Liability Limits. Notwithstanding anything to the contrary set forth herein, no Purchaser Indemnified Party shall be indemnified by the Shareholder under this Article X for any Purchaser Losses (i) with respect to any claim unless such claim involves Purchaser Losses in excess of $75,000 (the “Single Claim Amount”) and (ii) unless and until the aggregate amount of such Purchaser Losses exceeds three-fourths of one percent (0.75%) of the Purchase Price (the “Deductible”), but only if such Purchaser Losses also meet the requirements of clause (i) of this Section 10.5(a), after which the Shareholder shall only be obligated for such aggregate Purchaser Losses in excess of the Deductible. (a) The total aggregate amount of the liability of the Shareholder for Purchaser Losses shall be limited to ten percent (10%) of the Purchase Price (the “Cap”). (b) Neither the Single Claim Amount nor the Deductible shall apply to any Purchaser Losses (i) pursuant to Section 10.1(b), Section 10.1(c), Section 10.1(d), Section 10.1(e) or Section 10.1(f), or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25. The Cap shall not apply to any Purchaser Losses (i) pursuant to Section 10.1(b), Section 10.1(c), or Section 10.1(d) or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25. (c) Payments by an Indemnifying Party pursuant to Section 10.1 or Section 10.2 in respect of any Purchaser Loss or Shareholder Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Indemnified Party (or the Company or any of its Subsidiaries) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses before seeking indemnification under this Agreement. (d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, exemplary, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple (except to the extent such types of damages constitute losses to a third party as a result of any claim).
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Compressco Partners, L.P.)
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein, no the Purchaser Indemnified Party Parties shall be indemnified by the Shareholder not make a claim for indemnification under this Article X Section 10.1(a)(i) or Section 10.1(b)(i) for any Purchaser Losses (i) with respect to any claim unless such claim involves Purchaser Losses in excess of $75,000 (the “Single Claim Amount”) and (ii) unless and until the aggregate amount of such Purchaser Losses exceeds three-fourths of one percent Three Hundred Thousand Dollars (0.75%$300,000) of the Purchase Price (the “Deductible”), but only if such in which event the Purchaser Losses also meet the requirements of clause (i) of this Section 10.5(a), after which the Shareholder shall only be obligated Indemnified Parties may claim indemnification for such aggregate all Purchaser Losses in excess of the Deductible.
, up to, but not to exceed a cap of Seven Million Five Hundred Thousand Dollars (a$7,500,000) The total aggregate amount of the liability of the Shareholder for Purchaser Losses shall be limited to ten percent (10%) of the Purchase Price (the “Standard Representations Cap”).
(b) Neither . Notwithstanding the Single Claim Amount nor the Deductible shall apply to any Purchaser Losses foregoing, (i) pursuant to Section 10.1(b), Section 10.1(c), Section 10.1(d), Section 10.1(e) or Section 10.1(f), or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25. The Cap the Deductible shall not apply to any Purchaser Losses (i) pursuant to Section 10.1(b), Section 10.1(c), arising out of or Section 10.1(d) or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1the Extended Representations; (ii) the Deductible shall not apply to any Purchaser Losses arising out of or related to a breach of the Fundamental Representations, Section 4.2and the Shareholders shall be liable for all Purchaser Losses with respect thereto, Section 4.3up to, Section 4.4but not to exceed a cap of Thirty Million Dollars ($30,000,000) (“the “Fundamental Representations Cap”), Section 4.14 and (iii) none of the Deductible, the Standard Representations Cap or Section 4.25the Fundamental Representations Cap shall apply to any Purchaser Losses arising out of or related to fraud or willful misconduct and the Shareholders shall be liable for all Purchaser Losses with respect thereto. For purposes of this Article X, each representation and warranty shall be read without reference to any materiality or Material Adverse Effect qualification contained therein.
(b) For purposes of this Article X, no Indemnified Party shall be entitled to recover punitive or exemplary damages; provided, that the foregoing shall not apply to Losses arising out of or related to fraud, willful misconduct or a Third-Party Claim, and the applicable Indemnifying Party shall be liable for all Losses with respect thereto.
(c) Payments by an Indemnifying Subject to the liability limits set forth in this Agreement (including this Section 10.6), with respect to any Third-Party pursuant Claim relating to Section 10.1 or Section 10.2 in respect of any Purchaser Loss or Shareholder Loss a Special Indemnity Matter for which the Shareholders are liable, the Shareholders shall be limited responsible for any and all such Losses arising under such Thirty Party Claim, which Losses may include consequential, indirect, special, or exemplary damages (including loss of profits or diminution in value); provided, however, that with respect to any Direct Claim relating to a Special Indemnity Matter for which the Shareholders are liable, the Shareholders shall only be responsible for direct damages to the Company and shall not be liable or responsible for any consequential, indirect, special, or exemplary damages (including loss of profits or diminution in value), nor shall “multiple of profits” or “multiple of cash flow” or a similar valuation methodology be used in calculating the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Indemnified Party (or the Company or any of its Subsidiaries) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses before seeking indemnification under this AgreementPurchaser Losses.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, exemplary, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple (except to the extent such types of damages constitute losses to a third party as a result of any claim).
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (ExamWorks Group, Inc.)
Liability Limits. Notwithstanding anything contained in this Agreement to the contrary set forth hereincontrary, no the rights to indemnification under this Agreement are limited as follows:
(a) The Purchaser Indemnified Party Parties shall be indemnified by the Shareholder not make a claim for indemnification under this Article X for any Purchaser Losses (i) with respect to any claim unless such claim involves Purchaser Losses in excess of $75,000 (the “Single Claim Amount”) and (ii) unless and until the aggregate amount of such Purchaser Losses exceeds three-fourths of one percent (0.75%) of the Purchase Price $200,000 (the “DeductiblePurchaser Basket”), but only if in which event the Purchaser Indemnified Parties may claim indemnification for Purchaser Losses to the full extent any such Purchaser Losses also meet Losses, up to a maximum of the requirements of clause Escrow Amount. Notwithstanding the foregoing, the Purchaser Indemnified Parties’ right to seek indemnification hereunder for (i) any Purchaser Losses that relate to any breach of this Section 10.5(athe representations and warranties made in Sections 4.1 (Organization and Power), after which the Shareholder shall only be obligated for such aggregate Purchaser Losses in excess of the Deductible.
4.2(a) (aAuthorization), 4.3 (Capitalization), 4.8 (Taxes), 4.12 (Brokerage), 4.15 (Company Benefit Plans) The total aggregate amount of the liability of the Shareholder for Purchaser Losses shall be limited to ten percent and 4.20 (10%Environmental) of the Purchase Price or (ii) any claims under Section 10.1(d), (f), (g) and (h) (subclauses (i) and (ii), collectively, the “CapPurchaser Basket Exclusions”)) shall not be subject to the Purchaser Basket.
(b) Neither The Member Indemnified Parties shall not make a claim for indemnification under this Article X for Member Losses unless and until the Single Claim Amount nor aggregate amount of such Member Losses exceeds $200,000 (the Deductible shall apply to any Purchaser Losses (i) pursuant to Section 10.1(b“Member Basket”), Section 10.1(c), Section 10.1(d), Section 10.1(e) or Section 10.1(f), or (ii) in respect of any fraud which event the Member Indemnified Parties may claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25. The Cap shall not apply to any Purchaser indemnification for Member Losses (i) pursuant to Section 10.1(b), Section 10.1(c), or Section 10.1(d) or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25.
(c) Payments by an Indemnifying Party pursuant to Section 10.1 or Section 10.2 in respect of any Purchaser Loss or Shareholder Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Indemnified Party (or the Company or any of its Subsidiaries) in respect full extent of any such claimMember Losses, up to a maximum of $1,000,000. The Notwithstanding the foregoing, the Member Indemnified Party shall use its commercially reasonable efforts Parties’ right to recover under insurance policies or indemnity, contribution or other similar agreements seek indemnification hereunder for any Member Losses before seeking indemnification under this Agreement.
