Limitations on Claims. 7.1 The definitions and rules of interpretation in this clause apply in this agreement. CLAIM: a claim for breach of any of the Warranties. SUBSTANTIATED CLAIM: a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal. A Claim is CONNECTED with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter. 7.2 This clause limits the liability of the Sellers in relation to any Claim. 7.3 The maximum aggregate liability of each of the Sellers in respect of all Claims and any claim under the Tax Covenant shall not exceed each Seller's pro rata portion of (pound)4,450,000 in accordance with the percentage in column 3 of Schedule 1. 7.4 The Sellers are not liable for a Claim to the extent that the Claim: (a) relates to matters Disclosed; (b) relates to any matter specifically and fully provided for in the Accounts or in the Completion Accounts; (c) would not have arisen but for something voluntarily done or intentionally omitted to be done by the Buyer, the Company or their agents after Completion otherwise than in the ordinary course of the business of the Company as carried on at Completion; (d) arises as a result of the passing of or any change in law or regulation after the date of this agreement (whether retrospectively or not) or occurs or arises or, such Claim having arisen, is increased as a result of any change in any accounting or taxation policy of the Company after the date of this agreement; (e) arises as a result of any failure or omission by the Company to make any claim, election, surrender or disclaimer, or give any notice, or consent or do any other thing, in connection with the provisions of any enactment or regulation relating to Taxation after Completion, the anticipated making, giving or going of which was Disclosed by the Sellers and was taken into account in computing the provision for Taxation in the Accounts; (f) arises from an act, event omission, transaction or arrangement prior to Completion occurring at the written request of the Buyer; or (g) is actually recovered by the Buyer under the terms of any insurance policy of the Buyer or the Company (net of any additional costs incurred by the Company and/or the Buyer as a result of any consequential increase in premiums). 7.5 The Sellers are not liable for a Claim unless the Buyer has given the Sellers written notice of the Claim (giving reasonable information regarding the nature and an estimate of the value of such Claim): (a) in the case of a claim made under the Tax Warranties or the Tax Covenant, within the period of seven years beginning with the Completion Date; and (b) in the case of a non-Tax Warranty claim by 31 July 2007, (in each case such date being referred to as the "Expiry Date"). 7.6 Any Claim made before the Expiry Date in accordance with clause 7.5 shall, if it has not been previously satisfied, settled or withdrawn, be deemed to have been withdrawn and shall become fully barred and unenforceable (and the Sellers' liability in respect of such Claim shall absolutely terminate) on the expiry of the period of 6 months after notice of such Claim was given to the Sellers (or any of them) in accordance with clause 7.5, unless proceedings in respect thereof shall have been commenced against the Sellers (and for this purpose proceedings shall not be deemed to have been commenced unless they shall have been issued and validly served upon the Sellers). 7.7 The Sellers shall not be liable in respect of a Claim or group of Claims based on substantially the same facts or circumstances unless the amount that would otherwise be recoverable from the Sellers, but for this clause 7.7, in respect of the Claim exceeds (pound)2,000. 7.8 The Sellers shall not be liable in respect of any Claim unless and until the aggregate amount that would otherwise be recoverable from the Sellers, but for this clause 7.8, in respect of all Claims (after giving due effect to clause 7.7) in relation to each Claim exceeds (pound)20,000, in which event the Sellers shall be liable for the full amount of the Claim and not merely the excess over (pound)20,000. 7.9 Except where it may be prejudicial to the business interests of the Company or the Buyer, the Buyer shall at all reasonable times make available to the Sellers (at the Sellers' cost) all information and documents relating to the Claim. If requested by the Seller, the Buyer shall give the Sellers and their professional advisers access on reasonable notice to the personnel of the Buyer and/or the Company (as the case may be) and to any relevant premises, chattels, accounts, documents and records within the power, possession or control of the Buyer and/or the Company to enable the Sellers and their professional advisers to interview such personnel, and to examine such Claim, premises, chattels, accounts, documents and records and to take copies or photographs of the same at their own expense. 7.10 Where the Buyer or the Company is entitled to recover any sum from another person or firm or company in respect of any matter giving rise to a Claim under this Agreement, the Buyer shall or shall procure that the Company shall take all reasonable steps to enforce such recovery. The Buyer shall not be required to take such steps where it is of the reasonable view that any such action is prejudicial to the business interests of the Company or the Buyer. 7.11 The sole remedy against the Buyer in respect of any Claim shall be an action for damages. Save in the event of fraudulent misrepresentation, no right of rescission shall be available after Completion to the Buyer by reason of any breach of the Warranties or the Tax Covenant. 7.12 The Buyer shall reimburse to the Sellers an amount equal to any sum paid in respect of any Claim which is subsequently recovered by or paid to the Buyer or any member of the Buyer's Group or the Company by any third party less any reasonable costs incurred by the Buyer in connection with such Claim. 7.13 The amount or amounts of any successful Claim or Claims against the Sellers under or in respect of claims under the Tax Covenant (after deducting any reimbursement made pursuant to this schedule) shall be deemed to constitute a reduction in the Consideration. 7.14 Nothing herein shall in any way diminish the Buyer's or the Company's common law duty to mitigate its loss in relation to any Claim. 7.15 Any payment by the Sellers under this agreement to the Buyer shall reduce by that amount any Claims by the Buyer under the Tax Covenant (and vice versa) and the Buyer shall at all times procure that there is no duplication of any claim relating to the same subject matter whether under this agreement or under the Tax Covenant or otherwise. 7.16 Nothing in this clause 6 applies to a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Sellers, their agents or advisers.
Appears in 1 contract
Limitations on Claims. 7.1 6.1. The definitions and rules of interpretation limitations set out in this clause 6 shall not apply in this agreement. CLAIM: a claim for breach of any of the Warranties. SUBSTANTIATED CLAIM: a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal. A Claim is CONNECTED with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter.
7.2 This clause limits the liability of the Sellers in relation to any Claim.
7.3 The maximum aggregate liability of each of the Sellers in respect of all Claims and any claim under the Tax Covenant shall not exceed each Seller's pro rata portion of (pound)4,450,000 in accordance with the percentage in column 3 of Schedule 1.
7.4 The Sellers are not liable for a Claim to the extent that the Claimwhich is:
(a) relates to matters Disclosed;the consequence of fraud, dishonesty, wilful concealment or wilful misrepresentation by or on behalf of the Company; or
(b) relates a result of a breach of any Fundamental Warranty.
6.2. No Claim may be made by an Investor against the Company unless written notice of such Claim is served by such Investor on the Company, giving reasonable details of the Claim, on or prior to the earlier of within the 12 month period after the Execution Date.
