 10.1.1(b) described therein unless the aggregate amount of all such Losses incurred or suffered by the Buyer Indemnified Persons exceeds [**] Dollars ($[**]) 200,000 (the “Threshold AmountThreshold”), in ) (at which case point the Seller shall indemnify or Buyer will indemnify, as applicable the Seller Indemnified Persons or the Buyer Indemnified Persons or for all such LossesLosses in excess of the Threshold). Subject to paragraph (c) below, including (i) the Threshold Amount, and not only maximum aggregate liability of the Seller for all claims by the Buyer Indemnified Persons under 7.1(a)(i) for Losses shall be limited to the extent such Losses exceed the Threshold Amount, and the Seller’s aggregate Liability in respect of Indemnification Claims arising from the breach of, or inaccuracy in, any representation or warranty pursuant to Section 10.1.1(a) and Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) shall not exceed [**] Dollars ($[**]) 3,500,000 (the “Indemnity Cap”)) and (ii) the maximum aggregate liability of Buyer for all claims by the Seller Indemnified Persons under Section 7.1(b)(i) for Losses shall be limited to the Cap.
(b) Notwithstanding anything Any and all dollar amounts payable by the Seller as an Indemnifying Party to the contrary Buyer as an Indemnified Party in connection with a claim for Losses under Section 10.1.2(a)6.1(a) will be paid in cash by Seller in accordance with payment instructions provided by the Buyer. Any and all dollar amounts payable by the Buyer as an Indemnifying Party to the Seller as an Indemnified Party in connection with a claim for Losses under Section 6.1(b) will be paid in cash in accordance with payment instructions provided by the Seller.
(c) Notwithstanding the foregoing, the monetary limitations on liability in paragraphs (a) and (b) of this Section 10.1.2 7.4 shall not apply to Indemnification Claims pursuant (i) claims related to Sections 10.1.1(a) in respect breaches of breaches of, or inaccuracies in, in the representations and warranties set forth in Sections 3.1 (Organization), 3.2 (Capital Structure), 3.3 (Power and Authorization), 3.4(e) (Noncontravention of Organizational Documents), 3.11 (Environmental Matters) 3.12 (No Brokers), 3.13 (Taxes) 4.2 (Power and Authorization) 4.4(e) (Noncontravention of Organizational Documents) and 4.6 (No Brokers) (said Sections Section 3.1, 3.2, 3.3, 3.4(e), 3.113.5, 3.12, 3.13, 4.2, 4.4(e3.13 and 3.19; (ii) claims for indemnification pursuant to any provision of Section 7 other than Sections 7.2(a)(i) and 4.6 being hereinafter referred 7.2(b)(i); provided however, that the aggregate liability with respect Losses arising as described in clauses (i) and (ii) hereof shall not exceed the Purchase Price and provided further nothing herein shall be deemed to collectively as limit an Indemnified Party’s ability to bring a claim for equitable relief or from bringing any action based on fraud or intentional misrepresentation or the “Fundamental Representations monetary relief available for such claim. Subject to Section 6.3(b), any and Warranties”).
(c) Notwithstanding anything all dollar amounts payable by an Indemnifying Party to the contrary an Indemnified Party in connection with a claim for Losses under any provision of Section 10.1.2(a7 other than Section 7.1(a)(i) and Section 10.1.2(b7.1(b)(i) will be paid in cash without deduction or set off by such Indemnifying Party in accordance with payment instructions provided by the Sellers aggregate Liability in respect of Indemnification Claims arising from the breach of or inaccuracy in the representations or warranties set forth in Section 3.5.1 (Litigation) and Section 3.8.1(a) (Contractual Obligations of the Company) pursuant to Section 10.1.1(a), together with the Seller’s aggregate Liability for Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) and Indemnification Claims arising from the breach of, or inaccuracy in, any other representation or warranty pursuant to Section 10.1.1(a), other than in respect of the Fundamental Representations and Warranties shall not exceed [**] Dollars ($[**]) (the “Special Indemnity Cap”)Indemnified Party.
(d) Notwithstanding anything to the contrary in this Agreement, Indemnification Claims pursuant to Sections 10.1.1(c), 10.1.1(d) or 10.1.1(c), or for Losses arising from the breach of any covenant or agreement to be performed by Seller after the Closing pursuant to Section 10.1.1(b) other than any breach of Sellers obligations under Section 3 of the Transition Services Agreement (i.e., Consulting Services) are not subject to any of the monetary limitations in this Section 10.1.2, including the Threshold Amount, the Indemnity Cap and the Special Indemnity Cap.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Green Mountain Coffee Roasters Inc), Asset Purchase Agreement (Tullys Coffee Corp)
Monetary Limitations. (a) The Seller Buyer shall have no obligation to indemnify the Buyer Seller Indemnified Persons in respect of Losses arising from the breach of, or inaccuracy in, any representation or warranty pursuant to Section 10.1.1(a10.2.1(a) or Losses arising from the breach of any covenant or agreement to be performed prior to Closing pursuant to Section 10.1.1(b) 10.2.1(b), unless the aggregate amount of all such Losses incurred or suffered by the Buyer Seller Indemnified Persons exceeds [**] Dollars ($[**]) (the “Threshold Amount”), in which case the Seller Buyer shall indemnify the Buyer Seller Indemnified Persons or for all such Losses, including the Threshold Amount, and not only to the extent such Losses exceed the Threshold Amount, and the SellerBuyer’s aggregate Liability in respect of Indemnification Claims arising from the breach of, or inaccuracy in, any representation or warranty pursuant to Section 10.1.1(a10.2 1(a) and Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b10.2.1(b) shall will not exceed [**] Three Million Dollars ($[**]) (3,000,000); provided, however, that the “Indemnity Cap”).
(b) Notwithstanding anything to the contrary in Section 10.1.2(a), the foregoing monetary limitations in this Section 10.1.2 shall 10.2.2 will not apply to Indemnification Claims pursuant to Sections 10.1.1(a10.2.1(a) in respect of breaches of, or inaccuracies in, representations and warranties set forth in Sections 3.1 5.1 (Organization), 3.2 (Capital Structure), 3.3 5.2 (Power and Authorization), 3.4(e5.4(e) (Noncontravention Breach of Organizational Documents), 3.11 (Environmental Matters) 3.12 or 5.6 (No Brokers), 3.13 (Taxes) 4.2 (Power and Authorization) 4.4(e) (Noncontravention of Organizational Documents) and 4.6 (No Brokers) (said Sections 3.1, 3.2, 3.3, 3.4(e), 3.11, 3.12, 3.13, 4.2, 4.4(e) and 4.6 being hereinafter referred to collectively as the “Fundamental Representations and Warranties”).
(c) Notwithstanding anything to the contrary in Section 10.1.2(a) and Section 10.1.2(b) the Sellers aggregate Liability in respect of Indemnification Claims arising from the breach of or inaccuracy in the representations or warranties set forth in Section 3.5.1 (Litigation) and Section 3.8.1(a) (Contractual Obligations of the Company) pursuant to Section 10.1.1(a), together with the Seller’s aggregate Liability for Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) and Indemnification Claims arising from the breach of, or inaccuracy in, any other representation or warranty pursuant to Section 10.1.1(a), other than in respect of the Fundamental Representations and Warranties shall not exceed [**] Dollars ($[**]) (the “Special Indemnity Cap”).
(d) Notwithstanding anything to the contrary in this Agreement, . Indemnification Claims pursuant to Sections 10.1.1(c), 10.1.1(d10.2.1(c) or 10.1.1(c10.2.1(d), or for Losses arising from the breach of any covenant or agreement to be performed by Seller the Buyer after the Closing pursuant to Section 10.1.1(b) other than any breach of Sellers obligations under Section 3 of the Transition Services Agreement (i.e.10.2.l(b), Consulting Services) are not subject to any of the monetary limitations set forth in this Section 10.1.2, including the Threshold Amount, the Indemnity Cap and the Special Indemnity Cap10.2.2.
Appears in 3 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Durata Therapeutics, Inc.), Stock Purchase Agreement (Durata Therapeutics, Inc.)
Monetary Limitations. (a) The Neither any Seller shall nor any Principal will have no any obligation to indemnify the Buyer Indemnified Persons pursuant to Section 7.01(a)(ii), Section 7.01(b)(ii), or Section 7.01(b)(v) in respect of Losses arising from the breach of, or inaccuracy in, any representation representation, warranty or warranty pursuant to Section 10.1.1(a) statement described therein (or Losses arising from the breach in respect of any covenant or agreement to be performed prior to Closing pursuant to Section 10.1.1(bSpecified Liability) unless and until the aggregate amount of all such Losses incurred or suffered by the Buyer Indemnified Persons exceeds [**] Dollars $500,000 ($[**]) (at which point the “Threshold Amount”), in which case Sellers and the Seller shall Principals will indemnify the Buyer Indemnified Persons or for all such Losses, including Losses in excess of such amount in accordance with the Threshold Amount, and not only to the extent such Losses exceed the Threshold Amount, other provisions of this ARTICLE VII). The Sellers’ and the Seller’s Principals’ aggregate Liability liability in respect of Indemnification Claims arising from the breach of, or inaccuracy in, any representation or warranty claims for indemnification pursuant to Section 10.1.1(a7.01(a)(ii), Section 7.01(b)(ii), or Section 7.01(b)(v) and Indemnification Claims brought after will not exceed $10 million. The limitations in the Closing arising from the breach of any covenant or agreement immediately preceding two sentences will not apply to be performed prior to the Closing (a) claims for indemnification pursuant to Section 10.1.1(b7.01(a)(ii) shall not exceed [**] Dollars ($[**]) (the “Indemnity Cap”).