(d) In no event shall any Indemnifying Party be liable that relate to any Indemnified Party for any punitivebreach of the representations and warranties made in Sections 5.1 (Organization and Power), incidental, exemplary, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating 5.2(a) (Authorization) and 5.7 (Brokerage) the “Member Basket Exclusion”) shall not be subject to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple (except to the extent such types of damages constitute losses to a third party as a result of any claim)Member Basket.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set ----------------- forth herein, the Purchaser Indemnified Parties shall not make a claim against the Sellers for indemnification under Section 10.01(d) for Purchaser Losses, and ---------------- the Sellers will have no liability for indemnification of any Purchaser Indemnified Party shall be indemnified by the Shareholder under this Article X for any Purchaser Losses (i) with respect pursuant to any claim unless such claim involves Purchaser Losses in excess of $75,000 (the “Single Claim Amount”) and (iiSection 10.01(a) unless and until the aggregate ---------------- Losses claimed thereunder exceed an amount equal to $250,000.00 (the "Threshold --------- Amount"), and once the aggregate amount of such Losses under Section 10.01(a) ------ ---------------- exceeds the Threshold Amount, the Purchaser Indemnified Parties will be entitled to recover all such Losses exceeds three-fourths of one percent (0.75%) of the Purchase Price (the “Deductible”), but only if such Purchaser Losses also meet the requirements of clause (i) of this Section 10.5(a), after to which the Shareholder shall only be obligated for such aggregate Purchaser Losses they are entitled in excess of the Deductible.
(a) Threshold Amount. The total aggregate amount of the liability of the Shareholder Seller for Purchaser Losses with respect any claims made pursuant to Section 10.01(a) other than ---------------- Claims arising under Section 4.19 (Environmental Matters) ("Environmental ------------- ------------- Claims") shall be limited to ten percent $3,000,000.00 (10%the "Purchaser Cap"); provided, ------ ------------- -------- however, that with respect to Environmental Claims the Purchaser Cap shall be ------- increased by an additional $2,000,000 to $5,000,000 (the "Environmental Cap"), ----------------- and the Seller shall be liable for one half (1/2) of the Purchase Price (the “Cap”).
(b) Neither the Single Claim Amount nor the Deductible shall apply to any Purchaser Losses (i) pursuant to Section 10.1(b), Section 10.1(c), Section 10.1(d), Section 10.1(e) or Section 10.1(f), or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25. The Cap shall not apply to any Purchaser Losses (i) pursuant to Section 10.1(b), Section 10.1(c), or Section 10.1(d) or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25.
(c) Payments by an Indemnifying Party pursuant to Section 10.1 or Section 10.2 in respect of any Purchaser Loss or Shareholder Loss shall be limited to the amount of any Environmental Claims in excess of the Environmental Cap; provided, further, that -------- ------- total aggregate amount of the liability of the Company and the Seller for Purchaser Losses arising out of fraud or damage that remains after deducting therefrom willful misconduct shall not be subject to any insurance proceeds and limits. Notwithstanding the foregoing, any indemnity, contribution or other similar payment received indemnification amounts payable by the Sellers pursuant to this Article X will be reduced by any amounts --------- actually recovered by any Purchaser Indemnified Party (or the Company or any of its Subsidiaries) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for collateral sources with respect to such Losses and the Purchaser shall use Commercially Reasonable Efforts to collect any Losses before seeking indemnification under this Agreementsuch amounts.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, exemplary, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple (except to the extent such types of damages constitute losses to a third party as a result of any claim).
Appears in 1 contract
Sources: Stock and Limited Partnership Interest Purchase Agreement (Charys Holding Co Inc)
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein, no Purchaser Indemnified Party Parties shall be indemnified by the Shareholder not make a claim against Sellers for indemnification under this Article X for any Purchaser Losses (i) with respect to any claim unless such claim involves Purchaser Losses in excess of $75,000 (the “Single Claim Amount”) and (iiSection 11.1(b) unless and until the aggregate amount of such Purchaser all Losses pursuant to Section 11.1(b) exceeds three-fourths of one percent an amount equal to One Million Two Hundred Thousand Dollars (0.75%$1,200,000) of the Purchase Price (the “DeductiblePurchaser Basket”), but only if such in which event Purchaser Losses also meet Indemnified Parties may claim indemnification for all Purchaser Losses, including the requirements of clause initial One Million Two Hundred Thousand Dollars (i$1,200,000) of this Section 10.5(a(subject to the other limitations herein); provided, after which however, that the Shareholder Fundamental Representations shall only not be obligated for such aggregate subject to and shall not count towards the Purchaser Losses in excess of the Deductible.
(a) Basket. The total aggregate amount of the liability of the Shareholder Sellers for Purchaser Losses with respect to any claims made pursuant to Section 11.1(b) shall be limited to ten percent Thirty Million Two Hundred Fifty Thousand Dollars (10%$30,250,000) of the Purchase Price (the “Purchaser Cap”); provided, however, that the total aggregate amount of the liability of Seller for Losses arising out of intentional fraud or a breach of any of the Fundamental Representations shall not be subject to any such limits. Notwithstanding anything to the contrary set forth herein, the total aggregate amount of the liability of Sellers under this Agreement and the transactions contemplated hereby (but, for the avoidance of doubt, excluding the Transition Services Agreement, the MasterCard Services Agreement and the Money Transfer Services Agreement) shall be limited to the Purchase Price.
(b) Neither Notwithstanding anything to the Single Claim Amount nor contrary set forth herein, Seller Indemnified Parties shall not make a claim against Purchaser for indemnification under Section 11.2(c) unless and until the Deductible shall apply to any Purchaser aggregate amount of all Losses (i) pursuant to Section 10.1(b11.2(c) exceeds an amount equal to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Seller Basket”), in which event Seller Indemnified Parties may claim indemnification for all Seller Losses, including the initial One Million Two Hundred Thousand Dollars ($1,200,000) (subject to the other limitations herein); provided, however, that the Fundamental Representations shall not be subject to and shall not count towards the Seller Basket. The total aggregate amount of the liability of Purchaser for Losses with respect to any claims made pursuant to Section 10.1(c11.2(c) shall be limited to Thirty Million Two Hundred Fifty Thousand Dollars ($30,250,000) (the “Seller Cap”); provided, Section 10.1(d)however, Section 10.1(e) that the total aggregate amount of the liability of Purchaser for Losses arising out of intentional fraud or Section 10.1(f), or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25. The Cap any of the Fundamental Representations shall not apply be subject to any such limits. Notwithstanding anything to the contrary set forth herein, the total aggregate amount of the liability of Purchaser Losses under this Agreement and the transactions contemplated hereby (ibut, for the avoidance of doubt, excluding the Transition Services Agreement, the MasterCard Services Agreement and the Money Transfer Services Agreement) pursuant after the payment of the Purchase Price to Section 10.1(b), Section 10.1(c), or Section 10.1(d) or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25.
(c) Payments by an Indemnifying Party pursuant to Section 10.1 or Section 10.2 in respect of any Purchaser Loss or Shareholder Loss Seller shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Indemnified Party (or the Company or any of its Subsidiaries) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses before seeking indemnification under this AgreementPurchase Price.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, exemplary, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple (except to the extent such types of damages constitute losses to a third party as a result of any claim).
Appears in 1 contract
Sources: Asset Purchase Agreement (C H Robinson Worldwide Inc)
Liability Limits. Notwithstanding anything to the contrary set forth herein, no Purchaser (a) An Indemnified Party shall be indemnified by the Shareholder not make a claim against an Indemnifying Party for indemnification under this Article X for any Purchaser Losses (iSections 8.1(a) with respect to any claim unless such claim involves Purchaser Losses in excess of $75,000 (the “Single Claim Amount”) and (ii) or Section 8.2(a), as appropriate, unless and until the aggregate amount of such Purchaser Losses or Shareholder Losses, as appropriate, exceeds three$50,000 (the “Basket”), in which event the Indemnified Party may claim indemnification for all Purchaser Losses or Shareholder Losses, as appropriate, solely to the extent such losses exceed $50,000. The total aggregate liability of the Indemnifying Parties for Purchaser Losses or Shareholder Losses, as appropriate, shall be limited to thirty-fourths of one five percent (0.7535%) of the aggregate Purchase Price (actually paid to the “Deductible”), but only if such Purchaser Losses also meet the requirements of clause (i) of this Section 10.5(a), after which the Shareholder shall only be obligated for such aggregate Purchaser Losses in excess of the Deductible.
(a) The total aggregate amount of the liability of the Shareholder for Purchaser Losses shall be limited to ten percent (10%) of the Purchase Price Shareholders (the “Cap”).