6.3. The aggregate liability of the Company in respect of all and any Claims shall be limited to an amount equal to the aggregate amount subscribed for the New Shares and Warrants by the Investor pursuant to this agreement.
6.4. Without prejudice to the overall cap set out in clause 6.3 above, in respect of any Claim(s) that is or are brought by only some Investors, the aggregate liability of the Company in respect of all such Claims shall be limited to an amount equal to the aggregate amount subscribed for the New Shares pursuant to this agreement by those Investors bringing the Claim(s).
6.5. No liability of the Company in respect of any breach of any Warranty shall arise:
(a) to the extent that such breach occurs by reason of any matter specifically and fully provided for in the Accounts or in the Completion Accounts;
(c) which would not have arisen but for something voluntarily done the coming into force of any legislation not in force at the Execution Date or intentionally omitted by reason of any change to be done by existing legislation, HMRC’s practice (or that of any other relevant Taxing Authority) or in rates of Taxation occurring after the Buyer, the Company or their agents after Completion otherwise than in the ordinary course of the business of the Company as carried on at Completion;Execution Date; and/or
(db) to the extent that such breach or claim arises as a result of the passing of or any change in law or regulation after the date of this agreement (whether retrospectively or not) or occurs or arises or, such Claim having arisen, is increased as a result of any change in the accounting bases or policies in accordance with which the Company values its assets or calculate its liabilities or any other change in accounting practice from the treatment or taxation policy application of the Company after same used in preparing the date of this agreement;
Accounts (e) arises as a result of any failure save to the extent that such changes are required to correct errors or omission by the Company to make any claim, election, surrender or disclaimer, or give any notice, or consent or do any other thing, in connection with the provisions of any enactment or regulation relating to Taxation after Completion, the anticipated making, giving or going of which was Disclosed by the Sellers and was taken into account in computing the provision for Taxation in the Accounts;
(f) arises from an act, event omission, transaction or arrangement prior to Completion occurring at the written request of the Buyer; or
(g) is actually recovered by the Buyer under the terms of any insurance policy of the Buyer or the Company (net of any additional costs incurred by the Company and/or the Buyer as a result of any consequential increase in premiumsbecause relevant generally accepted accounting principles have not been complied with).
7.5 6.6. The Sellers are not liable for Investors shall be entitled to make a Claim unless the Buyer has given the Sellers in respect of liability which is contingent or unascertained provided that written notice of the Claim (giving reasonable information regarding as far as practical the nature amount and an estimate details of the value of Claim) is given by such Claim):
(a) in Investors to the case of a claim made under the Tax Warranties or the Tax Covenant, within the period of seven years beginning with the Completion Date; and
(b) in the case of a non-Tax Warranty claim by 31 July 2007, (in each case such date being referred to as the "Expiry Date").
7.6 Any Claim made Company before the Expiry Date expiry of the relevant period specified in accordance with clause 7.5 shall, if it has not been previously satisfied, settled or withdrawn, be deemed to have been withdrawn and shall become fully barred and unenforceable (6.2 and the Sellers' liability Company shall not be liable to make any payment in respect of such Claim shall absolutely terminate) on the expiry of the period of 6 months after notice of such Claim was given to the Sellers (or any of them) in accordance with clause 7.5, unless proceedings in respect thereof shall have been commenced against the Sellers (and for this purpose proceedings shall not be deemed to have been commenced unless they shall have been issued and validly served upon the Sellers).
7.7 The Sellers shall not be liable in respect of a Claim or group of Claims based on substantially the same facts or circumstances unless the amount that would otherwise be recoverable from the Sellers, but for this clause 7.7, in respect of the Claim exceeds (pound)2,000.
7.8 The Sellers shall not be liable in respect of any Claim unless and until the aggregate amount that would otherwise be recoverable from the Sellers, but for this clause 7.8, in respect of all Claims (after giving due effect to clause 7.7) in relation to each Claim exceeds (pound)20,000, in which event the Sellers shall be liable for the full amount of the Claim and not merely the excess over (pound)20,000.
7.9 Except where it may be prejudicial to the business interests of the Company liability becomes an actual liability or the Buyer, the Buyer shall at all reasonable times make available to the Sellers (at the Sellers' cost) all information and documents relating to the Claim. If requested by the Seller, the Buyer shall give the Sellers and their professional advisers access on reasonable notice to the personnel of the Buyer and/or the Company (as the case may be) and to any relevant premises, chattels, accounts, documents and records within the power, possession or control becomes capable of the Buyer and/or the Company to enable the Sellers and their professional advisers to interview such personnel, and to examine such Claim, premises, chattels, accounts, documents and records and to take copies or photographs of the same at their own expensebeing quantified.
7.10 Where 6.7. Notwithstanding anything to the Buyer contrary in this agreement, except in the case of fraud or the Company is entitled to recover any sum from another person or firm or company in respect of any matter giving rise to a Claim under this Agreementwillful misconduct, the Buyer shall or shall procure that the Company shall take all reasonable steps to enforce such recovery. The Buyer shall not be required obligated to take such steps where it is of indemnify any Indemnified Person under clause 5.7, unless the reasonable view that any such action is prejudicial to the business interests of the Company or the Buyer.
7.11 The sole remedy against the Buyer in respect of any Claim shall be an action for damages. Save in the event of fraudulent misrepresentation, no right of rescission shall be available after Completion to the Buyer by reason of any breach of the Warranties or the Tax Covenant.
7.12 The Buyer shall reimburse to the Sellers an amount equal to any sum paid in respect of any Claim which is subsequently recovered by or paid to the Buyer or any member of the Buyer's Group or the Company by any third party less any reasonable costs aggregate Losses incurred by the Buyer in connection with such Claim.
7.13 The amount or amounts of any successful Claim or Claims against the Sellers under or in respect of claims under the Tax Covenant (after deducting any reimbursement made pursuant to this schedule) shall be deemed to constitute a reduction in the Consideration.
7.14 Nothing herein shall in any way diminish the Buyer's or the Company's common law duty to mitigate its loss in relation to any Claim.
7.15 Any payment by the Sellers under this agreement to the Buyer shall reduce by that amount any Claims by the Buyer under the Tax Covenant (and vice versa) and the Buyer shall at all times procure that there is no duplication of any claim relating to the same subject matter whether under this agreement or under the Tax Covenant or otherwise.