(b) Notwithstanding anything to the contrary in or Section 10.1.2(a), the monetary limitations in this Section 10.1.2 shall not apply to Indemnification Claims pursuant to Sections 10.1.1(a7.01(b)(ii) in respect of breaches of, or inaccuracies in, representations any Seller Fundamental Representation or (b) claims for indemnification based upon fraud, intentional misrepresentation or intentional breach of any representation or warranty in ARTICLE III or ARTICLE IV. Subject to the immediately following sentence, claims for indemnification pursuant to any provision of Section 7.01(a) or Section 7.01(b) (other than Section 7.01(a)(ii), Section 7.01(b)(ii), and warranties Section 7.01(b)(v)) are not subject to the monetary limitations set forth in Sections 3.1 (Organizationthis Section 7.01(c), 3.2 (Capital Structure), 3.3 (Power and Authorization), 3.4(e) (Noncontravention of Organizational Documents), 3.11 (Environmental Matters) 3.12 (No Brokers), 3.13 (Taxes) 4.2 (Power and Authorization) 4.4(e) (Noncontravention of Organizational Documents) and 4.6 (No Brokers) (said Sections 3.1, 3.2, 3.3, 3.4(e), 3.11, 3.12, 3.13, 4.2, 4.4(e) and 4.6 being hereinafter referred to collectively as the “Fundamental Representations and Warranties”).
(c) Notwithstanding anything to the contrary in Section 10.1.2(a) and Section 10.1.2(b) the Sellers aggregate Liability in respect of Indemnification Claims arising from the breach of or inaccuracy in the representations or warranties set forth in Section 3.5.1 (Litigation) and Section 3.8.1(a) (Contractual Obligations of the Company) pursuant to Section 10.1.1(a), together with the Seller’s aggregate Liability for Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) and Indemnification Claims arising from the breach of, or inaccuracy in, any other representation or warranty pursuant to Section 10.1.1(a), other than in respect of the Fundamental Representations and Warranties shall not exceed [**] Dollars ($[**]) (the “Special Indemnity Cap”).
(d) . Notwithstanding anything to the contrary in this Agreement, Indemnification Claims pursuant to Sections 10.1.1(c), 10.1.1(d(x) or 10.1.1(c), or for Losses arising from in no event shall the breach of any covenant or agreement to be performed by Seller after the Closing pursuant to Section 10.1.1(b) other than any breach of Sellers obligations under Section 3 aggregate liability of the Transition Services Agreement (i.e., Consulting Services) are not subject to any of Principals and the monetary limitations in Sellers under this ARTICLE VII and Section 10.1.2, including 8.01 exceed the Threshold Amount, the Overall Indemnity Cap and (y) in no event shall the Special aggregate liability of any Principal under Section 7.01 and Section 8.01 (when combined, without duplication with his Pro Rata Percentage of the Sellers’ liability under such provisions) exceed such Principal’s Pro-Rata Percentage of the Overall Indemnity Cap. Notwithstanding anything to the contrary in this Agreement, no amounts distributed to Buyer out of the Escrow Cash Amount in accordance with the Escrow Agreement shall be applied against the $10 million limit described in the second sentence of this Section 7.01(c).
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Kohlberg Capital CORP), Purchase and Sale Agreement (Kohlberg Capital CORP)
Monetary Limitations. (a) The Seller shall Sellers will have no obligation to indemnify the Buyer Indemnified Persons pursuant to Section 11.1.1 in respect of Losses arising from the breach of, or inaccuracy in, any representation or warranty pursuant to Section 10.1.1(a) or Losses arising from the breach of any covenant or agreement to be performed prior to Closing pursuant to Section 10.1.1(b) described therein unless the aggregate amount of all such Losses incurred or suffered by the Buyer Indemnified Persons exceeds [**] Dollars $196,000 ($[**]) (at which point the “Threshold Amount”), in which case the Seller shall Sellers will indemnify the Buyer Indemnified Persons or for all such LossesLosses from dollar one, including the Threshold Amount, first $196,000 and not only to the extent such Losses exceed $196,000); provided, however, that the Threshold Amount, and the Seller’s Sellers’ aggregate Liability liability in respect of Indemnification Claims arising from the breach of, or inaccuracy in, any representation or warranty claims for indemnification pursuant to Section 10.1.1(a11.1.1 will not exceed $1,900,000; provided further, however, that the foregoing limitations will not apply to (a) and Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing claims for indemnification pursuant to Section 10.1.1(b) shall not exceed [**] Dollars ($[**]) (the “Indemnity Cap”).
(b) Notwithstanding anything to the contrary in Section 10.1.2(a), the monetary limitations in this Section 10.1.2 shall not apply to Indemnification Claims pursuant to Sections 10.1.1(a) 11.1.1 in respect of breaches of, or inaccuracies in, representations and warranties set forth in Sections 3.1 (Organization), 3.2 (Capital Structure), 3.3 (Power and Authorization), 3.4(e3.5(e) (Noncontravention Breach of Organizational Documents), 3.11 3.6 (Environmental Ownership; Debt), 3.11.1 (Assets), 3.16.1(a) (Legal Compliance), 3.16.2 (Illegal Payments), 3.17 (Tax Matters) 3.12 ), 3.27 (No Brokers), 3.13 4.1 (Taxes) Organization), 4.2 (Power and Authorization) 4.4(e) ), 4.3 (Noncontravention of Organizational Documents) Noncontravention), 4.4 (Title), 5.1 (Organization), 5.2 (Power and 4.6 Authorization), 5.4 (Noncontravention), 5.5 (Title), 5.6 (No Brokers) and 5.7 (said Sections 3.1, 3.2, 3.3, 3.4(e), 3.11, 3.12, 3.13, 4.2, 4.4(eOwnership) and 4.6 being hereinafter referred to collectively as the “Fundamental Representations and Warranties”).
or (cb) Notwithstanding anything claims based upon fraud or intentional misrepresentation. Claims for indemnification pursuant to the contrary in Section 10.1.2(a) proviso immediately preceding this sentence and Section 10.1.2(b) the Sellers aggregate Liability in respect any provision of Indemnification Claims arising from the breach of or inaccuracy in the representations or warranties set forth in Section 3.5.1 (Litigation) and Section 3.8.1(a) (Contractual Obligations of the Company) pursuant to Section 10.1.1(a), together with the Seller’s aggregate Liability for Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) and Indemnification Claims arising from the breach of, or inaccuracy in, any other representation or warranty pursuant to Section 10.1.1(a), this Agreement other than in respect of the Fundamental Representations and Warranties shall not exceed [**] Dollars ($[**]) (the “Special Indemnity Cap”).
(d) Notwithstanding anything to the contrary in this Agreement, Indemnification Claims pursuant to Sections 10.1.1(c), 10.1.1(d) or 10.1.1(c), or for Losses arising from the breach of any covenant or agreement to be performed by Seller after the Closing pursuant to Section 10.1.1(b) other than any breach of Sellers obligations under Section 3 of the Transition Services Agreement (i.e., Consulting Services) 11.1.1 are not subject to any of the monetary limitations set forth in this Section 10.1.2, including the Threshold Amount, the Indemnity Cap and the Special Indemnity Cap11.1.2.
Appears in 1 contract
Monetary Limitations. (a) The Seller shall will have no obligation to indemnify the Buyer Indemnified Persons pursuant to Sections 6.1.1(a) in respect of Losses arising from the breach of, or inaccuracy in, any representation or warranty pursuant to Section 10.1.1(a) or Losses arising from the breach of any covenant or agreement to be performed prior to Closing pursuant to Section 10.1.1(b) unless the aggregate amount of all such Losses incurred or suffered by the Buyer Indemnified Persons exceeds [**] Dollars $20,000 ($[**]) at which point Seller will indemnify Buyer Indemnified Persons for all such Losses (the “Threshold AmountIndemnity Deductible”), in which case the Seller shall indemnify the Buyer Indemnified Persons or all such Losses, including the Threshold Amount, and not only to the extent such Losses exceed the Threshold Amount, and the Seller’s aggregate Liability liability in respect of Indemnification Claims claims for indemnification arising from the breach of, or inaccuracy in, any representation or warranty pursuant to Section 10.1.1(aSections 6.1.1(a) and Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) shall will not exceed [**] Dollars ($[**]) 500,000 (the “Indemnity Cap”).
, provided, however, that (bX) Notwithstanding anything to the contrary in Section 10.1.2(a), the monetary limitations in this Section 10.1.2 shall Indemnity Cap will not apply to Indemnification Claims (i) claims for indemnification pursuant to Sections 10.1.1(a6.1.1(a) in respect of breaches of, or inaccuracies in, representations and warranties set forth in Sections 3.1 (Organization), 3.2 (Capital Structure), 3.3 (Power and Authorization), 3.4(e) (Noncontravention Breach of Organizational Documents), 3.11 3.8(f) and 3.14 (Tax Matters), 3.16 (Environmental Matters) 3.12 (No Brokers), 3.13 (Taxes) 4.2 (Power and Authorization) 4.4(e) (Noncontravention of Organizational Documents) and 4.6 3.24 (No Brokers) (said Sections 3.1, 3.2, 3.3, 3.4(e), 3.11, 3.12, 3.13, 4.2, 4.4(e) and 4.6 being hereinafter referred with respect to collectively as the “Fundamental Representations and Warranties”).