(b) . Neither the Single Claim Amount Basket nor the Deductible Cap shall apply to any Purchaser Losses (i) pursuant to Section 10.1(bor Shareholder Losses, as appropriate, arising out of fraud or a breach of any representations and warranties contained in Sections 2.1 through 2.3, Sections 2.4(a), Section 10.1(c)2.5, Section 10.1(d)2.9, Section 10.1(e2.16, 2.17, 2.20, 2.25, or Sections 3.1 through 3.3 or 3.5, or the specific indemnification obligations set forth in Sections 8.1(c)(i) or Section 10.1(f), or (ii), (d), (e) in or (f) or 8.2(c), and the respective Indemnifying Party shall be liable for all Purchaser Losses or Shareholder Losses, as appropriate, with respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25. The Cap thereto; and the Basket shall not apply to any Purchaser Losses (i) pursuant to arising out of the specific indemnification obligation set forth in Section 10.1(b8.1(g); provided, Section 10.1(c)however, or Section 10.1(d) or (ii) except in respect the case of fraud, in no event shall the total liability of any fraud Shareholder for any and all Purchaser Losses under this Article VIII exceed the pro rata portion of the aggregate Purchase Price actually paid to such Shareholder.
(b) In case any event shall occur that would otherwise entitle a Party to assert a claim or for indemnification hereunder, no Losses shall be deemed to have been sustained by such Party to the extent of any claim related to a breach Tax savings actually realized, within eighteen (18) months of Section 4.1such event, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25by such Party with respect thereto.
(c) Payments by an Indemnifying Party pursuant Notwithstanding anything herein to Section 10.1 or Section 10.2 in respect of any Purchaser Loss or Shareholder Loss the contrary, no party shall be limited entitled to indemnification or reimbursement from any other party under any provision of this Agreement for any amount to the extent such party or its Affiliate has been fully indemnified or reimbursed for such amount under any other provision of this Agreement, the exhibits or the schedules attached hereto, or any document executed in connection with this Agreement or otherwise. Furthermore, in the event any Losses related to a claim by the Purchaser are covered by insurance, the Purchaser agrees to use commercially reasonable efforts to seek recovery under such insurance and the Purchaser shall not be entitled to recover from the Shareholders (and shall refund amounts received up to the amount of any liability or damage that remains after deducting therefrom any indemnification actually received) with respect to such Losses to the extent the Purchaser recovers the insurance proceeds and any indemnity, contribution or other similar payment received by specified in the Indemnified Party (or the Company or any of its Subsidiaries) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses before seeking indemnification under this Agreementpolicy.
(d) In no event Notwithstanding anything to the contrary contained in this Agreement, none of the parties hereto shall have any Indemnifying Party be liable to liability under any Indemnified Party provision of this Agreement for any punitive, incidental, exemplary, consequential, special or indirect damages, including loss of future revenue or incomediminution in value, loss of business reputation or opportunity or (except to the extent provided below) loss of future profits, revenue or income, relating to the breach or alleged breach of any provision of this Agreement, or diminution regardless of value or any whether such damages based on any type of multiple (were foreseeable, except to the extent such types of damages constitute losses are payable to a third party party; provided, however, the foregoing limitation shall not prohibit or preclude recovery by a Purchaser Indemnified Party for lost profits on any Contracts that are active and funded as of the date of this Agreement to the extent arising from a result breach of the representations and warranties contained in Sections 2.14. Each of the parties agrees to take commercially reasonable steps to mitigate their respective Losses upon and after becoming aware of any claim)event or condition which could reasonably be expected to give rise to any Losses that are indemnifiable hereunder.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth hereinin this Agreement, no Purchaser the Equity Holders’ obligation to indemnify, defend and hold the Buyer Indemnified Party Parties harmless shall be indemnified by limited as follows:
(a) no amounts of indemnity shall be payable pursuant to Section 10.1 unless and until the Shareholder under this Article X for any Purchaser Losses (i) with respect to any claim unless such claim involves Purchaser Buyer Indemnified Parties shall have suffered Buyer Losses in excess of $75,000 2,000,000 (the “Single Claim Threshold Amount”) and (ii) unless and until in the aggregate amount of such Purchaser Losses exceeds three-fourths of one percent (0.75%) of aggregate, in which case the Purchase Price (the “Deductible”), but Buyer Indemnified Parties shall be entitled to recover only if such Purchaser Losses also meet the requirements of clause (i) of this Section 10.5(a), after which the Shareholder shall only be obligated for such aggregate Purchaser Buyer Losses in excess of the Deductible.Threshold Amount; provided, that amounts of indemnity for Buyer Losses pursuant to (i) Section 10.1(a)(i) with respect the Company Fundamental Representations, (ii) Section 10.1(b)(i) with respect to the Stockholder Fundamental Representations, or (iii) Section 10.1(a)(ii), Section 10.1(a)(iii), Section 10.1(a)(iv), Section 10.1(a)(v), Section 10.1(a)(vi), Section 10.1(a)(vii), Section 10.1(b)(ii) or Section 10.1(b)(iii) in each case, shall not be subject to the Threshold Amount;
(ab) The total subject to the provisos contained in this Section 10.5(b), any indemnification obligation of the Equity Holders pursuant to this Article X shall be satisfied solely from (x) the Holdback Amount, with respect to Section 10.1(a)(iv), and (y) the Escrow Amount with respect to all other Buyer Losses; provided, however, that, subject to Section 10.4, Buyer may seek indemnification for Buyer Losses (i) arising under Section 10.1(b)(i) (with respect to Stockholder Fundamental Representations), Section 10.2(b)(ii) or Section 10.2(b)(iii) directly from the relevant Stockholder, and (ii) with respect to Company Fundamental Representations or arising under Section 10.1(a)(ii), or 10.1(a)(iii), from each Equity Holder, directly based on such Equity Holder’s Pro Rata percentage but not to exceed the amount such Equity Holder received as a result of the transaction (the “Proceeds Cap”);
(c) in no event shall the aggregate amount of the indemnification obligations of the Equity Holders related to Indemnified Misclassification Claims exceed the Holdback Amount;
(d) except for Buyer Losses with respect to Section 10.1(a)(v) or 10.2(b)(iii), in no event shall the aggregate amount of indemnity required to be paid by each Equity Holder pursuant to Section 10.1 exceed the Proceeds Cap;
(e) the liability of the Shareholder for Purchaser each Equity Holder with respect to Buyer Losses arising under Section 10.1(a) shall be limited several and not joint based on such Equity Holder’s relative Pro Rata Percentage;
(f) no Equity Holder shall have any liability for Buyer Losses arising under Section 10.1(b) except to ten percent the extent such Equity Holder has made the representation or warranty in Article IV or made the covenant, agreement or undertaking in this Agreement under which such Buyer Losses arise or committed fraud;
(10%g) each Equity Holder shall be deemed to have a subaccount of the Purchase Price Escrow Fund in an amount equal to such Equity Holder’s Pro Rata Percentage of the Escrow Amount (the each, a “CapSubaccount”).;
(bh) Neither notwithstanding anything set forth herein to the Single Claim Amount nor the Deductible shall apply contrary, but subject to any Purchaser Losses Section 10.5(b), (i) pursuant to Section 10.1(b), Section 10.1(c), Section 10.1(d), Section 10.1(e) or Section 10.1(f), or any indemnification obligation of an Equity Holder under this Agreement shall be satisfied solely from such Equity Holder’s Subaccount of the Escrow Fund; (ii) in respect the event that, following satisfaction of an indemnification claim for Buyer Losses from a Subaccount of the Escrow Fund, a subsequent claim for indemnification is made pursuant to this Article X, Buyer Losses shall be payable only from the Escrow Fund out of each Equity Holder’s Subaccount based on that Equity Holder’s Pro Rata Percentage of such Buyer Losses and; (iii) if any fraud claim or Equity Holder’s Subaccount is insufficient to satisfy such Equity Holder’s Pro Rata Percentage of Buyer Losses, then such Buyer Losses will remain unsatisfied notwithstanding that other Subaccounts have sufficient funds to satisfy such Buyer Losses and no Buyer Indemnified Party shall be entitled to recover any claim related to a breach such shortfalls from the Subaccounts of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25. The Cap shall not apply to any Purchaser Losses other Equity Holders;
(i) pursuant for purposes of computing the aggregate amount of indemnifiable claims against the Equity Holders, the amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to Section 10.1(b)be an amount equal to, Section 10.1(c), or Section 10.1(d) or (ii) in respect of and any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25.