7.16 Nothing in this clause 6 applies to a Claim that arises or is delayed Indemnified Person seeking indemnity as a result of dishonestyall Losses that would otherwise be subject to indemnification under clause 5.7 exceeds US$100,000, fraudin which case such Indemnified Person shall only be entitled to indemnification for the portion of its Losses that exceeds US$100,000.
6.8. Notwithstanding anything in this Agreement to the contrary, wilful misconduct for purposes of determining whether an Indemnified Person is entitled to indemnification under clause 5.7, as well as the amount of Losses recoverable by an Indemnified Person pursuant to clause 5.7, each of the qualifications as to “material”, “materiality” or wilful concealment by “material adverse effect” and words of similar import (other than specific monetary thresholds) in the Sellers, their agents terms of such warranties listed on Schedule 5 shall be disregarded.
6.9. Nothing in this agreement shall prejudice an Investor’s duty under common law to mitigate any loss or advisersliability which is the subject of a Claim.
Appears in 1 contract
Sources: Subscription Agreement (Inflection Point Acquisition Corp. III)
Limitations on Claims. 7.1 The definitions and rules of interpretation in this clause apply in this agreement. CLAIM: a claim for breach of any of the Warranties. SUBSTANTIATED CLAIM: a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal. 9.1 A Claim is CONNECTED connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter.
7.2 9.2 This clause limits the liability of the Sellers in relation to claims under this Agreement.
9.3 Subject as provided in clause 11.6, the liability of:
(a) each Seller (whether in his capacity as Seller, Covenantor or Warrantor) for all claims pursuant to the terms of this Agreement when taken together shall not exceed that Seller’s Seller Proportion of the Purchase Price (calculated, in respect of any particular such claim as though that claim had not reduced the Purchase Price as contemplated by clause 7.3);
(b) subject always to clause 9.3(a), each Seller for any individual claim pursuant to the terms of clause:
(i) 7.1(a) of this Agreement shall not exceed that Seller’s Seller Proportion in respect of such claim; and
(ii) 7.1(b) of this Agreement shall not exceed that Seller’s Covenantor Proportion in respect of such claim;
(c) subject always to clause 9.3(a), each Warrantor for any individual Claim pursuant to the terms of clause 8.3 and any individual Tax Claim shall not:
(i) in the case of a Claim where a payment is received by the Buyer in respect of such Claim (and to the extent of such payment) from the Escrow Account, exceed that Warrantor’s Seller Proportion in respect of such Claim or Tax Claim; and
(ii) in the case of a Claim where no payment is received by the Buyer in respect of such Claim from the Escrow Account or, to the extent of any balance where any such payment is insufficient to satisfy the liability in respect of such Claim in full, exceed that Warrantor’s Warrantor Proportion in respect of such Claim or Tax Claim.
7.3 9.4 The maximum aggregate liability Sellers shall not be liable for a Claim unless:
(a) the amount of a Claim, or of a series of connected Claims of which that Claim is one (in each of case excluding the Sellers in respect costs and interest associated with such Claim), exceeds £635;
(b) the amount of all Claims (excluding the costs and interest associated with such Claim) exceeds £160,000 in which case the whole amount (and not just the amount by which the limit in this clause 9.4(b) is exceeded) is recoverable by the Buyer provided that this clause 9.4 shall not apply to any claim under the Tax Covenant shall not exceed each Seller's pro rata portion Indemnity or under any of (pound)4,450,000 the Warranties expressed in accordance with the percentage in column 3 paragraphs 1 and 2.1 of Schedule 14 below.
7.4 The 9.5 No claim shall be made by the Buyer against the Sellers and the Sellers are not liable for any Claim other than a Tax Claim (Tax Claims shall for the avoidance of doubt be subject to the provisions of clause 13):
(a) to the extent that allowance, provision or reserve was made in the Claim:
(a) relates Accounts or Completion Accounts in respect of the matter giving rise to matters Disclosed;the Claim or otherwise taken into account in their preparation; or
(b) relates the facts and circumstances giving rise to any matter specifically and fully provided for the Claim were:
(i) Disclosed; or
(ii) disclosed in this Agreement or done in the Accounts or in the Completion Accounts;proper execution and performance of this Agreement; or
(c) would not have arisen but for something voluntarily done to the extent that it occurs or intentionally omitted to be done liability is increased as a result of:
(i) an act, omission or transaction done, made or carried out by the Buyer, Buyer or the Company or their agents after Completion otherwise than in outside the ordinary course of the Company’s business save where such act, omission or transaction was required by law or was pursuant to a legally binding commitment of the Company as created on or before Completion and save where such act, omission or transaction was carried out by one or more Sellers on at Completion;the Company’s behalf acting outside the scope of authority of the relevant Seller(s); or
(dii) arises a change in the accounting reference date of the Company from 31 July; or
(iii) a change in the accounting or Taxation policies or practices of the Company (including the method of submitting Taxation returns and the treatment of timing differences for accounting or Taxation purposes) introduced or having effect after Completion (except where the change is necessary as a result of incorrect policies having been adopted by the passing Company prior to Completion); or
(iv) any legislation not in force at the date of this Agreement or any change in of law or regulation administrative practice (including, in each case, in relation to Taxation) which comes into force after the date of this agreement Agreement; or
(whether retrospectively v) any winding up or not) or occurs or arises or, such Claim having arisen, is increased as a result cessation after Completion of any change in any accounting trade or taxation policy business carried on by the Company save where such winding up or cessation is caused by the subject matter of one or more claims under the Warranties and/or the Tax Covenant; or
(vi) the failure of the Company after the date of Buyer to comply with its obligations under this agreement;clause 9; or
(d) which is contingent only unless and until such contingent liability becomes an actual liability and is due and payable; or
(e) arises as a result of any failure or omission by if and to the Company to make any claim, election, surrender or disclaimer, or give any notice, or consent or do any other thing, extent that:
(i) the loss in connection with the provisions of any enactment or regulation relating to Taxation after Completion, the anticipated making, giving or going respect of which was Disclosed by the Sellers and was taken into account in computing the provision for Taxation in the Accounts;
(f) arises from an act, event omission, transaction or arrangement prior to Completion occurring at the written request Claim is made is recovered under a policy of the Buyerinsurance; or
(gii) is actually recovered by the Company or the Buyer under has recovered from any third party any sum in respect of loss, damage or liability in respect of which the terms claim is made in each case after deducting from such insurance recovery or sum all reasonable and properly incurred costs associated with its recovery, including without limitation any Taxation in respect of any insurance policy of the Buyer or the Company (net of any additional costs incurred by the Company and/or the Buyer as a result of any consequential increase in premiumsit).