(c) Notwithstanding anything to the contrary in Section 10.1.2(a) and Section 10.1.2(b) the Sellers which Seller’s aggregate Liability liability in respect of Indemnification Claims arising from the breach of or inaccuracy in the representations or warranties set forth in Section 3.5.1 (Litigation) and Section 3.8.1(a) (Contractual Obligations of the Company) pursuant to Section 10.1.1(a), together with the Seller’s aggregate Liability claims for Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) and Indemnification Claims indemnification arising from the breach of, or inaccuracy in, any other representation or warranty pursuant to Section 10.1.1(a)Sections 6.1.1(a) will not exceed the aggregate Purchase Price actually received by Seller, other than or (ii) claims based upon fraud or intentional misrepresentation and (Y) the Indemnity Deductible shall not apply to (i) claims for indemnification pursuant to Sections 6.1.1(a) in respect of the Fundamental Representations breaches of, or inaccuracies in, representations and Warranties shall not exceed [**] Dollars warranties set forth in Sections 3.1 ($[**]Organization), 3.2 (Power and Authorization), 3.4(e) (the “Special Indemnity Cap”).
(d) Notwithstanding anything to the contrary in this Agreement, Indemnification Claims pursuant to Sections 10.1.1(cBreach of Organizational Documents), 10.1.1(d3.8(f) or 10.1.1(cand 3.14 (Tax Matters), 3.24 (No Brokers), or (ii) claims based upon fraud or intentional misrepresentation. Claims for Losses arising from the breach of any covenant or agreement to be performed by Seller after the Closing indemnification pursuant to any other provision of Section 10.1.1(b) other than any breach of Sellers obligations under Section 3 of the Transition Services Agreement (i.e., Consulting Services) 6.1.1 are not subject to any of the monetary limitations set forth in this Section 10.1.2, including the Threshold Amount, the Indemnity Cap and the Special Indemnity Cap6.1.2.
Appears in 1 contract
Monetary Limitations. (a) The Seller shall Spectrum will have no obligation to indemnify the Buyer Purchaser Indemnified Persons in respect of Losses arising from the breach of, or inaccuracy in, any representation or warranty pursuant to Section 10.1.1(a14.1.1(a) or Losses arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b14.1.1(b) with respect to claims brought after the Closing, unless the aggregate amount of all such Losses incurred or suffered by the Buyer Purchaser Indemnified Persons exceeds [***] Dollars ($the “Indemnity Basket”) (at which point Spectrum will indemnify the Purchaser Indemnified Persons for all such Losses exceeding [***]) (). Notwithstanding the “Threshold Amount”)foregoing, in which case the Seller shall indemnify the Buyer Indemnified Persons or all such Losses, including the Threshold Amount, and not only to the extent such Losses exceed the Threshold Amount, and the SellerSpectrum’s aggregate Liability liability in respect of Indemnification Claims claims for indemnification arising from the breach of, or inaccuracy in, any representation or warranty contained in [***] shall not exceed [***]. Further, Spectrum’s aggregate liability in respect of claims for indemnification arising from the breach of, or inaccuracy in, any representation or warranty pursuant to Section 10.1.1(a14.1.1(a) and Indemnification Claims claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing by Spectrum hereunder pursuant to Section 10.1.1(b) shall 14.1.1(b), will not exceed [***] Dollars ($[**]) (such amount, the “Maximum Indemnity Cap”).
(b) Notwithstanding anything to the contrary in Section 10.1.2(a), the . The monetary limitations contained in this Section 10.1.2 shall 14.1.2 will not apply to Indemnification Claims pursuant to Sections 10.1.1(a) in respect of breaches of, or inaccuracies in, representations and warranties set forth in Sections 3.1 (Organization), 3.2 (Capital Structure), 3.3 (Power and Authorization), 3.4(e) (Noncontravention of Organizational Documents), 3.11 (Environmental Matters) 3.12 (No Brokers), 3.13 (Taxes) 4.2 (Power and Authorization) 4.4(e) (Noncontravention of Organizational Documents) and 4.6 (No Brokers) (said Sections 3.1, 3.2, 3.3, 3.4(e), 3.11, 3.12, 3.13, 4.2, 4.4(e) and 4.6 being hereinafter referred to collectively as the “Fundamental Representations and Warranties”).
(c) Notwithstanding anything to the contrary in Section 10.1.2(a) and Section 10.1.2(b) the Sellers aggregate Liability in respect of Indemnification Claims arising from the breach of or inaccuracy in the representations or warranties set forth in Section 3.5.1 (Litigation) and Section 3.8.1(a) (Contractual Obligations of the Company) pursuant to Section 10.1.1(a), together with the Seller’s aggregate Liability for Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) and Indemnification Claims arising from the breach of, or inaccuracy in, any other representation or warranty pursuant to Section 10.1.1(a), other than in respect of the Fundamental Representations and Warranties shall not exceed [**] Dollars ($[**]) (the “Special Indemnity Cap”).
(d) Notwithstanding anything to the contrary in this Agreement, Indemnification . Claims for indemnification pursuant to Sections 10.1.1(c), 10.1.1(d) or 10.1.1(c), or for Losses arising from the breach any other provision of any covenant or agreement to be performed by Seller after the Closing pursuant to Section 10.1.1(b) other than any breach of Sellers obligations under Section 3 of the Transition Services Agreement (i.e., Consulting Services) 14.1.1 are not subject to any of the monetary limitations set forth in this Section 10.1.2, including the Threshold Amount, the Indemnity Cap and the Special Indemnity Cap14.1.2.
Appears in 1 contract
Sources: License and Asset Purchase Agreement (Spectrum Pharmaceuticals Inc)
Monetary Limitations. (ai) The Subject to the provisions of this ARTICLE XI, all Losses imposed upon or incurred by the Buyer Indemnified Parties for claims made pursuant to Section 11.2(a)(vii) shall be satisfied and paid in cash in immediately available funds directly by the Family Trust Seller, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, on a joint and several basis, which shall not exceed $35,000,000 in the aggregate. Notwithstanding anything to the contrary, Losses arising from or related to claims made pursuant to Section 11.2(a)(vii) shall not be recoverable from the Indemnity Escrow Fund.
(ii) Subject to the provisions of this ARTICLE XI, all Losses imposed upon or incurred by the Buyer Indemnified Parties for claims made pursuant to Section 11.2(a) (other than pursuant to Section 11.2(a)(vii)) shall be satisfied solely and exclusively from the then remaining Indemnity Escrow Fund. Seller shall have no obligation Indemnifying Parties’ maximum liability to indemnify the Buyer Indemnified Persons in respect of Losses arising from the breach of, or inaccuracy in, any representation or warranty pursuant to Section 10.1.1(a) or Losses arising from the breach of any covenant or agreement to Parties under this Agreement shall be performed prior to Closing pursuant to Section 10.1.1(b) unless the aggregate amount of all such Losses incurred or suffered by the Buyer Indemnified Persons exceeds [**] Dollars ($[**]) (the “Threshold Amount”), in which case the Seller shall indemnify the Buyer Indemnified Persons or all such Losses, including the Threshold Amount, and not only limited to the extent such Losses exceed the Threshold Amount, and the Seller’s aggregate Liability Indemnity Escrow Amount (except as provided in respect of Indemnification Claims arising from the breach of, or inaccuracy in, any representation or warranty pursuant to Section 10.1.1(a) and Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) shall not exceed [**] Dollars ($[**]) (the “Indemnity Cap”11.2(b)(i)).
(biii) Notwithstanding anything Subject to the contrary in Section 10.1.2(a)provisions of this ARTICLE XI, the monetary limitations in this Section 10.1.2 shall not apply and except with respect to Indemnification Claims pursuant to Sections 10.1.1(a) claims for indemnification in respect of breaches of, or inaccuracies in, representations and warranties set forth in Sections Section 3.1 (OrganizationAuthority), Section 3.2 (Capital StructureNoncontravention), Section 3.3 (Power and AuthorizationTitle to Shares), 3.4(e) Section 5.1 (Noncontravention Organization, Capitalization of Organizational Documentsthe Acquired Companies; Authority), 3.11 clauses (a) and (b) of Section 5.4 (Noncontravention), Section 5.18 (Taxes), Section 5.21(a), Section 5.21(b) and Section 5.21(c) (Environmental Matters) 3.12 (No Brokers), 3.13 (Taxes) 4.2 (Power and Authorization) 4.4(e) (Noncontravention of Organizational Documents) and 4.6 (No Brokers) (said Sections 3.1, 3.2, 3.3, 3.4(e), 3.11, 3.12, 3.13, 4.2, 4.4(e) and 4.6 being hereinafter referred to collectively as the “Fundamental Representations and Warranties”).