(c) Payments payments by an Indemnifying Party the Equity Holders pursuant to Section 10.1 or Section 10.2 in respect of any Purchaser Loss or Shareholder Loss shall be limited to to, the amount of any liability or damage such Buyer Losses that remains remain after deducting therefrom any third party insurance proceeds and any indemnity, contribution contributions or other similar payment received by actually recovered from any third party with respect thereto;
(j) the Indemnified Party amount of indemnity payable pursuant to Section 10.1 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Final Closing Statement;
(or the Company or any of its Subsidiariesk) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements claim for any Losses before seeking indemnification under this Agreement.
(d) In no event , the Equity Holders shall not be required to indemnify any Indemnifying Party be liable to any Indemnified Party Person for any punitive, incidental, exemplary, consequential, special or indirect damageslosses, including business interruption loss, loss of future revenue revenue, diminution in value, lost profits or income, or loss of business reputation or other opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on a multiplier of earning or other financial measure (other than any type of multiple (except to the extent such types of punitive or other damages constitute losses to a third party awarded as a result of any a third party claim);
(l) any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article X shall be required to use commercially reasonable efforts (i) to mitigate such Loss, and (ii) to obtain insurance proceeds or proceeds from other sources of indemnification available to such Party (in each case consistent with sound and standard business practices of such Party); provided, however, nothing shall be deemed to require initiation of any proceedings;
(m) no Party shall have any liability for any Loss which would not have arisen but for any alteration or repeal or enactment of any Law after the Closing Date;
(n) the Equity Holders shall have no liability for any Buyer Loss that would not have arisen but for any change in the accounting policies, practices or procedures adopted by Buyer and/or its Affiliates or for any other act or omission by Buyer and/or its Affiliates after the Closing Date;
(o) in any case where a Buyer Indemnified Party recovers from any third party any amount in respect of a matter with respect to which the Equity Holders have indemnified Buyer pursuant to this Agreement, such Buyer Indemnified Party shall promptly pay over to the Sellers’ Representative (on behalf of the Stockholders and the Warrant Holder) and to the Company (on behalf of the Option Holders, and which the Company shall promptly distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h)) such Equity Holders’ Pro Rata Percentage of the amount so recovered;
(p) the liability of the Equity Holders for Buyer Losses shall be considered in the aggregate and shall be determined on a cumulative basis so the Buyer Losses incurred under Article X shall be combined with all other Buyer Losses incurred under Article X for purposes of determining limitations on liability, including the maximum liability amounts described above;
(q) any indemnity payment under this Agreement shall be treated as an adjustment to the Purchase Price for U.S. federal income tax purposes; and
(r) notwithstanding anything in this Agreement to the contrary, no past, present or future director, officer, employee, incorporator, affiliate, management, vendor, service provider, agent, attorney or representative of the Company, any Company Subsidiary, the Equity Holders or any of Sellers’ Affiliates shall have any liability for (i) any obligations or liabilities of the Company, any Company Subsidiary, the Equity Holders or any of Sellers’ Affiliates relating to or arising from this Agreement or (ii) any claim against the Company, any Company Subsidiary, the Equity Holders or any of Sellers’ Affiliates based on, in respect of, or by reason of, the transactions contemplated by this Agreement.
Appears in 1 contract
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein, no Purchaser ESI Indemnified Party Parties shall not make a claim against the Sellers or the Shareholders' Agent, and the Sellers and the Shareholders' Agent will not be indemnified by the Shareholder liable for indemnification, under this Article X Agreement or otherwise, for any Purchaser ESI Losses (i) with respect to any claim unless such claim involves Purchaser Losses in excess of $75,000 (the “Single Claim Amount”) and (ii) unless and until the aggregate amount of such Purchaser ESI Losses (other than ESI Losses which are reimbursed pursuant to the operation of Section 8.5(d)) exceeds three-fourths of one percent million dollars (0.75%$1,000,000) of the Purchase Price (the “Deductible”"ESI BASKET"), but only if such Purchaser Losses also meet the requirements of clause (i) of this Section 10.5(a), after in which the Shareholder shall only be obligated event ESI Indemnified Parties may claim indemnification for such aggregate Purchaser all ESI Losses in excess of the Deductible.initial $1,000,000 (subject to Section 8.5(b)); provided, however, that (X) the ESI Basket shall be subject to adjustment in accordance with Section 8.5(d) and (Y) ESI Losses resulting from any of the following claims shall not be subject to the ESI Basket:
(aI) The total aggregate amount a Claim of (i) any breach or inaccuracy of any representation or warranty in Section 2.2 or Section 2.3, (ii) any breach of the liability Sellers' covenants, agreements and undertakings set forth in Article I or Section 4.1.3 (Tax Matters), (iii) any breach of the Sellers' covenants, agreements and undertakings set forth in the following Sections of this Agreement to be performed on or after the Closing: Section 4.1.1(f) (Names), Section 4.2.9 (Shareholder for Purchaser Losses shall be limited Releases), Section 4.2.11 (Confidentiality), Section 4.2.12 (Sellers' Non-Solicitation), Section 9.3 (Assignments), Section 9.6 (Consent to ten percent Jurisdiction), Section 9.7 (10%Waiver of Jury Trial), Section 9.8 (Specific Performance) or Section 9.14 (Cooperation), (iv) any liability relating to, resulting from or arising out of the Purchase Price failure of NPA to qualify as a foreign corporation in the State of Wisconsin or (v) any liability relating to, resulting from or arising out of a dispute between the “Cap”)Shareholders and the Shareholders' Agent in respect of this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby;
(II) a Claim of any breach of the Sellers' covenants, agreements and undertakings set forth in Section 4.2.10 (Brokerage Fees) or Section 9.15 (Transaction Costs) to be performed on or after the Closing; and
(III) a Claim of any liability relating to, resulting from or arising out of (i) any act or omission occurring prior to the Closing in connection with the Companies' Vision and Dental Businesses or (ii) any Action by a Newco Employee against the Companies with respect to such Newco Employee's employment prior to the Closing.