7.5 9.6 The Sellers are not liable for a Claim unless the Buyer has given the Sellers written Sellers’ Representative notice in writing of the Claim, summarising in reasonable detail the nature of the Claim (giving reasonable information regarding as far as it is known to the nature Buyer and an estimate of the value of such Claim):amount claimed:
(a) in the case of a claim made under Tax Claim, within the period of five years beginning with the Completion Date (other than claims arising out of the deliberate or careless conduct of the Company);
(b) in the case of a Tax Warranties Claim which arises out of the deliberate or careless conduct of the Tax CovenantCompany, within the period of seven years beginning with the Completion Date; and
(bc) in the case of a non-Tax Warranty claim by any other case, on or before 31 July 2007, (in each case such date being referred to as the "Expiry Date")March 2015.
7.6 Any Claim made before the Expiry Date in accordance with 9.7 Subject to clause 7.5 shall13.20, if it has not been previously satisfied, settled or withdrawn, be deemed to have been withdrawn and the Buyer shall become fully barred and unenforceable (and the Sellers' aware of any fact or circumstance which is likely to give rise to a liability in respect of such Claim shall absolutely terminate) on the expiry any of the period of 6 months after notice of such Claim was given to Sellers under the Sellers (or any of them) in accordance with clause 7.5, unless proceedings in respect thereof shall have been commenced against the Sellers Warranties (and for this purpose proceedings the limitations on liability at clause 9.4 shall not be deemed ignored) the Buyer shall as soon as reasonably practicable (and in any event within 15 Business Days of becoming so aware) give written notice of it to have been commenced unless they shall have been issued and validly served upon the Sellers).
7.7 The Sellers shall not be liable ’ Representative, specifying (in respect of a Claim reasonable detail with supporting evidence) the event, matter or group of Claims based on substantially the same facts or circumstances unless the amount that would otherwise be recoverable from the Sellers, but for this clause 7.7, in respect of the Claim exceeds (pound)2,000.
7.8 The Sellers shall not be liable in respect of any Claim unless and until the aggregate amount that would otherwise be recoverable from the Sellers, but for this clause 7.8, in respect of all Claims (after giving due effect default which gives rise to clause 7.7) in relation to each Claim exceeds (pound)20,000, in which event the Sellers shall be liable for the full amount of the Claim and not merely the excess over (pound)20,000.
7.9 Except where it may be prejudicial to the business interests Buyer’s best estimate of the Company or amount to be claimed and after that shall keep the Buyer, Sellers’ Representative informed of all material developments and communications relating to it and the Buyer shall agrees to give the Sellers’ Representative and his professional advisers reasonable access at all any reasonable times make available to the Sellers (at the Sellers' cost) all information and documents relating to the Claim. If requested by the Seller, the Buyer shall give the Sellers and their professional advisers access on reasonable advance notice to the premises and personnel of the Buyer and/or and the Company (as the case may be) and to any relevant premises, chattels, accounts, documents and records which are relevant to such claim and are within the power, possession power or control of the Buyer and/or or the Company (“Relevant Assets”) so as to enable the Sellers Sellers’ Representative and their his professional advisers to interview such personnel, and to examine such Claim, premises, chattels, accounts, documents and records and to take copies or photographs of the same at their own expense.
7.10 Where expense Provided always that the Buyer or access to personnel and Relevant Assets granted to the Company is entitled to recover any sum from another person or firm or company in respect of any matter giving rise to a Claim Sellers’ Representative and his professional advisers under this Agreement, the Buyer clause 9.7 shall or shall procure that the Company shall take all be subject to such reasonable steps to enforce such recovery. The Buyer shall not conditions concerning confidentiality and timing as may be required to take such steps where it is of the reasonable view that any such action is prejudicial to the business interests of the Company or by the Buyer.
7.11 The sole remedy against the Buyer in respect of any 9.8 Any Claim that may have been made shall be an action for damages. Save in the event of fraudulent misrepresentation(if it has not been previously satisfied, no right of rescission shall be available after Completion to the Buyer by reason of any breach of the Warranties settled or the Tax Covenant.
7.12 The Buyer shall reimburse to the Sellers an amount equal to any sum paid in respect of any Claim which is subsequently recovered by or paid to the Buyer or any member of the Buyer's Group or the Company by any third party less any reasonable costs incurred by the Buyer in connection with such Claim.
7.13 The amount or amounts of any successful Claim or Claims against the Sellers under or in respect of claims under the Tax Covenant (after deducting any reimbursement made pursuant to this schedulewithdrawn) shall be deemed to constitute a reduction in have been waived or withdrawn on the Consideration.expiration of 9 months after the latest of:
7.14 Nothing herein shall in any way diminish (a) the Buyer's or date it was notified under clause 9.6;
(b) the Company's common law duty to mitigate its loss in relation to any Claim.
7.15 Any payment by date on which the Sellers under this agreement to aggregate amount of all single claims exceeds the Buyer shall reduce by that amount any Claims by the Buyer under the Tax Covenant (and vice versa) and the Buyer shall set out at all times procure that there is no duplication of any claim relating to the same subject matter whether under this agreement or under the Tax Covenant or otherwise.
7.16 Nothing in this clause 6 applies to a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Sellers, their agents or advisers.9.4
Appears in 1 contract
Sources: Share Purchase Agreement (Columbia Laboratories Inc)
Limitations on Claims. 7.1 6.1. The definitions and rules of interpretation limitations set out in this clause 6 shall not apply in this agreement. CLAIM: a claim for breach of any of the Warranties. SUBSTANTIATED CLAIM: a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal. A Claim is CONNECTED with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter.
7.2 This clause limits the liability of the Sellers in relation to any Claim.
7.3 The maximum aggregate liability of each of the Sellers in respect of all Claims and any claim under the Tax Covenant shall not exceed each Seller's pro rata portion of (pound)4,450,000 in accordance with the percentage in column 3 of Schedule 1.
7.4 The Sellers are not liable for a Claim to the extent that the Claimwhich is:
(a) relates to matters Disclosed;the consequence of fraud, dishonesty, wilful concealment or wilful misrepresentation by or on behalf of the Company; or
(b) relates a result of a breach of any Fundamental Warranty.
6.2. No Claim may be made by an Investor against the Company unless written notice of such Claim is served by such Investor on the Company, giving reasonable details of the Claim, on or prior to the earlier of within the 12 month period after Completion.
6.3. The aggregate liability of the Company in respect of all and any Claims shall be limited to an amount equal to the aggregate amount subscribed for the New Shares and Warrants by the Investor pursuant to this agreement.
