Common use of Indemnification Principles Clause in Contracts

Indemnification Principles. (a) Notwithstanding any other provision in this Agreement to the contrary, neither Seller nor Buyer shall be liable to, or indemnify, the Buyer Indemnified Parties or Seller Indemnified Parties, as applicable, for any Losses: (i) that are punitive, special, consequential, incidental, exemplary or indirect damages, other than (x) any such damages claimed by a Party against another Party to this Agreement to the extent they were: (A) a natural, probable and reasonably foreseeable result of a breach by the breaching Party, (B) within the reasonable contemplation of the Parties, and (C) can be proven with reasonable certainty, and (y) to the extent actually paid to a non-Affiliated third party pursuant to a final and non-appealable judgment or arbitral decision issued by a court of competent jurisdiction, or (ii) with respect to any amount that was taken into account in the final determination of Acquired Companies Cash, Net Working Capital, Unpaid Transaction Expenses or Acquired Companies Indebtedness pursuant to Section 2.6. (b) For purposes of this Article VII, (i) for determining the breach or inaccuracy of a representation or warranty set forth in Article III other than the Seller Fundamental Representations, Section 3.7 (Financial Information), Section 3.8 (Accounting Records; Internal Controls), Section 3.13(d) (Healthcare Regulatory Compliance), Section 3.17(b) (Sufficiency of Assets) and Section 3.21 (Material Contracts) (collectively, the “Specified Representations”), references to “materiality”, “Seller Material Adverse Effect” or similar materiality qualifications therein shall be disregarded, and (ii) for calculating the amount of Losses incurred out of or relating to any breach of, a representation, warranty, covenant or agreement set forth in this Agreement, references to “materiality”, “Seller Material Adverse Effect”, “Buyer Material Adverse Effect” or similar materiality qualifications therein shall be disregarded; provided, however, that in no event shall dollar thresholds referred to in this Agreement be disregarded pursuant to the foregoing clause (ii); and provided, further, with respect to the foregoing clauses (i) and (ii), in no event shall “Material Contract” be read to mean “Contract”. (c) The Indemnified Parties shall act in good faith and in a commercially reasonable manner to mitigate any Losses upon and after becoming aware of any event which could reasonably be expected to give rise to Losses. (d) No claim for indemnification shall be made with respect to Losses to the extent there has been a corresponding reduction or reserve related thereto in the calculation of the Final Purchase Price. (e) The amount of any and all indemnification payments in respect of Losses under this Agreement shall be determined net of the proceeds actually received by an Indemnified Party under any insurance policies or pursuant to any claim, recovery, settlement or payment by or against any other collateral sources (such as contractual indemnities of any Person which are contained outside of this Agreement), in each case, net of costs or expenses incurred in connection with securing or obtaining such proceeds. (f) In calculating the amount of any Loss, the amount of such Loss shall be determined net of any Tax benefit actually realized in the taxable year of the Loss by the Indemnified Party (less reasonable expenses incurred to obtain such benefit) or in the next two succeeding years as a result of the incurrence or payment of any such Loss (including as a result of the facts, events or circumstances giving rise to such Loss); provided that, for the avoidance of doubt, this Section 7.4(f) shall not provide any Indemnifying Party the right to review any Indemnified Party’s Tax Returns. (g) The Indemnified Parties shall not be entitled to recover any Losses relating to any matter arising under one provision of this Agreement to the extent that such Indemnified Party had already recovered Losses with respect to such matter pursuant to any other provisions of this Agreement. (h) Seller (including any Representative of Seller) shall not have, and hereby waives, any right of contribution, indemnification or right of advancement from the Acquired Companies and Related Consolidated Entities (including any Representative thereof) with respect to any Loss claimed by a Buyer Indemnified Party, except as expressly provided in this Agreement, the other Transaction Documents or any Intercompany Contracts that survive the Closing pursuant to the terms hereof.