(b) Neither Notwithstanding anything to the Single Claim Amount nor contrary set forth herein, ESI Indemnified Parties shall not make a claim against the Deductible shall apply Sellers or the Shareholders' Agent, and Sellers and the Shareholders' Agent will not be liable, for indemnification under this Agreement or otherwise, for ESI Losses in excess of twenty-five million dollars ($25,000,000) in the aggregate (the "ESI Cap"); provided, however, that ESI Losses relating to any Purchaser Losses of the following claims shall not be subject to the ESI Cap:
(I) a Claim of (i) pursuant any breach or inaccuracy of any representation or warranty in Section 2.2 or Section 2.3, (ii) any breach of the Sellers' covenants, agreements and undertakings set forth in Article I, (iii) any breach of the Sellers' covenants, agreements and undertakings set forth in the following Sections of this Agreement to be performed on or after the Closing: Section 10.1(b4.1.1(f) (Names), Section 10.1(c4.2.9 (Shareholder Releases), Section 10.1(d4.2.11 (Confidentiality), Section 10.1(e4.2.12 (Sellers' Non-Solicitation), Section 9.3 (Assignments), Section 9.6 (Consent to Jurisdiction), Section 9.7 (Waiver of Jury Trial), Section 9.8 (Specific Performance) or Section 10.1(f9.14 (Cooperation), (iv) any liability relating to, resulting from or arising out of the failure of NPA to qualify as a foreign corporation in the State of Wisconsin or (v) any liability relating to, resulting from or arising out of a dispute between the Shareholders and the Shareholders' Agent in respect of this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby;
(II) a Claim of any breach of the Sellers' covenants, agreements and undertakings set forth in Section 4.2.10 (Brokerage Fees) or Section 9.15 (Transaction Costs) to be performed on or after the Closing; and
(III) a Claim of any liability relating to, resulting from or arising out of (i) any act or omission occurring prior to the Closing in connection with the Companies' Vision and Dental Businesses or (ii) in any Action by a Newco Employee against the Companies with respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25. The Cap shall not apply such Newco Employee's employment prior to any Purchaser Losses (i) pursuant to Section 10.1(b), Section 10.1(c), or Section 10.1(d) or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25.the Closing;
(c) Payments by an Indemnifying Party pursuant to Section 10.1 or Section 10.2 in respect of any Purchaser Loss or Shareholder Loss shall be limited to the The amount of any liability or damage that remains after deducting therefrom damages indemnifiable pursuant to this Article shall be reduced to reflect the value of any insurance proceeds and any indemnity, contribution or other similar payment received Tax benefit actually realized by the Indemnified Party (or its successors or assigns as a result of such damages; provided, however, that the Company or any determination of its Subsidiaries) whether a Tax benefit is actually realized will be made by the Indemnified Party and will not be subject to review by the Indemnifying Party in respect the absence of any such claim. The manifest error; and provided, further, that upon the reasonable request of the Indemnifying Party, the Indemnified Party shall prepare (or cause to be prepared), at the Indemnifying Party's sole and reasonable expense, and furnish (or cause to be furnished) a pro forma statement which shall contain, in the reasonable judgment of the Indemnifying Party, all pertinent Tax and other financial information sufficient to establish the value, if any, of the Tax benefit actually realized by the Indemnified Party, with respect to the damages indemnifiable pursuant to this Article. In no event shall the Sellers be permitted to review any Tax Return of ESI or the Companies pursuant to the operation of the immediately preceding sentence. ESI agrees that it will use its all commercially reasonable efforts to recover obtain insurance proceeds under existing policies purchased by the Companies prior to the Closing Date and the amount of indemnification payable under Article VIII to ESI and the Companies shall be reduced by the amount of insurance policies or indemnityproceeds actually received by ESI and the Companies (net of any expenses incurred in pursuing such insurance claim), contribution or other similar agreements for and if the indemnification payment has already been made by the Indemnifying Party, then ESI and the Companies shall pay over the insurance proceeds to the extent the insurance proceeds recovered do not exceed the indemnification payment; provided, however, that ESI shall have no obligation to maintain any Losses before seeking indemnification under such insurance policies; and provided, further, that this AgreementSection 8.5(c) shall not relieve any Indemnifying Party of its obligations in the event that no insurance proceeds are actually received.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveAt the Closing, incidental, exemplary, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating ESI may deliver to the breach Shareholders' Agent a written statement (the "WARRANTY STATEMENT") setting forth, in reasonable detail, any assertions that ESI may choose to make that (x) the representations and warranties set forth in Article II were not, as of the date hereof, true and correct in all respects if specifically qualified by materiality or, if not so qualified, true and correct in all material respects (an "INITIAL WARRANTY ASSERTION") or alleged breach (y) the representations and warranties set forth in Article II are not, as of this Agreementthe date of Closing, or diminution of value or any damages true and correct in all respects if specifically qualified by materiality or, if not so qualified, true and correct in all material respects (an "INTERIM PERIOD WARRANTY ASSERTION"). If, subsequent to the Closing, ESI makes an Indemnification Claim based on any type of multiple (except an Initial Warranty Assertion set forth in the Warranty Statement, the ESI Basket with respect to such Indemnification Claims shall be zero. If, subsequent to the extent Closing, ESI makes an Indemnification Claim based on an Interim Period Warranty Assertion set forth in the Warranty Statement, the ESI Basket with respect to such types of damages constitute losses to a third party as a result of any claimIndemnification Claims shall be five hundred thousand dollars ($500,000).
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Express Scripts Inc)
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein:
(i) the Seller shall have no liability pursuant to Section 8.1(a) for any individual claim (or group of related claims arising out of the same series of facts, conditions or events) unless the Buyer Losses in respect of such claim or group of related claims exceeds $37,500 (such amount, the “Buyer Mini-Basket”) (after which, subject to the terms, conditions and limitations otherwise set forth in this Article VIII, the Seller shall be liable for the full amount of such Buyer Losses);
(ii) the Buyer Indemnified Parties shall not make a claim against the Seller for indemnification under Section 8.1(a) for Buyer Losses unless and until the aggregate amount of such Buyer Losses exceeds $1,670,000 (the “Buyer Basket”), in which case the Seller shall be liable only for such Buyer Losses in excess of $835,000 (the “Buyer Basket Tipping Point”); provided, that solely with respect to any such claim for a breach of any representation or warranty for which the Seller delivers a Supplement pursuant to Section 5.5(b), the Buyer Basket shall be deemed to equal $4,125,000 and the Buyer Basket Tipping Point shall be deemed to equal $2,062,500; and
(iii) the total aggregate amount of the liability of the Seller for Buyer Losses pursuant to Section 8.1(a) shall be limited to $16,700,000 (the “Buyer Cap”). Notwithstanding anything to the contrary set forth herein, no Purchaser Indemnified Party shall be indemnified by the Shareholder under this Article X for any Purchaser Losses (i) with respect to any claim unless such claim involves Purchaser Losses Seller Fundamental Representations and the representations and warranties set forth in excess of $75,000 (the “Single Claim Amount”) and (ii) unless and until the aggregate amount of such Purchaser Losses exceeds three-fourths of one percent (0.75%) of the Purchase Price (the “Deductible”Section 3.15(d), but only if such Purchaser Losses also meet the requirements of clause (i) of this Section 10.5(a3.15(e), after which and Section 3.17 shall not be subject to the Shareholder shall only be obligated for such aggregate Purchaser Losses in excess of Buyer Mini-Basket, the Deductible.
(a) The Buyer Basket or the Buyer Cap; provided, that the total aggregate amount of the liability of the Shareholder Seller for Purchaser Buyer Losses arising under Section 3.15(d), Section 3.15(e), and Section 3.17 shall be limited to ten percent (10%) $167,000,000; provided, further, that in no event shall the Seller be responsible for any liability under this Agreement in an amount in excess of the Purchase Price (the “Cap”)proceeds received by it hereunder.
(b) Neither the Single Claim Amount nor the Deductible The amount of any and all Losses under this Article VIII shall apply be determined net of any amounts actually recovered pursuant to any Purchaser Losses insurance, indemnity, reimbursement arrangement, or similar contract or other recovery available to the Indemnified Party or its Affiliates in connection with the facts giving rise to the right of indemnification (iin each case, net of any fees, expenses or Taxes incurred in connection therewith, including increased premiums) (each, an “Alternative Recovery”). The Indemnified Party will, subject applicable Law and Contract, use commercially reasonable efforts to seek recovery under all such Alternative Recoveries with respect to any Loss to substantially the same extent as such Indemnified Party would if such Loss were not subject to indemnification hereunder; provided, that the foregoing clause shall not be deemed to require that any Indemnified Party commence, defend or participate in litigation. In the event that the Indemnified Party receives recovery of any amount pursuant to Section 10.1(b)an Alternative Recovery for which it has already been indemnified by the Indemnifying Party hereunder, Section 10.1(c), Section 10.1(d), Section 10.1(e) or Section 10.1(f), or (ii) in respect of any fraud claim or any claim related the Indemnified Party will promptly refund an equal amount to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25. The Cap shall not apply to any Purchaser Losses (i) pursuant to Section 10.1(b), Section 10.1(c), or Section 10.1(d) or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25the Indemnifying Party.
(c) Payments All Losses shall be determined without duplication of recovery by an Indemnifying Party reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement. No Losses may be recovered under this Article VIII to the extent such Losses were taken into account as Closing Indebtedness, Closing Transaction Expenses or Closing Aggregate Deferred Revenue in the adjustment of the Purchase Price pursuant to Section 10.1 or Section 10.2 in respect of 2.6. No Indemnified Party will have any Purchaser right to make a claim for any Loss or Shareholder Loss shall be limited under this Article VIII except to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the extent such Indemnified Party (or the Company or believes in good faith that it is reasonably likely to, in fact, incur such Loss, and in no event can any of its Subsidiaries) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses before seeking indemnification under this AgreementArticle VIII unless and until a Loss is actually incurred.
(d) In no event shall any Indemnifying Party be liable to party hereto have any Indemnified Party liability under any provision of this Agreement or any Ancillary Agreement for any punitive, incidental, exemplary, consequential, special (i) punitive or indirect exemplary damages, including loss of future revenue (ii) unforeseeable consequential or income, loss of business reputation unforeseeable special damages or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or (iii) any damages based on any type a multiple of multiple (earnings, in each case except to the extent such types of damages constitute losses paid or required to be paid by an Indemnified Party to a third party as a result of any claim)party.