6.4. Without prejudice to the overall cap set out in clause 6.3 above, in respect of any Claim(s) that is or are brought by only some Investors, the aggregate liability of the Company in respect of all such Claims shall be limited to an amount equal to the aggregate amount subscribed for the New Shares pursuant to this agreement by those Investors bringing the Claim(s).
6.5. No liability of the Company in respect of any breach of any Warranty shall arise:
(a) to the extent that such breach occurs by reason of any matter specifically and fully provided for in the Accounts or in the Completion Accounts;
(c) which would not have arisen but for something voluntarily done the coming into force of any legislation not in force at the Execution Date or intentionally omitted by reason of any change to be done by existing legislation, HMRC’s practice (or that of any other relevant Taxing Authority) or in rates of Taxation occurring after the Buyer, the Company or their agents after Completion otherwise than in the ordinary course of the business of the Company as carried on at Completion;Execution Date; and/or
(db) to the extent that such breach or claim arises as a result of the passing of or any change in law or regulation after the date of this agreement (whether retrospectively or not) or occurs or arises or, such Claim having arisen, is increased as a result of any change in the accounting bases or policies in accordance with which the Company values its assets or calculate its liabilities or any other change in accounting practice from the treatment or taxation policy application of the Company after same used in preparing the date of this agreement;
Accounts (e) arises as a result of any failure save to the extent that such changes are required to correct errors or omission by the Company to make any claim, election, surrender or disclaimer, or give any notice, or consent or do any other thing, in connection with the provisions of any enactment or regulation relating to Taxation after Completion, the anticipated making, giving or going of which was Disclosed by the Sellers and was taken into account in computing the provision for Taxation in the Accounts;
(f) arises from an act, event omission, transaction or arrangement prior to Completion occurring at the written request of the Buyer; or
(g) is actually recovered by the Buyer under the terms of any insurance policy of the Buyer or the Company (net of any additional costs incurred by the Company and/or the Buyer as a result of any consequential increase in premiumsbecause relevant generally accepted accounting principles have not been complied with).
7.5 6.6. The Sellers are not liable for Investors shall be entitled to make a Claim unless the Buyer has given the Sellers in respect of liability which is contingent or unascertained provided that written notice of the Claim (giving reasonable information regarding as far as practical the nature amount and an estimate details of the value of Claim) is given by such Claim):
(a) in Investors to the case of a claim made under the Tax Warranties or the Tax Covenant, within the period of seven years beginning with the Completion Date; and
(b) in the case of a non-Tax Warranty claim by 31 July 2007, (in each case such date being referred to as the "Expiry Date").
7.6 Any Claim made Company before the Expiry Date expiry of the relevant period specified in accordance with clause 7.5 shall, if it has not been previously satisfied, settled or withdrawn, be deemed to have been withdrawn and shall become fully barred and unenforceable (6.2 and the Sellers' liability Company shall not be liable to make any payment in respect of such Claim shall absolutely terminate) on the expiry of the period of 6 months after notice of such Claim was given to the Sellers (or any of them) in accordance with clause 7.5, unless proceedings in respect thereof shall have been commenced against the Sellers (and for this purpose proceedings shall not be deemed to have been commenced unless they shall have been issued and validly served upon the Sellers).
7.7 The Sellers shall not be liable in respect of a Claim or group of Claims based on substantially the same facts or circumstances unless the amount that would otherwise be recoverable from the Sellers, but for this clause 7.7, in respect of the Claim exceeds (pound)2,000.
7.8 The Sellers shall not be liable in respect of any Claim unless and until the aggregate amount that would otherwise be recoverable from the Sellers, but for this clause 7.8, in respect of all Claims (after giving due effect to clause 7.7) in relation to each Claim exceeds (pound)20,000, in which event the Sellers shall be liable for the full amount of the Claim and not merely the excess over (pound)20,000.
7.9 Except where it may be prejudicial to the business interests of the Company liability becomes an actual liability or the Buyer, the Buyer shall at all reasonable times make available to the Sellers (at the Sellers' cost) all information and documents relating to the Claim. If requested by the Seller, the Buyer shall give the Sellers and their professional advisers access on reasonable notice to the personnel of the Buyer and/or the Company (as the case may be) and to any relevant premises, chattels, accounts, documents and records within the power, possession or control becomes capable of the Buyer and/or the Company to enable the Sellers and their professional advisers to interview such personnel, and to examine such Claim, premises, chattels, accounts, documents and records and to take copies or photographs of the same at their own expensebeing quantified.
7.10 Where 6.7. Notwithstanding anything to the Buyer contrary in this agreement, except in the case of fraud or the Company is entitled to recover any sum from another person or firm or company in respect of any matter giving rise to a Claim under this Agreementwillful misconduct, the Buyer shall or shall procure that the Company shall take all reasonable steps to enforce such recovery. The Buyer shall not be required obligated to take such steps where it is of indemnify any Indemnified Person under clause 5.7, unless the reasonable view that any such action is prejudicial to the business interests of the Company or the Buyer.
7.11 The sole remedy against the Buyer in respect of any Claim shall be an action for damages. Save in the event of fraudulent misrepresentation, no right of rescission shall be available after Completion to the Buyer by reason of any breach of the Warranties or the Tax Covenant.
7.12 The Buyer shall reimburse to the Sellers an amount equal to any sum paid in respect of any Claim which is subsequently recovered by or paid to the Buyer or any member of the Buyer's Group or the Company by any third party less any reasonable costs aggregate Losses incurred by the Buyer in connection with such Claim.
7.13 The amount or amounts of any successful Claim or Claims against the Sellers under or in respect of claims under the Tax Covenant (after deducting any reimbursement made pursuant to this schedule) shall be deemed to constitute a reduction in the Consideration.
7.14 Nothing herein shall in any way diminish the Buyer's or the Company's common law duty to mitigate its loss in relation to any Claim.
7.15 Any payment by the Sellers under this agreement to the Buyer shall reduce by that amount any Claims by the Buyer under the Tax Covenant (and vice versa) and the Buyer shall at all times procure that there is no duplication of any claim relating to the same subject matter whether under this agreement or under the Tax Covenant or otherwise.
7.16 Nothing in this clause 6 applies to a Claim that arises or is delayed Indemnified Person seeking indemnity as a result of dishonestyall Losses that would otherwise be subject to indemnification under clause 5.7 exceeds US$100,000, fraudin which case such Indemnified Person shall only be entitled to indemnification for the portion of its Losses that exceeds US$100,000.