(c) Notwithstanding anything to the contrary in Section 10.1.2(a) and Section 10.1.2(b) the Sellers aggregate Liability in respect of Indemnification Claims arising from the breach of or inaccuracy in the representations or warranties set forth in Section 3.5.1 5.22 (Litigation) and Section 3.8.1(a) (Contractual Obligations of the Company) pursuant to Section 10.1.1(a), together with the Seller’s aggregate Liability for Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) and Indemnification Claims arising from the breach of, or inaccuracy in, any other representation or warranty pursuant to Section 10.1.1(a), other than in respect of the Fundamental Representations and Warranties shall not exceed [**] Dollars ($[**]Brokers) (the “Special Indemnity CapFundamental Representations”).
, Seller Indemnifying Parties shall not be required to indemnify the Buyer Indemnified Parties in respect of Section 11.2(a)(i) unless the aggregate amount of all such Losses for which the Buyer Indemnified Parties are otherwise entitled to indemnification thereunder exceeds $2,112,500 (d) Notwithstanding anything the “Deductible” and the Buyer Claims to which the Deductible applies, the “Deductible Buyer Claims”). Subject to the contrary in other provisions of this AgreementARTICLE XI, Indemnification Claims once the aggregate amount of such Losses for which the Buyer Indemnified Parties are otherwise entitled to indemnification pursuant to Sections 10.1.1(csuch Deductible Buyer Claims exceeds the Deductible, then the Buyer Indemnified Parties shall be entitled to recover all such Losses in excess of the Deductible up to the Indemnity Escrow Funds. With respect to the matters described in Section 11.2(a)(i), 10.1.1(dSeller Indemnifying Parties will not be liable for Losses with respect to an individual matter or series of related matters for which a claim may be made under Section 11.2(a)(i) or 10.1.1(c(other than the Fundamental Representations), unless the aggregate amount of Losses for such matter or for series of matters exceeds $50,000 (the “Per Claim Basket”) and such Losses arising from with respect to such claims or series of related claims shall not be applied towards the breach of any covenant or agreement to be performed by Seller after the Closing pursuant to Section 10.1.1(b) other than any breach of Sellers obligations under Section 3 satisfaction of the Transition Services Agreement (i.e.Deductible unless such Losses exceed the Per Claim Basket, Consulting Services) are not subject to any in which case the full amount of such Losses shall be applied towards the monetary limitations in this Section 10.1.2, including the Threshold Amount, the Indemnity Cap and the Special Indemnity CapDeductible.
Appears in 1 contract
Monetary Limitations. Notwithstanding any other provision of this Agreement, (ai) The no Seller shall have no any obligation to indemnify the any Buyer Indemnified Persons in respect of Losses arising from the breach of, or inaccuracy in, any representation or warranty Indemnitee pursuant to Section 10.1.1(a) 10.2.6 (other than with respect to breaches or Losses arising from inaccuracies of the breach of any covenant or agreement to be performed prior to Closing pursuant to Section 10.1.1(brepresentations and warranties contained in Sections 5.1, 5.2, 5.7(a), 5.14, 5.17, 5.18 and 5.30) unless and until, and only to the extent that, the aggregate amount of all such individual Losses incurred or suffered sustained by all Buyer Indemnitees with respect to which Buyer Indemnitees are entitled to indemnification under Section 10.2.6 (other than with respect to breaches or inaccuracies of the Buyer Indemnified Persons representations and warranties contained in Sections 5.1, 5.2, 5.7(a), 5.14, 5.17, 5.18 and 5.30) exceeds [**] Two Million Dollars ($[**]2,000,000) (the “Threshold Amount”"Minimum Aggregate Loss"), in which case the Seller Sellers shall indemnify only be liable for the Buyer Indemnified Persons or amount by which all such Losses, including the Threshold Amount, and not only to the extent such Losses exceed the Threshold AmountMinimum Aggregate Loss and (ii) the aggregate liability of the Sellers to indemnify the Buyer Indemnitees for Losses under Section 10.2.6 (other than with respect to breaches or inaccuracies of the representations and warranties contained in Sections 5.1, 5.2, 5.7(a), 5.14, 5.17, 5.18 and 5.30) shall in no event exceed Forty Million Dollars ($40,000,000) (the Seller’s aggregate Liability in respect of Indemnification Claims arising from "Maximum Aggregate Loss"). Notwithstanding the breach offoregoing, or inaccuracy in, it is understood that the Sellers' obligations to indemnify any representation or warranty Buyer Indemnitee pursuant to Section 10.1.1(a) and Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement 10.2.6 with respect to be performed prior to the Closing pursuant to Section 10.1.1(b) shall not exceed [**] Dollars ($[**]) (the “Indemnity Cap”).
(b) Notwithstanding anything to the contrary in Section 10.1.2(a), the monetary limitations in this Section 10.1.2 shall not apply to Indemnification Claims pursuant to Sections 10.1.1(a) in respect of breaches of, or inaccuracies in, representations and warranties set forth in Sections 3.1 (Organization), 3.2 (Capital Structure), 3.3 (Power and Authorization), 3.4(e) (Noncontravention of Organizational Documents), 3.11 (Environmental Matters) 3.12 (No Brokers), 3.13 (Taxes) 4.2 (Power and Authorization) 4.4(e) (Noncontravention of Organizational Documents) and 4.6 (No Brokers) (said Sections 3.1, 3.2, 3.3, 3.4(e), 3.11, 3.12, 3.13, 4.2, 4.4(e) and 4.6 being hereinafter referred to collectively as the “Fundamental Representations and Warranties”).
(c) Notwithstanding anything to the contrary in Section 10.1.2(a) and Section 10.1.2(b) the Sellers aggregate Liability in respect of Indemnification Claims arising from the breach of or inaccuracy in the representations or warranties set forth contained in Section 3.5.1 Sections 5.1, 5.2, 5.7(a), 5.14, 5.17, 5.18 or 5.30 or pursuant to Sections 10.2.1, 10.2.2, 10.2.3, 10.2.4, 10.2.5, 10.2.7, 10.2.8 or 10.2.9 (Litigationtogether, the "Surviving Representations, Warranties and Obligations") shall not be subject to the Minimum Aggregate Loss or the Maximum Aggregate Loss. It is further understood and Section 3.8.1(a) agreed that the sole source of payment for any Buyer Indemnitee against, and the sole responsibility of, any Seller for indemnification pursuant to this Article 10 (Contractual Obligations except for claims for breaches of the CompanySurviving Representations, Warranties and Obligations) shall be from such Seller's Seller's Percentage of the Escrow Account pursuant to Section 10.1.1(a), together with the Seller’s Escrow Agreement and from amounts due to such Seller pursuant to the Earnout Agreement. In no event shall the aggregate Liability for Indemnification Claims brought after the Closing arising from the breach liability of any covenant or agreement to be performed prior to the Closing Seller for indemnification pursuant to Section 10.1.1(b) and Indemnification Claims arising from this Article 10 exceed the breach of, or inaccuracy in, any other representation or warranty aggregate consideration received by such Seller pursuant to Section 10.1.1(a), other than in respect of the Fundamental Representations and Warranties shall not exceed [**] Dollars ($[**]) (the “Special Indemnity Cap”).
(d) Notwithstanding anything to the contrary in this Agreement, Indemnification Claims pursuant to Sections 10.1.1(c), 10.1.1(d) or 10.1.1(c), or for Losses arising from the breach of any covenant or agreement to be performed by Seller after the Closing pursuant to Section 10.1.1(b) other than any breach of Sellers obligations under Section 3 of the Transition Services Earnout Agreement (i.e., Consulting Services) are not subject to any of the monetary limitations in this Section 10.1.2, including the Threshold Amount, the Indemnity Cap and the Special Indemnity CapEscrow Agreement.
Appears in 1 contract
Monetary Limitations. Subject to the last sentence of this Section 8.7, Seller shall not be required to indemnify Buyer Indemnitees, and shall not have any Liability under Section 8.2(a), until the aggregate amount of all Losses under Section 8.2(a) exceeds $200,000 (the “Minimum Loss”), and then only to the extent such aggregate Losses exceed the Minimum Loss. Subject to the following sentence, the aggregate amount of each of Seller’s liability for Losses under Section 8.2(a) and Buyer’s and Parent’s aggregate liability for Losses under Section 8.2(b) shall be limited in each case to an amount equal to 40% of the Purchase Price. The limitations set forth in this Section 8.7 will not apply to any Claims for indemnification in connection with, arising out of, or which would not have occurred but for:
(a) The Seller a breach of the representations and warranties contained in Section 4.1, Section 4.2, Section 4.3, Section 4.5, Section 4.8, Section 4.14, Section 4.15, Section 4.19, Section 4.23, Section 4.25(a) (but excluding clause (ii) thereof), Section 4.25(b), Section 4.25(c), Section 4.29, Section 5.1, Section 5.2, Section 5.4 and Section 5.6;
(b) fraud; or
(c) Section 8.2(c), (d), (e), (f) or (g) or Section 8.3(c) or (d); and
(d) covenants to be performed in whole or in part, post-Closing. Notwithstanding the foregoing or anything to the contrary set forth herein, the aggregate amount of Seller’s liability shall have no obligation be limited to indemnify an amount equal to the Buyer Indemnified Persons Purchase Price in respect of Losses all Claims for indemnification in connection with, arising from the breach out of, or inaccuracy inwhich would not have occurred but for, a breach of the representations and warranties contained in Section 4.4, Section 4.13 and Section 4.15; and (ii) the amount of Seller’s liability for a breach of the representations and warranties contained in Section 4.19 shall be limited to, and determined by, a recalculation of the Closing Net Working Capital and the Adjustment Amount as if such Losses existed on the Closing Date (giving effect to any representation or warranty and all prior payments made pursuant to Section 10.1.1(a3.2(d) or Losses arising from in connection with the breach of Purchase Price adjustment and any covenant or agreement to be performed and all prior to Closing payments made pursuant to Section 10.1.1(b) this clause (ii)), and no Losses shall be recoverable until and unless the aggregate amount of all such Losses incurred or suffered by (for which no indemnification has been made and no adjustment was made in connection with the Buyer Indemnified Persons exceeds [**] Dollars ($[**]) (the “Threshold Amount”), in which case the Seller shall indemnify the Buyer Indemnified Persons or all such Losses, including the Threshold Amount, and not only to the extent such Losses exceed the Threshold Amount, and the Seller’s aggregate Liability in respect of Indemnification Claims arising from the breach of, or inaccuracy in, any representation or warranty Purchase Price adjustment pursuant to Section 10.1.1(a3.2(d)) and Indemnification Claims brought after exceeds on a cumulative basis the Closing arising from Adjustment Floor (as increased or reduced by any payment made in connection with the breach of any covenant or agreement to be performed prior to the Closing Purchase Price adjustment pursuant to Section 10.1.1(b3.2(d) shall not exceed [**] Dollars and the aggregate amount of all prior payments made pursuant to this clause ($[**]) (the “Indemnity Cap”ii).