Appears in 1 contract
Sources: Equity Purchase Agreement (Sequential Brands Group, Inc.)
Liability Limits. Notwithstanding anything to the contrary set forth herein, no the Purchaser Indemnified Party Parties shall be indemnified by not make a claim against the Majority Shareholder for indemnification under this Article X Section 11.1(a) for any Purchaser Losses (i) with respect to any claim unless such claim involves Purchaser Losses in excess of $75,000 (the “Single Claim Amount”) and (ii) unless and until the aggregate amount of such Purchaser Losses exceeds three-fourths of one percent One Million Dollars (0.75%$1,000,000) of the Purchase Price (the “Deductible”), but only if in which event the Purchaser Indemnified Parties may claim indemnification for all such Purchaser Losses also meet the requirements of clause (i) of this Section 10.5(a), after which the Shareholder shall only be obligated for such aggregate Purchaser Losses in excess of the Deductible.
, up to, but not to exceed Forty Million Dollars (a) The total aggregate amount of the liability of the Shareholder for Purchaser Losses shall be limited to ten percent (10%) of the Purchase Price (the $40,000,000)(the “Cap”).
. Notwithstanding the foregoing, (ba) Neither the Single Claim Amount nor the Deductible shall not apply to any Purchaser Losses (i) pursuant to Section 10.1(b), Section 10.1(c), Section 10.1(d), Section 10.1(e) arising out of or Section 10.1(f), or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.14.7(b) (Title to Assets), Section 4.24.17 (Company Benefit Plans), Section 4.34.22(d) (Licensed Intellectual Property), Section 4.4, Section 4.14 4.23 (Affiliate Matters) or Section 4.25. The 4.30 (Brokers, Finders and Investment Bankers), and the Majority Shareholder shall be liable for all Purchaser Losses with respect thereto, up to, but not to exceed the Cap, and (b) the Deductible and the Cap shall not apply to any Purchaser Losses (i) pursuant to Section 10.1(b), Section 10.1(c), arising out of or Section 10.1(d) or (ii) in respect of any fraud claim or any claim related to fraud or a breach of Section 4.14.1(a)-(d) (Organization), Section 4.24.2 (Authorization), Section 4.35.1 (Authorization and Validity of Agreement), Section 4.4, Section 4.14 5.3 (Ownership of Equity) or Section 4.25.
4.15 (c) Payments by an Indemnifying Party pursuant to Section 10.1 or Section 10.2 in respect of Tax Returns; Taxes), any such Purchaser Loss or Losses shall not be aggregated toward the Cap, and the Majority Shareholder Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Indemnified Party (or the Company or any of its Subsidiaries) in liable for all Purchaser Losses with respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses before seeking indemnification under this Agreementthereto.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, exemplary, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple (except to the extent such types of damages constitute losses to a third party as a result of any claim).
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary ----------------- set forth herein, no the Purchaser Indemnified Party Parties shall be indemnified by not make a claim against CTSI or the Shareholder Seller for indemnification under this Article X Section 10.01 (d) for any Purchaser Losses (i) with respect to any claim unless such claim involves Purchaser Losses in excess of $75,000 (the “Single Claim Amount”) and (ii) unless and until the aggregate amount of such Purchaser Losses exceeds threeFour-fourths of one percent Hundred Thousand Dollars (0.75%$400,000.00) of the Purchase Price (the “Deductible”"Purchaser Basket"), but only if such ---------------- in which event the Purchaser Losses also meet Indemnified Parties may claim indemnification for all Purchaser Losses, including the requirements of clause initial $400,000.00; provided, however, that (i) the Surviving Representations shall not be subject -------- ------- to the Purchaser Basket, and (ii) for purposes of this Section 10.5(a)calculating the Purchaser Basket, after which the Shareholder dollar value of any breaches of any representation or warranty shall only be obligated for calculated without reference to any materiality or adverse effect qualifier or exception set forth in such aggregate Purchaser Losses in excess of the Deductible.
(a) representation or warranty. The total aggregate amount of the liability of the Shareholder Company and the Seller for Purchaser Losses with respect any claims made pursuant to Section 10.01(d) shall be limited to ten an amount equal to fifteen percent (1015%) of the Purchase Price (the “"Purchaser --------- Cap”").
(b) Neither ; provided, however, that the Single Claim Amount nor total aggregate amount of the Deductible liability of --- -------- ------- the Company and the Seller for Purchaser Losses arising out of fraud, willful misconduct, or a violation of applicable securities or other laws shall apply not be subject to any limits. In addition, the aggregate liability of Purchaser Losses (i) pursuant and Parent to Section 10.1(b), Section 10.1(c), Section 10.1(d), Section 10.1(e) or Section 10.1(f), or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25. The Cap shall not apply to any Purchaser Losses (i) pursuant to Section 10.1(b), Section 10.1(c), or Section 10.1(d) or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25.
(c) Payments by an Indemnifying Party pursuant to Section 10.1 or Section 10.2 in respect of any Purchaser Loss or Shareholder Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the all Seller Indemnified Party (or the Company or any of its Subsidiaries) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements Parties for any Seller Losses before seeking indemnification under this Agreement.
(d) In no event shall associated with any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, exemplary, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach failure by Purchaser or Parent to perform under Section 6.12 of this Agreement, or diminution arising from any inability of value or any damages based on any type of multiple (except Seller to sell the extent such types of damages constitute losses to a third party as a result of any claim)Issued Securities in the public market, shall not exceed $4,000,000.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth herein, no :
(a) The Purchaser Indemnified Party Parties shall be indemnified by the Shareholder not make any claim for indemnification under this Article X Section 10.1(a) for any Purchaser Losses (i) with respect to any claim unless such claim involves Purchaser Losses in excess of $75,000 (the “Single Claim Amount”) and (ii) unless and until the aggregate amount of such Purchaser Losses exceeds three-fourths of one percent (0.75%) of the Purchase Price $25,000 (the “DeductibleBasket”), but only if such in which event the Purchaser Losses also meet Indemnified Parties may claim indemnification for all Purchaser Losses, including the requirements of clause (i) of this Section 10.5(a)Basket; provided, after which however, that the Shareholder Surviving Representations shall only not be obligated for such aggregate Purchaser Losses in excess of subject to the Deductible.
(a) The total aggregate amount of the liability of the Shareholder for Purchaser Losses shall be limited to ten percent (10%) of the Purchase Price (the “Cap”)Basket.
(b) Neither the Single Claim Amount nor the Deductible shall apply to any The aggregate amount of Purchaser Losses recoverable by the Purchaser Indemnified Parties (iby offset or otherwise) pursuant to under Section 10.1(a) and/or Section 10.1(c) shall not exceed the Cap; provided, however, that the Surviving Representations and Purchaser Losses recoverable under Sections 10.1(b), Section 10.1(c(d), Section 10.1(d(e), Section 10.1(e(f) or Section 10.1(f), or and (iig) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25. The Cap shall not apply be subject to any Purchaser Losses (i) pursuant to Section 10.1(b), Section 10.1(c), or Section 10.1(d) or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25the Cap.
(c) Payments by an Indemnifying Party pursuant Subject, as applicable, to the recovery limitations under Section 10.6(b), the maximum aggregate amount of Purchaser Losses that the Purchaser Indemnified Parties shall be entitled to recover directly from the Major Stockholder (other than, subject to Section 10.6(b), by offset) under Section 10.1 or Section 10.2 in respect shall not exceed the greater of any Purchaser Loss or Shareholder Loss shall be limited to (i) $1,578,000 and (ii) the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment Merger Consideration actually received by the Indemnified Party Major Stockholder; provided, however, the following shall not be subject to such limitation with respect to the Major Stockholder: (A) Purchaser Losses under Section 10.1(b) that arise out of or result from any breach of any covenant, agreement or undertaking made by the Company Major Stockholder or any of its SubsidiariesAffiliates (excluding, for clarity, the Company (if otherwise applicable) from such “Affiliates”) under Article VI in this Agreement, and (B) Purchaser Losses under Section 10.1(g) that arise out of or relate to any fraud, intentional misrepresentation, criminal activity, or willful misconduct of the Major Stockholder or any of its Affiliates (excluding, for clarity, the Company (if otherwise applicable) from such “Affiliates”) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses before seeking indemnification under connection with this Agreement.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, exemplary, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple (except to the extent such types of damages constitute losses to a third party as a result of any claim).