6.8. Notwithstanding anything in this Agreement to the contrary, wilful misconduct for purposes of determining whether an Indemnified Person is entitled to indemnification under clause 5.7, as well as the amount of Losses recoverable by an Indemnified Person pursuant to clause 5.7, each of the qualifications as to “material”, “materiality” or wilful concealment by “material adverse effect” and words of similar import (other than specific monetary thresholds) in the Sellers, their agents terms of such warranties listed on Schedule 4 shall be disregarded.
6.9. Nothing in this agreement shall prejudice an Investor’s duty under common law to mitigate any loss or advisersliability which is the subject of a Claim.
Appears in 1 contract
Sources: Subscription Agreement (Inflection Point Acquisition Corp. III)
Limitations on Claims. 7.1 6.1 The definitions and rules of interpretation in this clause apply in this agreement. CLAIM: a claim for breach of any aggregate liability of the Warranties. SUBSTANTIATED CLAIM: Seller for all Claims shall not exceed an amount equal to the Purchase Price.
6.2 The Seller shall not be liable for a Claim unless notice in writing of the Claim, summarising the nature of the Claim (in so far as it is known to the Buyer) and, as far as is reasonably practicable, the amount claimed, has been given by or on behalf of the Buyer to the Seller on or before the third anniversary of Completion and the Seller has not remedied the Claim, to the extent that it is reasonably capable of remedy, within 20 Business Days.
6.3 The Seller shall have no liability in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal. A Claim is CONNECTED with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter.
7.2 This clause limits the liability of the Sellers in relation to any Claim.
7.3 The maximum aggregate liability of each of the Sellers in respect of all Claims and any claim under the Tax Covenant shall not exceed each Seller's pro rata portion of (pound)4,450,000 in accordance with the percentage in column 3 of Schedule 1.
7.4 The Sellers are not liable for a Claim to the extent that the Claim:
Claim is not previously satisfied, withdrawn or settled, unless legal proceedings in respect of any such Claim have been issued and served within six (a6) relates to matters Disclosed;
(b) relates to any matter specifically and fully provided for in the Accounts or in the Completion Accounts;
(c) would not have arisen but for something voluntarily done or intentionally omitted to be done by the Buyer, the Company or their agents after Completion otherwise than in the ordinary course of the business of the Company as carried on at Completion;
(d) arises as a result of the passing of or any change in law or regulation months after the date of this agreement (whether retrospectively or not) or occurs or arises oron which the notice referred to in clause 6.2 is given provided that, such Claim having arisen, is increased as a result of any change in any accounting or taxation policy of the Company after the date of this agreement;
(e) arises as a result of any failure or omission by the Company to make any claim, election, surrender or disclaimer, or give any notice, or consent or do any other thing, in connection with the provisions of any enactment or regulation relating to Taxation after Completion, the anticipated making, giving or going of which was Disclosed by the Sellers and was taken into account in computing the provision for Taxation in the Accounts;
(f) arises from an act, event omission, transaction or arrangement prior to Completion occurring at the written request of the Buyer; or
(g) is actually recovered by the Buyer under the terms of any insurance policy of the Buyer or the Company (net of any additional costs incurred by the Company and/or the Buyer as a result of any consequential increase in premiums).
7.5 The Sellers are not liable for a Claim unless the Buyer has given the Sellers written notice of the Claim (giving reasonable information regarding the nature and an estimate of the value of such Claim):
(a) in the case of a claim made under contingent liability, the Tax Warranties or the Tax Covenant, within the six (6) month period of seven years beginning with the Completion Date; and
(b) in the case of a non-Tax Warranty claim by 31 July 2007, (in each case such date being referred to as the "Expiry Date").
7.6 Any Claim made before the Expiry Date in accordance with clause 7.5 shall, if it has not been previously satisfied, settled or withdrawn, be deemed to have been withdrawn and shall become fully barred and unenforceable (and the Sellers' liability in respect of such Claim shall absolutely terminate) commence on the expiry date that the relevant contingent liability becomes an actual liability and is due and payable. For the purposes of the period of 6 months after notice of such Claim was given to the Sellers (or any of them) in accordance with clause 7.5this clause, unless proceedings in respect thereof shall have been commenced against the Sellers (and for this purpose legal proceedings shall not be deemed to have been commenced started unless they shall have been a statement of claim is both properly issued and validly served upon on the Sellers)Seller.
7.7 6.4 The Sellers Seller shall not be liable in respect of a for any Claim or group of Claims based on substantially if and to the same facts or circumstances unless the amount extent that would otherwise be recoverable from the Sellers, but for this clause 7.7, in respect of the Claim exceeds has arisen as a result of:
(pound)2,000.
7.8 The Sellers shall not be liable in respect a) any act, omission or transaction of any Claim unless and until the aggregate amount that would otherwise be recoverable from the Sellers, but for this clause 7.8, in respect of all Claims (after giving due effect to clause 7.7) in relation to each Claim exceeds (pound)20,000, in which event the Sellers shall be liable for the full amount of the Claim and not merely the excess over (pound)20,000.
7.9 Except where it may be prejudicial to the business interests of the Company or the Buyer, the Buyer shall at all reasonable times make available to the Sellers (at the Sellers' cost) all information and documents relating to the Claim. If requested by the Seller, the Buyer shall give the Sellers and their professional advisers access on reasonable notice to the personnel of the Buyer and/or the Company (as the case may be) and to any relevant premises, chattels, accounts, documents and records within the power, possession or control of the Buyer and/or the Company to enable the Sellers and their professional advisers to interview such personnel, and to examine such Claim, premises, chattels, accounts, documents and records and to take copies or photographs of the same at their own expense.
7.10 Where the Buyer or the Company is entitled to recover any sum from another person or firm or company in respect of any matter giving rise to a Claim under this Agreement, the Buyer shall or shall procure that the Company shall take all reasonable steps to enforce such recovery. The Buyer shall not be required to take such steps where it is of the reasonable view that any such action is prejudicial to the business interests of the Company or the Buyer.
7.11 The sole remedy against the Buyer in respect of any Claim shall be an action for damages. Save in the event of fraudulent misrepresentation, no right of rescission shall be available after Completion to the Buyer by reason of any breach of the Warranties or the Tax Covenant.
7.12 The Buyer shall reimburse to the Sellers an amount equal to any sum paid in respect of any Claim which is subsequently recovered by or paid to the Buyer or any member of the Buyer's Group or, after Completion, any of the Group Companies; or
(b) the passing of, or any change in, after the Company by date of this Agreement, any third party less applicable law including (without prejudice to the generality of the foregoing) any reasonable costs incurred by increase in the Buyer rates of tax or any imposition of tax or any withdrawal of relief from tax not actually (or prospectively) in connection with such Claimeffect at the date of this Agreement;
(c) any change after the date of this Agreement of any generally accepted interpretation or application of any legislation; or
(d) any change after the date of this Agreement of any generally accepted accounting principles, procedure or practice.