(b) Notwithstanding anything to the contrary in Section 10.1.2(a), and then Seller’s indemnification liability shall only be the monetary limitations in this Section 10.1.2 shall not apply amount of the excess of such Losses over the Adjustment Floor (as adjusted as described above). It is understood and agreed that the purpose of the foregoing clause (ii) is to Indemnification Claims pursuant to Sections 10.1.1(a) in respect treat any Losses resulting from a breach of breaches of, or inaccuracies in, the representations and warranties set forth contained in Sections 3.1 (OrganizationSection 4.19 as if such Losses existed on the Closing Date and were included in the calculation of the Closing Net Working Capital in determining the Adjustment Amount and any required payments under Section 3.2(d), 3.2 and to require any payments that would have been required to be made in connection with the Purchase Price adjustment under Section 3.2(d) if such Losses existed on the Closing Date (Capital Structure)and such payments hereunder shall equal, 3.3 (Power and Authorization)in no event exceed, 3.4(ethe amount that would have been required to be paid under Section 3.2(d) (Noncontravention of Organizational Documents), 3.11 (Environmental Matters) 3.12 (No Brokers), 3.13 (Taxes) 4.2 (Power and Authorization) 4.4(e) (Noncontravention of Organizational Documents) and 4.6 (No Brokers) (said Sections 3.1, 3.2, 3.3, 3.4(e), 3.11, 3.12, 3.13, 4.2, 4.4(e) and 4.6 being hereinafter referred to collectively as in connection with the “Fundamental Representations and Warranties”Purchase Price adjustment if such Losses existed on the Closing Date).
(c) Notwithstanding anything to the contrary in Section 10.1.2(a) and Section 10.1.2(b) the Sellers aggregate Liability in respect of Indemnification Claims arising from the breach of or inaccuracy in the representations or warranties set forth in Section 3.5.1 (Litigation) and Section 3.8.1(a) (Contractual Obligations of the Company) pursuant to Section 10.1.1(a), together with the Seller’s aggregate Liability for Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) and Indemnification Claims arising from the breach of, or inaccuracy in, any other representation or warranty pursuant to Section 10.1.1(a), other than in respect of the Fundamental Representations and Warranties shall not exceed [**] Dollars ($[**]) (the “Special Indemnity Cap”).
(d) Notwithstanding anything to the contrary in this Agreement, Indemnification Claims pursuant to Sections 10.1.1(c), 10.1.1(d) or 10.1.1(c), or for Losses arising from the breach of any covenant or agreement to be performed by Seller after the Closing pursuant to Section 10.1.1(b) other than any breach of Sellers obligations under Section 3 of the Transition Services Agreement (i.e., Consulting Services) are not subject to any of the monetary limitations in this Section 10.1.2, including the Threshold Amount, the Indemnity Cap and the Special Indemnity Cap.
Appears in 1 contract
Sources: Purchase Agreement (Telecommunication Systems Inc /Fa/)
Monetary Limitations. (a) The Seller shall Spectrum will have no obligation to indemnify the Buyer Purchaser Indemnified Persons in respect of Losses arising from the breach of, or inaccuracy in, any representation or warranty pursuant to Section 10.1.1(a14.1.1(a) or Losses arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b14.1.1(b) with respect to claims brought after the Closing, unless the aggregate amount of all such Losses incurred or suffered by the Buyer Purchaser Indemnified Persons exceeds [***] Dollars ($the “Indemnity Basket”) (at which point Spectrum will indemnify the Purchaser Indemnified Persons for all such Losses exceeding [***]) (). Notwithstanding the “Threshold Amount”)foregoing, in which case the Seller shall indemnify the Buyer Indemnified Persons or all such Losses, including the Threshold Amount, and not only to the extent such Losses exceed the Threshold Amount, and the SellerSpectrum’s aggregate Liability liability in respect of Indemnification Claims claims for indemnification arising from the breach of, or inaccuracy in, any representation or warranty contained in Sections 7.10, 7.12, 7.14, 7.15 and 7.16 shall not exceed the amount recovered by Spectrum from Bayer under Bayer’s indemnification obligations in the Bayer Agreement. Further, Spectrum’s aggregate liability in respect of claims for indemnification arising from the breach of, or inaccuracy in, any representation or warranty pursuant to Section 10.1.1(a14.1.1(a) and Indemnification Claims claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing by Spectrum hereunder pursuant to Section 10.1.1(b) shall 14.1.1(b), will not exceed [***] Dollars ($[**]) (such amount, the “Maximum Indemnity Cap”).
(b) Notwithstanding anything to the contrary in Section 10.1.2(a), the . The monetary limitations contained in this Section 10.1.2 shall 14.1.2 will not apply to Indemnification Claims (1) claims for indemnification pursuant to Sections 10.1.1(aSection 14.1.1(a) in respect of breaches of, or inaccuracies in, the representations and warranties set forth in the following Sections 3.1 of this Agreement: 7.1 (Organization), 3.2 (Capital Structure), 3.3 7.2 (Power and Authorization), 3.4(e7.4(e) (Noncontravention Breach of Organizational Documents), 3.11 7.10 (Environmental Matters) 3.12 (No BrokersAssets), 3.13 7.14 (Taxes) 4.2 (Power and Authorization) 4.4(e) (Noncontravention of Organizational Documents) and 4.6 Intellectual Property), 7.23 (No Brokers) or 7.26 (said Sections 3.1, 3.2, 3.3, 3.4(eTax Matters), 3.11, 3.12, 3.13, 4.2, 4.4(e(2) and 4.6 being hereinafter referred to collectively as the “Fundamental Representations and Warranties”).
(c) Notwithstanding anything to the contrary in Section 10.1.2(a) and Section 10.1.2(b) the Sellers aggregate Liability in respect of Indemnification Claims arising from the breach of or inaccuracy in the representations or warranties set forth in Section 3.5.1 (Litigation) and Section 3.8.1(a) (Contractual Obligations of the Company) claims for indemnification pursuant to Section 10.1.1(a), together with the Seller’s aggregate Liability Article 15 (Tax Matters) or (3) claims based upon fraud or intentional misrepresentation. Claims for Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing indemnification pursuant to Section 10.1.1(b) and Indemnification Claims arising from the breach of, or inaccuracy in, any other representation or warranty pursuant to provision of Section 10.1.1(a), other than in respect of the Fundamental Representations and Warranties shall not exceed [**] Dollars ($[**]) (the “Special Indemnity Cap”).
(d) Notwithstanding anything to the contrary in this Agreement, Indemnification Claims pursuant to Sections 10.1.1(c), 10.1.1(d) or 10.1.1(c), or for Losses arising from the breach of any covenant or agreement to be performed by Seller after the Closing pursuant to Section 10.1.1(b) other than any breach of Sellers obligations under Section 3 of the Transition Services Agreement (i.e., Consulting Services) 14.1.1 are not subject to any of the monetary limitations set forth in this Section 10.1.2, including the Threshold Amount, the Indemnity Cap and the Special Indemnity Cap14.1.2.