Appears in 1 contract
Sources: Merger Agreement (PRGX Global, Inc.)
Liability Limits. (a) Notwithstanding anything to the contrary set forth hereinin this Agreement, no Purchaser Seller’s obligation to indemnify, defend and hold harmless any Buyer Indemnified Party from Liability shall be indemnified by limited, in the Shareholder under this Article X for any Purchaser Losses aggregate, as follows:
(i) with With respect to Liability due to Section 8.1(a) or Section 8.1(b) of this Agreement, except as otherwise provided, Seller’s obligation to indemnify, defend and hold harmless the Buyer Indemnified Parties shall not arise (i) for any claim unless such claim involves Purchaser Losses in excess of $75,000 individual Liability totaling less than Two Hundred Fifth Thousand Dollars (the “Single Claim Amount”US$250,000) and or (ii) unless and until until, after taking into account the aggregate amount other limitations of such Purchaser Losses exceeds three-fourths of this Section 8.4, the Buyer Indemnified Parties shall have suffered Liabilities indemnifiable under Section 8.1(a) or Section 8.1(b) which, in the aggregate, exceed one percent (0.751%) of the Purchase Price Price, in which case the Buyer Indemnified Parties shall then be entitled to recover the full amount of all Liabilities indemnifiable under Section 8.1(a) or Section 8.1(b) including any individual Liability totaling less than Two Hundred Fifty Thousand Dollars (US$250,000); provided, that in no event shall the “Deductible”aggregate amount required to be paid by Seller to all Buyer Indemnified Parties entitled to indemnity with respect to Liability under Section 8.1(a) or Section 8.1(b), but only if such Purchaser Losses also meet the requirements of clause (i) of this Section 10.5(a)except as otherwise provided, after which the Shareholder shall only be obligated for such aggregate Purchaser Losses in excess of the Deductible.
(a) The total aggregate exceed an amount of the liability of the Shareholder for Purchaser Losses shall be limited equal to ten percent (10%) of the Purchase Price (the “Cap”).
(b) Neither the Single Claim Amount nor the Deductible shall apply to any Purchaser Losses (i) pursuant to Section 10.1(b), Section 10.1(c), Section 10.1(d), Section 10.1(e) or Section 10.1(f), or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25Price. The Cap foregoing limitations shall not apply to a claim for indemnification to the extent such claim is based upon a breach of any Purchaser Losses (iof the Tax Representations, Tax covenants to make any payment or reimbursement contained in Sections 5.14(a) pursuant to Section 10.1(b), Section 10.1(cthrough 5.14(d), or Section 10.1(d) as a result of any fraud, willful misconduct or intentional misrepresentation in connection with this Agreement.
(ii) in respect for purposes of computing the aggregate amount of Liability indemnifiable by Seller, the amount of each Claim by a Buyer Indemnified Party shall be deemed to be an amount equal to, and any fraud claim or any claim related to a breach of payments by Seller under Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 8.1(a) or Section 4.25.
(c8.1(b) Payments by an Indemnifying Party pursuant to Section 10.1 or Section 10.2 in respect of any Purchaser Loss or Shareholder Loss shall be limited to to, the amount of any liability or damage Liability that remains after deducting therefrom any third Person insurance proceeds and any indemnity, contribution contributions or other similar payment actually received by the a Buyer Indemnified Party (or the Company or any of its Subsidiaries) in with respect of any to such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses before seeking indemnification under this AgreementClaim.
(db) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitiveIN ANY CLAIM FOR INDEMNIFICATION UNDER THIS AGREEMENT, incidentalNO PARTY SHALL BE REQUIRED TO INDEMNIFY ANY INDEMNIFIED PARTY FOR SPECIAL, exemplaryPUNITIVE, consequentialEXEMPLARY OR CONSEQUENTIAL DAMAGES, special or indirect damagesINCLUDING LOSS OF PROFIT OR REVENUE, including loss of future revenue or incomeANY MULTIPLE OF REDUCED CASH FLOW, loss of business reputation or opportunity relating to the breach or alleged breach of this AgreementINTERFERENCE WITH OPERATIONS, or diminution of value or any damages based on any type of multiple OR LOSS OF LENDERS, INVESTORS OR BUYERS, EXCEPT WITH RESPECT TO THIRD PARTY CLAIMS (except to the extent such types of damages constitute losses to a third party as a result of any claimOTHER THAN CLAIMS BY AN ASSIGNEE).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Arch Coal Inc)
Liability Limits. (a) Notwithstanding anything to the contrary set forth herein, no the Purchaser Indemnified Party Parties shall be indemnified by not make a claim against the Shareholder Sellers or the Shareholders for indemnification under this Article X Section 10.1(a)(i) for any Purchaser Losses (i) with respect to any claim unless such claim involves Purchaser Losses in excess of $75,000 (the “Single Claim Amount”) and (ii) unless and until the aggregate amount of such Purchaser Losses exceeds three-fourths $365,000 (the “Purchaser Basket”), in which event the Purchaser Indemnified Parties may claim indemnification for the entire amount of one Purchaser Losses (including the initial $365,000); provided, however, that the Purchaser Basket shall not apply to Purchaser Losses based on (i) fraud or intentional misrepresentation (“Fraud Claims”) or (ii) inaccuracies or breaches of Fundamental Representations (as defined below). The total aggregate amount of liability of the Sellers and the Shareholders for Purchaser Losses with respect to any claims made under Section 10.1(a) shall be limited to (A) during the first eighteen (18) months after the Closing, fifty percent (0.7550%) of the Purchase Price, (B) during the period after the first eighteen (18) months after the Closing and before the thirty-six (36) month anniversary of the Closing, twenty-five percent (25%) of the Purchase Price and (C) during the “Deductible”), but only if such Purchaser Losses also meet period after the requirements of clause thirty-six (i36) of this Section 10.5(a), after which the Shareholder shall only be obligated for such aggregate Purchaser Losses in excess month anniversary of the Deductible.
(a) The total aggregate amount of the liability of the Shareholder for Purchaser Losses shall be limited to ten Closing, fifteen percent (1015%) of the Purchase Price (the “Cap”); provided, however, that the Cap shall not apply to Purchaser Losses arising, directly or indirectly, from Fraud Claims; provided, further, that inaccuracies or breaches of the representations and warranties contained in Section 4.1 (Organization), Section 4.2 (Authorization), Section 4.3 (Capitalization), Section 4.4 (Absence of Restrictions and Conflicts), Section 4.8 (Sufficiency of and Title to Assets), Section 4.24 (Affiliate Matters), Section 4.28 (Brokers, Finders and Investment Bankers), Section 5.1 (Authorization and Validity) and Section 5.2 (Absence of Restrictions and Conflicts) (collectively, “Fundamental Representations”), will be subject to a cap not to exceed the Purchase Price. Under no circumstances shall the total aggregate amount of liability of the Sellers and the Shareholders for Purchaser Losses under this Article X exceed the Purchase Price.
(b) Neither The Sellers and Shareholders expressly agree that the Single Claim Purchaser Indemnified Parties may recover from the Indemnity Escrow Amount nor on a joint and several basis all Purchaser Losses incurred pursuant to Section 10.1(a) and 10.1(b) until the Deductible Indemnity Escrow Amount is exhausted or released in accordance with the Escrow Agreement. In the event the Indemnity Escrow Amount is exhausted or has been released in accordance with the Escrow Agreement, then the Purchaser Indemnified Parties shall apply not be entitled, with respect to any Purchaser Losses Losses, to recover from a Shareholder an amount (apart from any amount previously recovered from the Indemnity Escrow Amount) in excess of the product of (i) pursuant to Section 10.1(b), Section 10.1(c), Section 10.1(d), Section 10.1(e) or Section 10.1(f), or the amount of such Purchaser Losses and (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25. The Cap shall not apply to any Purchaser Losses (i) pursuant to Section 10.1(b), Section 10.1(c), or Section 10.1(d) or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25such Shareholder’s Pro Rata Portion.
(c) Payments by an Indemnifying Party pursuant to Section 10.1 Solely for the purpose of determining the magnitude of related Losses in connection with a breach or Section 10.2 in respect inaccuracy of any Purchaser Loss representation or Shareholder Loss shall warranty under Section 10.1, each such representation or warranty should be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Indemnified Party (or the Company or any of its Subsidiaries) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses before seeking indemnification under this Agreement.