7.13 6.5 The amount Buyer shall not be entitled to recover damages or amounts of any successful Claim obtain payment, reimbursement, restitution or Claims against the Sellers under or indemnity more than once in respect of claims the same Losses under the Tax Covenant (after deducting this Agreement or any reimbursement made pursuant other document referred to in this schedule) Agreement.
6.6 Nothing in this Agreement or any other document shall be deemed to constitute a reduction in relieve or abrogate the Consideration.
7.14 Nothing herein shall in any way diminish the Buyer's or the Company's Buyer of its common law duty to mitigate its loss in relation to any Claimlosses.
7.15 Any payment by the Sellers under this agreement to the Buyer shall reduce by that amount any Claims by the Buyer under the Tax Covenant (and vice versa) and the Buyer shall at all times procure that there is no duplication of any claim relating to the same subject matter whether under this agreement or under the Tax Covenant or otherwise.
7.16 6.7 Nothing in this clause 6 applies to exclude or limit the Seller's liability if and to the extent that a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Sellers, their Seller (or the Seller's agents or advisers).
Appears in 1 contract
Sources: Share Purchase Agreement (Caledonia Mining Corp PLC)
Limitations on Claims. 7.1 (1) The definitions Purchaser acknowledges to and rules of interpretation in this clause apply in this agreement. CLAIM: a claim for breach of any of the Warranties. SUBSTANTIATED CLAIM: a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal. A Claim is CONNECTED with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter.
7.2 This clause limits the liability of the Sellers in relation to any Claim.
7.3 The maximum aggregate liability of each of the Sellers in respect of all Claims and any claim under the Tax Covenant shall not exceed each Seller's pro rata portion of (pound)4,450,000 in accordance agrees with the percentage in column 3 of Schedule 1.
7.4 The Sellers are not liable for a Claim to the extent that the ClaimSeller that:
(a) relates to matters Disclosedthe Warranties are the only warranties or other assurances of any kind given by or on behalf of the Seller or any member of the Remaining Group and on which the Purchaser may rely in entering into and performing this agreement;
(b) relates to no other statement, promise or forecast made by or on behalf of the Seller or any matter specifically and fully provided for other member of the Remaining Group may be relied on or form the basis of, or be pleaded in connection with, any claim by the Accounts Purchaser under or in the Completion Accountsconnection with this agreement;
(c) would not have arisen but for something voluntarily done or intentionally omitted to be done any claim by the BuyerPurchaser under or in connection with this agreement (a "Claim"), other than a claim under the Company or their agents after Completion otherwise than Tax Deed save to the extent expressly provided to the contrary in this agreement, shall be subject to the ordinary course following provisions of the business of the Company as carried on at Completion;this clause; and
(d) arises as a result at the time of entering into this agreement it has no actual knowledge, by virtue of the passing of or any change in law or regulation after the date of this agreement (whether retrospectively or not) or occurs or arises or, such Claim having arisen, is increased as a result knowledge of any change of its directors, including ▇▇▇ ▇▇▇▇▇, or of ▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇'▇▇▇▇▇ or by virtue of reports, information and advice given by its advisers involved in the Purchaser's due diligence in connection with, and the negotiation of, this agreement, of any accounting or taxation policy matter which, upon entering into this agreement, would constitute a breach of the Company after the date of this agreement;Warranties.
(e2) arises as a result of any failure or omission by the Company to make any claim, election, surrender or disclaimer, or give any notice, or consent or do any other thing, in connection with the provisions of any enactment or regulation relating to Taxation after Completion, the anticipated making, giving or going of which was Disclosed by the Sellers and was taken into account in computing the provision for Taxation in the Accounts;
(f) arises from an act, event omission, transaction or arrangement prior to Completion occurring at the written request The liability of the Buyer; or
(g) is actually recovered by the Buyer under the terms of any insurance policy of the Buyer or the Company (net of any additional costs incurred by the Company and/or the Buyer Seller shall be limited as a result of any consequential increase in premiums).
7.5 The Sellers are not liable for a Claim unless the Buyer has given the Sellers written notice of the Claim (giving reasonable information regarding the nature and an estimate of the value of such Claim):follows:
(a) in the case of a claim made under the Tax Warranties or the Tax Covenant, within the period of seven years beginning with the Completion Date; and
(b) in the case of a non-Tax Warranty claim by 31 July 2007, (in each case such date being referred to as the "Expiry Date").
7.6 Any Claim made before the Expiry Date in accordance with clause 7.5 shall, if it has not been previously satisfied, settled or withdrawn, be deemed to have been withdrawn and shall become fully barred and unenforceable (and the Sellers' liability in respect of such Claim shall absolutely terminate) on the expiry of the period of 6 months after notice of such Claim was given to the Sellers (or any of them) in accordance with clause 7.5, unless proceedings in respect thereof shall have been commenced against the Sellers (and for this purpose proceedings shall not be deemed to have been commenced unless they shall have been issued and validly served upon the Sellers).
7.7 The Sellers shall not be liable in respect of a Claim or group of Claims based on substantially the same facts or circumstances unless the amount that would otherwise be recoverable from the Sellers, but for this clause 7.7, in respect of the Claim exceeds (pound)2,000.
7.8 The Sellers Seller shall not be liable in respect of any Claim unless breach of this agreement if and until to the aggregate extent that the matter giving rise to the breach is recovered under the Tax Deed;
(b) there shall be disregarded for all purposes including but not limited to paragraph (c) below any breach of this agreement in respect of which the amount that of the damages to which the Purchaser would otherwise be recoverable from entitled is less than (Pounds)100,000;
(c) the Sellers, but for this clause 7.8, in respect of all Claims (after giving due effect to clause 7.7) in relation to each Claim exceeds (pound)20,000, in which event the Sellers Purchaser shall not be liable for the full amount of the Claim and not merely the excess over (pound)20,000.
7.9 Except where it may be prejudicial to the business interests of the Company or the Buyer, the Buyer shall at all reasonable times make available to the Sellers (at the Sellers' cost) all information and documents relating to the Claim. If requested by the Seller, the Buyer shall give the Sellers and their professional advisers access on reasonable notice to the personnel of the Buyer and/or the Company (as the case may be) and to any relevant premises, chattels, accounts, documents and records within the power, possession or control of the Buyer and/or the Company to enable the Sellers and their professional advisers to interview such personnel, and to examine such Claim, premises, chattels, accounts, documents and records and to take copies or photographs of the same at their own expense.