Appears in 1 contract
Sources: License and Asset Purchase Agreement (Spectrum Pharmaceuticals Inc)
Monetary Limitations. (a) The Seller shall Sellers will have no obligation to indemnify the Buyer Indemnified Persons pursuant to Section 10.01(a)(ii) and Section 10.01(a)(v) in respect of Losses arising from the breach of, or inaccuracy in, any representation representation, warranty or warranty pursuant to Section 10.1.1(a) or Losses arising from the breach of any covenant or agreement to be performed prior to Closing pursuant to Section 10.1.1(b) statement described therein unless and until the aggregate amount of all such Losses incurred or suffered by the Buyer Indemnified Persons exceeds [**] Four Hundred Fifty Thousand Dollars ($[**]CAD$450,000) (the “Threshold Basket Amount”), in which case the Seller shall indemnify the Buyer Indemnified Persons or shall be entitled to indemnification for all such Losses, including Losses in excess of the Threshold Amount, and not only to the extent such Losses exceed the Threshold Basket Amount, and the Seller’s Sellers’ aggregate Liability liability in respect of Indemnification Claims arising from the breach of, or inaccuracy in, any representation or warranty claims for indemnification pursuant to Section 10.1.1(a10.01(a)(ii) and Indemnification Claims brought after Section 10.01(a)(v) will not exceed an amount equal to twenty percent (20%) of the Closing arising from the breach Adjusted Purchase Price and each Sellers’ aggregate liability in respect of any covenant or agreement to be performed prior to the Closing claims for indemnification pursuant to Section 10.1.1(b10.01(a)(ii) shall and Section 10.01(a)(v) will not exceed [**] Dollars the lesser of ($[**]i) such Seller’s Pro Rata Percentage of the Losses being claimed and (ii) such Seller’s Pro Rata Percentage of an amount equal to twenty percent (20%) of the “Indemnity Cap”).
(b) Notwithstanding anything to Adjusted Purchase Price; provided, that the contrary in Section 10.1.2(a), the monetary foregoing limitations in this Section 10.1.2 shall will not apply to Indemnification Claims claims for indemnification pursuant to Sections 10.1.1(aSection 10.01(a)(ii) and Section 10.01(a)(v) in respect of breaches of, or inaccuracies in, the representations and warranties set forth in Sections 3.1 Section 3.01 (Organization), 3.2 (Capital Structure), 3.3 Section 3.02 (Power and Authorization), 3.4(eSection 3.04(b) (Noncontravention Breach of Organizational Documents), 3.11 Section 3.05 (Environmental MattersCapitalization), Section 3.07(l) 3.12 (Absence of Certain Developments Related to Taxes), Section 3.08 (Debt), Section 3.23 (No Brokers), 3.13 Section 3.26 (Taxes) 4.2 Pre-Closing Transactions), Section 4.01 (Organization), Section 4.02 (Power and Authorization) 4.4(e), Section 4.04(b) (Noncontravention Breach of Organizational Documents), Section 4.05 (Title) and 4.6 Section 4.06 (No Brokers) (said Sections 3.1or as such representations and warranties are repeated or confirmed in the certificate delivered at Closing pursuant to Section 7.04(b)) (collectively, 3.2, 3.3, 3.4(e), 3.11, 3.12, 3.13, 4.2, 4.4(ethe “Seller Fundamental Representations”) and 4.6 being hereinafter referred to collectively as the “Fundamental Representations and Warranties”).
(c) Notwithstanding anything to the contrary in Section 10.1.2(a) and Section 10.1.2(b) the Sellers aggregate Liability in respect of Indemnification Claims arising from the breach of or inaccuracy in the representations or warranties those set forth in Section 3.5.1 3.14 (Litigation) and Section 3.8.1(a) (Contractual Obligations of the Company) Tax Matters). Claims for indemnification pursuant to Section 10.1.1(a), together with the Seller’s aggregate Liability for Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) and Indemnification Claims arising from the breach of, or inaccuracy in, any other representation or warranty pursuant to provision of Section 10.1.1(a), other than in respect of the Fundamental Representations and Warranties shall not exceed [**] Dollars ($[**]) (the “Special Indemnity Cap”).
(d) Notwithstanding anything to the contrary in this Agreement, Indemnification Claims pursuant to Sections 10.1.1(c), 10.1.1(d) or 10.1.1(c), or for Losses arising from the breach of any covenant or agreement to be performed by Seller after the Closing pursuant to Section 10.1.1(b) other than any breach of Sellers obligations under Section 3 of the Transition Services Agreement (i.e., Consulting Services10.01(a) are not subject to any of the monetary limitations set forth in this Section 10.1.2, including the Threshold Amount, the Indemnity Cap and the Special Indemnity Cap10.01(b).
Appears in 1 contract
Monetary Limitations. (a) The Each Seller shall will have no obligation to indemnify the Buyer Indemnified Persons pursuant to Section 7.1.1(a) in respect of Losses arising from the a breach of, or inaccuracy in, any representation or warranty pursuant to Section 10.1.1(a) or Losses arising from the breach of any covenant or agreement to be performed prior to Closing pursuant to Section 10.1.1(b) unless the aggregate amount of all such Losses incurred or suffered by plus the aggregate amount of all Buyer APA R&W Losses (collectively, “Standard Buyer R&W Losses”) exceeds USD $50,000 (the “Deductible Amount”) (it being understood and agreed that if Standard Buyer R&W Losses exceed the Deductible Amount, then the Buyer Indemnified Persons exceeds [**] Dollars ($[**]) (will be indemnified for all Standard Buyer R&W Losses in excess of the “Threshold Amount”), in which case the Seller shall indemnify the Buyer Indemnified Persons or all such Losses, including the Threshold Amount, and not only to the extent such Losses exceed the Threshold Amount, and the Seller’s aggregate Liability in respect of Indemnification Claims arising from the breach of, or inaccuracy in, any representation or warranty pursuant to Section 10.1.1(a) and Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) shall not exceed [**] Dollars ($[**]Deductible Amount as set forth herein) (the “Indemnity CapBasket”).
(b) Notwithstanding anything to ; provided, however, that the contrary in Section 10.1.2(a), the monetary limitations in this Section 10.1.2 shall Indemnity Basket will not apply to Indemnification Claims (i) claims for indemnification pursuant to Sections 10.1.1(aSection 7.1.1(a) in respect of breaches of, or inaccuracies in, the representations and warranties set forth in Sections 3.1 (Organization), 3.2 (Capital Structure), 3.3 (Power and Authorization), 3.4(e3.4(f) (Noncontravention Breach of Organizational Documents), 3.11 3.8 (Environmental Absence of Undisclosed Liabilities), 3.11.1 (Title to Assets), 3.15 (Tax Matters) 3.12 ), 3.16 (Employee Benefit Plans), 3.21.3 (Employees), 3.27 (No Brokers), 3.13 4.1 (Taxes) Title to Shares), 4.2 (Power and AuthorizationAbsence of Assets), 4.3 (Absence of Liabilities), or 4.4 (No Outstanding Obligations) 4.4(eof this Agreement (collectively, “Seller Fundamental Representations”) or (ii) claims based upon intentional or criminal conduct or fraud. Claims for indemnification pursuant to Section 7.1.1(a) (Noncontravention of Organizational Documents) and 4.6 (No Brokers) (said Sections 3.1, 3.2, 3.3, 3.4(e), 3.11, 3.12, 3.13, 4.2, 4.4(e) and 4.6 being hereinafter referred to collectively as the “Fundamental Representations and Warranties”).
(c) Notwithstanding anything to the contrary in Section 10.1.2(a) and Section 10.1.2(b) the Sellers aggregate Liability other than claims for indemnification in respect of Indemnification Claims arising from breaches of, or inaccuracies in, Seller Fundamental Representations or claims based upon intentional or criminal conduct or fraud) will not exceed USD $2,050,000, with USD $50,000 payable by the breach of or inaccuracy Sellers directly in the representations or warranties set forth in Section 3.5.1 (Litigation) and Section 3.8.1(a) (Contractual Obligations of the Company) manner required pursuant to Section 10.1.1(a), together with 7.7.1 and the Seller’s aggregate Liability for Indemnification Claims brought after the Closing arising balance payable exclusively from the breach of any covenant or agreement to be performed prior to the Closing R&W Insurance Policy. Claims for indemnification pursuant to Section 10.1.1(b7.1.1(a) and Indemnification Claims arising from the breach in respect of breaches of, or inaccuracy inaccuracies in, any other representation Fundamental Representations or warranty claims based upon intentional, criminal conduct or fraud and claims for indemnification pursuant to Section 10.1.1(aany provision of Sections 7.1.1(b), other than in respect of the Fundamental Representations 7.1.1(c) and Warranties shall not exceed [**] Dollars ($[**]) (the “Special Indemnity Cap”).
(d) Notwithstanding anything to the contrary in this Agreement, Indemnification Claims pursuant to Sections 10.1.1(c), 10.1.1(d) or 10.1.1(c), or for Losses arising from the breach of any covenant or agreement to be performed by Seller after the Closing pursuant to Section 10.1.1(b) other than any breach of Sellers obligations under Section 3 of the Transition Services Agreement (i.e., Consulting Services7.1.1(d) are not subject to any of the monetary limitations set forth in this Section 10.1.2, including the Threshold Amount, the Indemnity Cap and the Special Indemnity Cap7.1.2.