(d) In no event shall any Indemnifying Party be liable read without reference to any Indemnified Party for any punitive, incidental, exemplary, consequential, special materiality or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple (except to the extent such types of damages constitute losses to a third party as a result of any claim)Material Adverse Effect qualifications contained therein.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set ----------------- forth herein, the Purchaser Indemnified Parties shall not make a claim against the Sellers for indemnification under Section 10.01(d) for Purchaser Losses, and ---------------- the Sellers will have no liability for indemnification of any Purchaser Indemnified Party shall be indemnified by the Shareholder under this Article X for any Purchaser Losses (i) with respect pursuant to any claim unless such claim involves Purchaser Losses in excess of $75,000 (the “Single Claim Amount”) and (iiSection 10.01(a) unless and until the aggregate ---------------- Losses claimed thereunder exceed an amount equal to $250,000.00 (the "Threshold --------- Amount"), and once the aggregate amount of such Losses under Section 10.01(a) ------ ---------------- exceeds the Threshold Amount, the Purchaser Indemnified Parties will be entitled to recover all such Losses exceeds three-fourths of one percent (0.75%) of the Purchase Price (the “Deductible”), but only if such Purchaser Losses also meet the requirements of clause (i) of this Section 10.5(a), after to which the Shareholder shall only be obligated for such aggregate Purchaser Losses they are entitled in excess of the Deductible.
(a) Threshold Amount. The total aggregate amount of the liability of the Shareholder Seller for Purchaser Losses shall be limited to ten percent (10%) of the Purchase Price (the “Cap”).
(b) Neither the Single Claim Amount nor the Deductible shall apply to with respect any Purchaser Losses (i) claims made pursuant to Section 10.1(b10.01(a) other than Claims arising ---------------- under Section 4.19 (Environmental Matters) ("Environmental Claims") shall be ------------- -------------------- limited to $3,000,000.00 (the "Purchaser Cap"); provided, however, that with ------------- -------- ------- respect to Environmental Claims the Purchaser Cap shall be increased by an additional $2,000,000 to $5,000,000 (the "Environmental Cap"), Section 10.1(c), Section 10.1(d), Section 10.1(e) or Section 10.1(f), or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25. The Cap shall not apply to any Purchaser Losses (i) pursuant to Section 10.1(b), Section 10.1(c), or Section 10.1(d) or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25.
(c) Payments by an Indemnifying Party pursuant to Section 10.1 or Section 10.2 in respect of any Purchaser Loss or Shareholder Loss and the Seller ----------------- shall be limited to liable for one half (1/2) of the amount of any Environmental Claims in excess of the Environmental Cap; provided, further, that total aggregate amount -------- ------- of the liability of the Company and the Seller for Purchaser Losses arising out of fraud or damage that remains after deducting therefrom willful misconduct shall not be subject to any insurance proceeds and limits. Notwithstanding the foregoing, any indemnity, contribution or other similar payment received indemnification amounts payable by the Sellers pursuant to this Article X will be reduced by any amounts actually ---------- recovered by any Purchaser Indemnified Party (or the Company or any of its Subsidiaries) in respect of any such claim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for collateral sources with respect to such Losses and the Purchaser shall use Commercially Reasonable Efforts to collect any Losses before seeking indemnification under this Agreementsuch amounts.
(d) In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, exemplary, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple (except to the extent such types of damages constitute losses to a third party as a result of any claim).
Appears in 1 contract
Sources: Stock and Limited Partnership Interest Purchase Agreement (Charys Holding Co Inc)
Liability Limits. Notwithstanding anything to the contrary set forth herein, no Purchaser Indemnified Party shall be indemnified by the Shareholder Seller under this Article X ARTICLE 8 for any Purchaser Losses (i) and no Seller Indemnified Party shall be indemnified by the Purchaser under this ARTICLE 8 for any Seller Losses with respect to any claim Claim unless such claim Claim involves Purchaser Losses or Seller Losses, as applicable, in excess of $75,000 (the “Single Claim Amount”) and (ii) unless and until the aggregate amount of such Purchaser Losses exceeds three-fourths of one percent (0.75%) of the Purchase Price 50,000 (the “Deductible”), but only if such Purchaser Losses also meet the requirements of clause (i) of this Section 10.5(a), after which the Shareholder Seller or Purchaser, as applicable, shall only be obligated for such aggregate Purchaser Losses in excess of or Seller Losses, as applicable, from the Deductiblefirst dollar.
(a) 8.6.1 The total aggregate amount of the liability of the Shareholder Seller for Purchaser Losses pursuant to Section 8.1.1, Section 8.1.2 and Section 8.1.3 and of the Purchaser pursuant to Section 8.2.1, shall be limited to ten percent (10%) of the Purchase Price $2,000,000 (the “Cap”).
(b) 8.6.2 Neither the Single Claim Amount Deductible nor the Deductible Cap shall apply to any Purchaser Losses or Seller Losses (i) pursuant which are not expressly subject to Section 10.1(b), Section 10.1(c), Section 10.1(d), Section 10.1(e) or Section 10.1(f), the Cap; or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25. The Cap shall not apply to any Purchaser Losses (i) pursuant to Section 10.1(b), Section 10.1(c), or Section 10.1(d) or (ii) in respect of any fraud claim or any claim related to a breach of Section 4.1, Section 4.2, Section 4.3, Section 4.4, Section 4.14 or Section 4.25Claim.
(c) 8.6.3 Payments by an Indemnifying Party pursuant to Section 10.1 8.1 or Section 10.2 8.2 in respect of any Purchaser Loss or Shareholder Seller Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received by the Indemnified Party (or the Company or any of its SubsidiariesCompany) in respect of any such claimClaim. The Indemnified Party shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses before seeking indemnification under this Agreement.
(d) 8.6.4 In no event shall any Indemnifying Party be liable to any Indemnified Party for any punitive, incidental, exemplary, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple (except to the extent such types of damages constitute losses to a third party as a result of any claimClaim).
8.6.5 The amount of any indemnity obligation of any Indemnifying Party to the Indemnified Parties provided in this Agreement shall be computed net of any insurance proceeds actually received by an Indemnified Party (net of any deductible amounts, increases in premiums and costs and expenses incurred with respect to such insurance Claims) in connection with or as a result of any Claim giving rise to an indemnification Claim hereunder. If the indemnity amount is paid to the Indemnified Parties by any Indemnifying Party prior to the Indemnified Party’s actual receipt of insurance proceeds related thereto, the Indemnified Party shall, if permissible by the terms of the applicable policy, assign its right to such insurance and allow the Indemnifying Party to pursue collection of such insurance proceeds or, if such payment has been made by any of the Indemnifying Parties, and an Indemnified Party subsequently receives such insurance proceeds, then the Indemnified Party shall promptly pay to or at the direction of the Indemnifying Party the amount of such insurance proceeds subsequently received (net of all related costs, expenses and other losses), but not more, in the aggregate, than the indemnity amount paid by the Indemnifying Party. Notwithstanding the foregoing, no Indemnified Party shall be required to (i) pursue such insurance prior to seeking indemnification under this ARTICLE 8 or (ii) commence litigation to recover proceeds under such insurance policies if it is unreasonable do so.
8.6.6 No Indemnified Party shall be entitled to indemnification hereunder for any loss in respect of any Claim to the extent that (i) such loss would not have arisen but for the enactment of any legislation not in effect on the Closing Date or any change of any Law or administrative practice of any Governmental Entity after the Closing Date or any change in any generally accepted accounting principles after the Closing Date, including in each case any legislation or change which takes effect retrospectively, (ii) such loss has arisen as a result of any act or omission by the party seeking indemnification on or after the Closing Date (including without limitation resulting from any change in accounting principles, practices or methodologies) and to the extent of any loss arising from any breach by the party seeking indemnification of its obligations under this Agreement (provided such party’s breach is a principal cause or principal contributing factor to such party’s Losses related thereto), and (iii) such loss is offset by a corresponding gain accruing after the Closing Date, directly or indirectly, to the benefit of the party seeking indemnification, as a direct result of the act, matter, omission or circumstance giving rise to such loss.
Appears in 1 contract
Sources: Securities Purchase Agreement (American International Holdings Corp.)