Appears in 1 contract
Monetary Limitations. (a) The Seller shall have no obligation Notwithstanding anything to indemnify the contrary in this Agreement (but subject to the exception for fraud in Section 8.1.2(c) on the terms and subject to the conditions in Section 8.1.2(c)), (i) a Buyer Indemnified Persons in respect of Losses arising from the breach of, or inaccuracy in, any representation or warranty Person shall not be indemnified pursuant to Section 10.1.1(a8.1.1(a) (other than based on a breach or Losses arising from inaccuracy in the breach representations and warranties set forth in Sections 3.1 (Organization), 3.2 (Power and Authorization), 3.4(e) (Breach of any covenant or agreement to be performed prior to Closing Organizational Documents), 3.5.1, 3.5.2, 3.5.3 (Capitalization), 3.15 (Tax), 3.25 (No Brokers), 4.1 * Omitted information is the subject of a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934 and has been filed separately with the Securities and Exchange Commission. (Organization), 4.2 (Power and Authorization), 4.4(d) (No Breach of Organizational Documents), 4.5 (Title) and 4.6 (No Brokers), with respect to which the limitations in this clause (i) of Section 10.1.1(b8.1.2(a) unless shall not apply) until the aggregate amount of all such Losses incurred or suffered by the Buyer Indemnified Persons exceeds [**] Dollars exceeds, on a cumulative basis, the Threshold after which indemnification will be available for all Losses, not only the Losses that exceed the Threshold, ($[**]ii) (the “Threshold Amount”), in which case the Seller shall indemnify the a Buyer Indemnified Persons or all such Losses, including the Threshold Amount, and Person shall not only to the extent such Losses exceed the Threshold Amount, and the Seller’s aggregate Liability in respect of Indemnification Claims arising from the breach of, or inaccuracy in, any representation or warranty be indemnified pursuant to Section 10.1.1(a) and Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) shall not exceed [**] Dollars ($[**]8.1.1(a) (other than based on a breach or inaccuracy in the “Indemnity Cap”).
(b) Notwithstanding anything to the contrary in Section 10.1.2(a), the monetary limitations in this Section 10.1.2 shall not apply to Indemnification Claims pursuant to Sections 10.1.1(a) in respect of breaches of, or inaccuracies in, representations and warranties set forth in Sections 3.1 3.15 (Organization), 3.2 (Capital Structure), 3.3 (Power Tax) and Authorization), 3.4(e4.4(d) (Noncontravention No Breach of Organizational Documents), 3.11 (Environmental Matters) 3.12 (No Brokers), 3.13 with respect to which the limitations in this clause (Taxesii) 4.2 of Section 8.1.2(a) shall not apply) for any Materiality Strip Losses until the aggregate amount of all Materiality Strip Losses incurred or suffered by the Buyer Indemnified Persons exceeds, on a cumulative basis, [*] (Power and Authorization) 4.4(ethe “Materiality Strip Deductible”) (Noncontravention after which the Buyer Indemnified Person shall recover only Losses in excess of Organizational Documentsthe Materiality Strip Deductible) and 4.6 (No Brokersiii) the aggregate amount of Losses for which the Buyer Indemnified Persons may be indemnified pursuant to this Article 8 shall not exceed the aggregate amounts [*]. For example, (A) if the Buyer Indemnified Persons incur [*] of Losses for which they are entitled to indemnification pursuant to Section 8.1.1(a), and [*] of such Losses are [*], then the Buyer Indemnified Persons would be entitled to indemnification pursuant to Section 8.1.1(a) for [*] and (B) if the Buyer Indemnified Persons then later incur an additional [*] of Losses for which they are entitled to indemnification pursuant to Section 8.1.1(a), and [*] of such Losses [*], then the Buyer Indemnified Persons would be entitled to indemnification pursuant to Section 8.1.1(a) for an additional [*].
(b) Subject to the exception for fraud in Section 8.1.2(c) on the terms and subject to the conditions in Section 8.1.2(c) (said Sections 3.1i) the rights of the Buyer Indemnified Persons under this Article 8 shall be the sole and exclusive remedy of the Buyer Indemnified Persons and their respective Affiliates with respect to claims under, 3.2or otherwise relating to the this Agreement and the Contemplated Transactions and (ii) the Escrow Account shall be the sole and exclusive means for the Buyer Indemnified Persons to collect any Losses for which they are entitled to indemnification under this Article 8. In the case of fraud, 3.3any Buyer Indemnified Person shall be entitled, 3.4(eat its option, to seek recourse against (without duplication) (i) the Escrow Account, (ii) the Equityholder or Equityholders, as applicable, in each case on the terms and subject to the conditions provided in Section 8.1.2(c), 3.11or (iii) both the Escrow Account and the Equityholder or Equityholders, 3.12as applicable, 3.13, 4.2, 4.4(e) in each case on the terms and 4.6 being hereinafter referred subject to collectively as the “Fundamental Representations and Warranties”conditions provided in Section 8.1.2(c).
(c) Notwithstanding anything to the contrary in Section 10.1.2(a) and Section 10.1.2(b) the Sellers aggregate Liability in respect of Indemnification Claims arising from the breach of or inaccuracy in the representations or warranties The limitations set forth in Section 3.5.1 (LitigationSections 8.1.2(a), 8.1.2(b) and Section 3.8.1(a8.3 shall not apply (i) (Contractual Obligations in the case of fraud committed by the Company) pursuant , to Section 10.1.1(a), together any claim by a Buyer Indemnified Person with respect to such fraud made against the Seller’s aggregate Liability for Indemnification Claims brought after the Closing arising from the breach of any covenant Equityholders on or agreement to be performed prior to the Closing Fraud Survival Date and (ii) in the case of fraud committed by one or more Equityholders, to any claim by a Buyer Indemnified Person with respect to such fraud made against such Equityholders (but not any other Equityholders) on or prior to the Fraud Survival Date; provided that, in the case of clause (i), the Liability of the Equityholders for such fraud shall be several and not joint; and provided further that, in the case of both clauses (i) and (ii), in no event shall any Equityholder be liable to the Buyer Indemnified Persons for an amount in excess of the aggregate Initial Consideration, Series Bl Call Purchase Price set forth on Exhibit D (if any), Contingent Consideration (if any) and payments pursuant to Section 10.1.1(bthe Carve Out Plan (if any) and Indemnification Claims arising from the breach of, or inaccuracy in, any other representation or warranty actually paid to such Equityholder pursuant to Section 10.1.1(a), other than in respect this Agreement or the Carve Out Plan. * Omitted information is the subject of a request for confidential treatment pursuant to Rule 24b-2 under the Fundamental Representations Securities Exchange Act of 1934 and Warranties shall not exceed [**] Dollars ($[**]) (has been filed separately with the “Special Indemnity Cap”)Securities and Exchange Commission.
(d) Notwithstanding anything None of Buyer or any of its Affiliates (including the Company) may set off against any payment required to be made by Buyer or any of its Affiliates (including the Company) to the contrary in this Agreement, Indemnification Claims Equityholders or to a Company Indemnified Party pursuant to Sections 10.1.1(c), 10.1.1(d) this Agreement any amounts owed or 10.1.1(c), or for Losses arising from the breach of any covenant or agreement claimed to be performed owed to Buyer or any of its Affiliates (including the Company) by Seller after the Closing any Equityholder or Company Indemnified Party (including, in either case, pursuant to Section 10.1.1(b) other than any breach this Article 8). For the avoidance of Sellers obligations under Section 3 of doubt, the Transition Services Agreement (i.e., Consulting Services) are not subject to any of the monetary limitations in this Section 10.1.28.1.2(d) shall not limit the express rights of the Buyer to deposit in the Escrow Account a portion of Milestone Payments pursuant to, including and subject to the Threshold Amountlimitations set forth in, the Indemnity Cap and the Special Indemnity CapSection 8.1.3.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Alexion Pharmaceuticals Inc)
Monetary Limitations. Subject to the last sentence of this Section 8.7, Seller shall not be required to indemnify Buyer Indemnitees, and shall not have any Liability under Section 8.2(a), until the aggregate amount of all Losses under Section 8.2(a) exceeds $200,000 (the "MINIMUM LOSS"), and then only to the extent such aggregate Losses exceed the Minimum Loss. Subject to the following sentence, the aggregate amount of each of Seller's liability for Losses under Section 8.2(a) and Buyer's and Parent's aggregate liability for Losses under Section 8.2(b) shall be limited in each case to an amount equal to 40% of the Purchase Price. The limitations set forth in this Section 8.7 will not apply to any Claims for indemnification in connection with, arising out of, or which would not have occurred but for:
(a) The Seller a breach of the representations and warranties contained in Section 4.1, Section 4.2, Section 4.3, Section 4.5, Section 4.8, Section 4.14, Section 4.15, Section 4.19, Section 4.23, Section 4.25(a) (but excluding clause (ii) thereof), Section 4.25(b), Section 4.25(c), Section 4.29, Section 5.1, Section 5.2, Section 5.4 and Section 5.6;
(b) fraud; or
(c) Section 8.2(c), (d), (e), (f) or (g) or Section 8.3(c) or (d); and
(d) covenants to be performed in whole or in part, post-Closing. Notwithstanding the foregoing or anything to the contrary set forth herein, the aggregate amount of Seller's liability shall have no obligation be limited to indemnify an amount equal to the Buyer Indemnified Persons Purchase Price in respect of Losses all Claims for indemnification in connection with, arising from the breach out of, or inaccuracy inwhich would not have occurred but for, a breach of the representations and warranties contained in Section 4.4, Section 4.13 and Section 4.15; and (ii) the amount of Seller's liability for a breach of the representations and warranties contained in Section 4.19 shall be limited to, and determined by, a recalculation of the Closing Net Working Capital and the Adjustment Amount as if such Losses existed on the Closing Date (giving effect to any representation or warranty and all prior payments made pursuant to Section 10.1.1(a3.2(d) or Losses arising from in connection with the breach of Purchase Price adjustment and any covenant or agreement to be performed and all prior to Closing payments made pursuant to Section 10.1.1(b) this clause (ii)), and no Losses shall be recoverable until and unless the aggregate amount of all such Losses incurred or suffered by (for which no indemnification has been made and no adjustment was made in connection with the Buyer Indemnified Persons exceeds [**] Dollars ($[**]) (the “Threshold Amount”), in which case the Seller shall indemnify the Buyer Indemnified Persons or all such Losses, including the Threshold Amount, and not only to the extent such Losses exceed the Threshold Amount, and the Seller’s aggregate Liability in respect of Indemnification Claims arising from the breach of, or inaccuracy in, any representation or warranty Purchase Price adjustment pursuant to Section 10.1.1(a3.2(d)) and Indemnification Claims brought after exceeds on a cumulative basis the Closing arising from Adjustment Floor (as increased or reduced by any payment made in connection with the breach of any covenant or agreement to be performed prior to the Closing Purchase Price adjustment pursuant to Section 10.1.1(b3.2(d) shall not exceed [**] Dollars and the aggregate amount of all prior payments made pursuant to this clause ($[**]) (the “Indemnity Cap”ii).
(b) Notwithstanding anything to the contrary in Section 10.1.2(a), and then Seller's indemnification liability shall only be the monetary limitations in this Section 10.1.2 shall not apply amount of the excess of such Losses over the Adjustment Floor (as adjusted as described above). It is understood and agreed that the purpose of the foregoing clause (ii) is to Indemnification Claims pursuant to Sections 10.1.1(a) in respect treat any Losses resulting from a breach of breaches of, or inaccuracies in, the representations and warranties set forth contained in Sections 3.1 (OrganizationSection 4.19 as if such Losses existed on the Closing Date and were included in the calculation of the Closing Net Working Capital in determining the Adjustment Amount and any required payments under Section 3.2(d), 3.2 and to require any payments that would have been required to be made in connection with the Purchase Price adjustment under Section 3.2(d) if such Losses existed on the Closing Date (Capital Structure)and such payments hereunder shall equal, 3.3 (Power and Authorization)in no event exceed, 3.4(ethe amount that would have been required to be paid under Section 3.2(d) (Noncontravention of Organizational Documents), 3.11 (Environmental Matters) 3.12 (No Brokers), 3.13 (Taxes) 4.2 (Power and Authorization) 4.4(e) (Noncontravention of Organizational Documents) and 4.6 (No Brokers) (said Sections 3.1, 3.2, 3.3, 3.4(e), 3.11, 3.12, 3.13, 4.2, 4.4(e) and 4.6 being hereinafter referred to collectively as in connection with the “Fundamental Representations and Warranties”Purchase Price adjustment if such Losses existed on the Closing Date).
(c) Notwithstanding anything to the contrary in Section 10.1.2(a) and Section 10.1.2(b) the Sellers aggregate Liability in respect of Indemnification Claims arising from the breach of or inaccuracy in the representations or warranties set forth in Section 3.5.1 (Litigation) and Section 3.8.1(a) (Contractual Obligations of the Company) pursuant to Section 10.1.1(a), together with the Seller’s aggregate Liability for Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) and Indemnification Claims arising from the breach of, or inaccuracy in, any other representation or warranty pursuant to Section 10.1.1(a), other than in respect of the Fundamental Representations and Warranties shall not exceed [**] Dollars ($[**]) (the “Special Indemnity Cap”).
(d) Notwithstanding anything to the contrary in this Agreement, Indemnification Claims pursuant to Sections 10.1.1(c), 10.1.1(d) or 10.1.1(c), or for Losses arising from the breach of any covenant or agreement to be performed by Seller after the Closing pursuant to Section 10.1.1(b) other than any breach of Sellers obligations under Section 3 of the Transition Services Agreement (i.e., Consulting Services) are not subject to any of the monetary limitations in this Section 10.1.2, including the Threshold Amount, the Indemnity Cap and the Special Indemnity Cap.
Appears in 1 contract
Monetary Limitations. (a) The Seller shall Securityholders will have no obligation to indemnify the Buyer Parent Indemnified Persons pursuant to Section 9.01(a)(i) in respect of Losses arising from the breach of, or inaccuracy in, any representation representation, warranty or warranty pursuant to Section 10.1.1(a) or Losses arising from the breach of any covenant or agreement to be performed prior to Closing pursuant to Section 10.1.1(b) statement described therein unless and until the aggregate amount of all such Losses incurred or suffered by the Buyer Parent Indemnified Persons exceeds [**] Dollars $300,000 ($[**]) (at which point the “Threshold Amount”), in which case the Seller shall Securityholders will indemnify the Buyer Parent Indemnified Persons or for all such Losses, including the Threshold Amount, and not only Losses incurred or suffered pursuant to the extent such Losses exceed the Threshold AmountSection 9.1(a)(i) in excess of $300,000), and the Seller’s Securityholders’ aggregate Liability liability in respect of Indemnification Claims arising from claims for indemnification pursuant to Sections 9.01(a)(i), 9.01(a)(ii), 9.01(a)(iv) and Section 9.01(a)(v) will be limited to the breach ofEscrow Amount as provided in Section 9.05(b); provided, or inaccuracy in, any representation or warranty that:
(i) The foregoing limitations will not apply to claims for indemnification pursuant to Section 10.1.1(a) and Indemnification Claims brought after the Closing arising from the breach of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) shall not exceed [**] Dollars ($[**]) (the “Indemnity Cap”).
(b) Notwithstanding anything to the contrary in Section 10.1.2(a), the monetary limitations in this Section 10.1.2 shall not apply to Indemnification Claims pursuant to Sections 10.1.1(a9.01(a)(i) in respect of breaches of, or inaccuracies in, the representations and warranties set forth in Sections 3.1 4.01 (Organization), 3.2 (Capital Structure), 3.3 4.02 (Power and Authorization), 3.4(e4.04(b)(iii) (Noncontravention of Organizational DocumentsNoncontravention), 3.11 4.05 (Environmental Matters) 3.12 Capitalization of Company), and 4.24 (No Brokers);
(ii) Claims for indemnification under Section 9.1(a)(ii), 3.13 (Taxes) 4.2 (Power and Authorization) 4.4(e) (Noncontravention of Organizational DocumentsSection 9.01(a)(iv) and 4.6 Section 9.01(a)(v) will not be subject to the $300,000 deductible referred to above but will be subject to the overall limitation set forth in Section 9.05(b); and
(No Brokersiii) The foregoing limitations will not apply to claims based upon fraud or intentional misrepresentation. Claims for indemnification pursuant to Section 9.01(a)(i) in respect of any breaches of Section 4.13 (said Sections 3.1Tax Matters) and claims for indemnification under Article X (collectively, 3.2, 3.3, 3.4(e“Tax Claims”) and claims for indemnification pursuant to any provision of Section 9.01(a)(iii) are not subject to the monetary limitations set forth in this Section 9.01(b). In addition to the limitations provided in Section 9.05(b), 3.11the aggregate liability of any Securityholder in respect of claims for indemnification pursuant to Section 9.01(a) shall not exceed the total Merger Consideration and/or Option Payments received by such Securityholder; provided, 3.12, 3.13, 4.2, 4.4(e) that the foregoing limitation will not apply to claims based upon fraud or intentional misrepresentation and 4.6 being hereinafter referred will not apply to collectively as the “Fundamental Representations and Warranties”any claim against such Securityholder pursuant to Section 9.01(a)(iii).
(c) . Notwithstanding anything to the contrary in Section 10.1.2(a) and Section 10.1.2(b) contained herein, other than with respect to claims based on the Sellers aggregate Liability in respect fraud or intentional misrepresentation of Indemnification Claims arising from the breach of such Securityholder or inaccuracy in the representations or warranties set forth in Section 3.5.1 (Litigation) and Section 3.8.1(a) (Contractual Obligations of the Company) a claim against such Securityholder pursuant to Section 10.1.1(a)9.01(a)(iii) and Tax Claims, together with the Seller’s aggregate Liability no Securityholder shall be liable for Indemnification Claims brought after the Closing arising from the breach more than its Pro Rata Escrow Percentage of any covenant or agreement to be performed prior to the Closing pursuant to Section 10.1.1(b) and Indemnification Claims arising from the breach of, or inaccuracy in, any other representation or warranty pursuant to Section 10.1.1(a), other than in respect of the Fundamental Representations and Warranties shall not exceed [**] Dollars ($[**]) (the “Special Indemnity Cap”).
(d) Notwithstanding anything to the contrary in this Agreement, Indemnification Claims pursuant to Sections 10.1.1(c), 10.1.1(d) or 10.1.1(c), or for Losses arising from the breach of any covenant or agreement to be performed by Seller after the Closing pursuant to Section 10.1.1(b) other than any breach of Sellers obligations under Section 3 of the Transition Services Agreement (i.e., Consulting Services) are not Loss subject to indemnification under
Section 9.01 (a). With respect to any of Tax Claims not fully covered by the monetary limitations in this Section 10.1.2, including the Threshold Escrow Amount, each Securityholder will be liable for its Pro Rata Proceeds Percentage of such Tax Claims not fully covered by the Indemnity Cap and the Special Indemnity CapEscrow Amount.
Appears in 1 contract