7.10 Where the Buyer or the Company is entitled to recover any sum from another person or firm or company damages in respect of any matter giving rise breach or breaches of this agreement except to a Claim under this Agreement, the Buyer shall or shall procure extent that the Company shall take all reasonable steps to enforce amount of damages in respect of such recovery. The Buyer breach or breaches, together with any liability on the part of the Seller under the Tax Deed, exceeds in aggregate (Pounds)5,000,000 PROVIDED THAT the foregoing provisions of this paragraph (c) shall not be required operate to take such steps where it is limit the liability of the reasonable view that any such action is prejudicial to the business interests Seller under clause 11, under paragraph 9 of the Company Schedule 4 or the Buyer.
7.11 The sole remedy against the Buyer in respect of any Claim shall be an action for damages. Save in the event of fraudulent misrepresentation, no right of rescission shall be available after Completion to the Buyer by reason of any breach of Warranty A.5(3); and
(d) the Warranties or maximum aggregate liability of the Seller under this agreement, clauses 3(5) to (7) of the Undertaking and the Tax Covenant.
7.12 The Buyer Deed shall reimburse to the Sellers an amount equal to any sum paid in respect of any Claim which is subsequently recovered by or paid to the Buyer or any member not exceed 100% of the Buyer's Group or the Company by any third party less any reasonable costs incurred total sums payable by the Buyer in connection with such Claim.
7.13 The amount or amounts of any successful Claim or Claims against the Sellers under or in respect of claims under the Tax Covenant (after deducting any reimbursement made pursuant to this schedule) shall be deemed to constitute a reduction in the Consideration.
7.14 Nothing herein shall in any way diminish the Buyer's or the Company's common law duty to mitigate its loss in relation to any Claim.
7.15 Any payment Purchaser and received by the Sellers Seller under this agreement to the Buyer shall reduce by that amount any Claims by the Buyer under the Tax Covenant (and vice versaclauses 3, 11(1)(c) and the Buyer shall at all times procure that there is no duplication of any claim relating to the same subject matter whether under this agreement or under the Tax Covenant or otherwise.
7.16 Nothing in this clause 6 applies to a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Sellers, their agents or advisers.11
Appears in 1 contract
Limitations on Claims. 7.1 8.1 The definitions and rules of interpretation in this clause apply in this agreement. CLAIMClaim: a claim for breach of any of the Warranties. SUBSTANTIATED CLAIMSubstantiated Claim: a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal. A Claim is CONNECTED connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or and relate to the same subject matter.
7.2 8.2 This clause limits the liability of the Sellers Seller in relation to any Claim.
7.3 8.3 The maximum aggregate liability of each of the Sellers in respect of Seller for all Substantiated Claims and any claim under the Tax Covenant when taken together shall not exceed each Seller's pro rata portion of (pound)4,450,000 in accordance with an amount equal to the percentage in column 3 of Schedule 1Deferred Consideration.
7.4 8.4 The Sellers are Seller shall not be liable for a Claim unless the amount of a Substantiated Claim, or of a series of connected Substantiated Claims of which that Substantiated Claim is one, exceeds $16,000 (US).
8.5 The Seller is not liable for a any Claim to the extent that the Claim:
(a) relates to matters Disclosed;; or
(b) relates to any matter specifically and fully provided for in the Accounts or in the Completion Accounts;
(c) would not have arisen but for something voluntarily done or intentionally omitted to be done by the Buyer, the Company or their agents after Completion otherwise than in the ordinary course of the business of the Company as carried on at Completion;
(d) arises as a result of the passing of or any change in law or regulation after the date of this agreement (whether retrospectively or not) or occurs or arises or, such Claim having arisen, is increased as a result of any change in any accounting or taxation policy of the Company after the date of this agreement;
(e) arises as a result of any failure or omission by the Company to make any claim, election, surrender or disclaimer, or give any notice, or consent or do any other thing, in connection with the provisions of any enactment or regulation relating to Taxation after Completion, the anticipated making, giving or going of which was Disclosed by the Sellers and was taken into account in computing the provision for Taxation in the Accounts;
(f) arises from an act, event omission, transaction or arrangement prior to Completion occurring at the written request of the Buyer; or
(g) is actually recovered by the Buyer under the terms of any insurance policy of the Buyer or the Company (net of any additional costs incurred by the Company and/or the Buyer as a result of any consequential increase in premiums).
7.5 8.6 The Sellers are Seller is not liable for a Claim unless one of the Buyer Buyers has given the Sellers written Seller notice in writing of the Claim, summarising the nature of the Claim (giving reasonable information regarding as far as it is known to the nature Buyers and an estimate of the value of such Claim):
(a) in amount claimed, prior to the case of a claim made under the Tax Warranties or the Tax Covenant, within the period of seven years beginning with the Completion Deferred Consideration Date; and
(b) in the case of a non-Tax Warranty claim by 31 July 2007, (in each case such date being referred to as the "Expiry Date").
7.6 Any Claim made before the Expiry Date in accordance with clause 7.5 shall, if it has not been previously satisfied, settled or withdrawn, be deemed to have been withdrawn and shall become fully barred and unenforceable (and the Sellers' liability in respect of such Claim shall absolutely terminate) on the expiry of the period of 6 months after notice of such Claim was given to the Sellers (or any of them) in accordance with clause 7.5, unless proceedings in respect thereof shall have been commenced against the Sellers (and for this purpose proceedings shall not be deemed to have been commenced unless they shall have been issued and validly served upon the Sellers).
7.7 The Sellers shall not be liable in respect of a Claim or group of Claims based on substantially the same facts or circumstances unless the amount that would otherwise be recoverable from the Sellers, but for this clause 7.7, in respect of the Claim exceeds (pound)2,000.
7.8 The Sellers shall not be liable in respect of any Claim unless and until the aggregate amount that would otherwise be recoverable from the Sellers, but for this clause 7.8, in respect of all Claims (after giving due effect to clause 7.7) in relation to each Claim exceeds (pound)20,000, in which event the Sellers shall be liable for the full amount of the Claim and not merely the excess over (pound)20,000.
7.9 Except where it may be prejudicial to the business interests of the Company or the Buyer, the Buyer shall at all reasonable times make available to the Sellers (at the Sellers' cost) all information and documents relating to the Claim. If requested by the Seller, the Buyer shall give the Sellers and their professional advisers access on reasonable notice to the personnel of the Buyer and/or the Company (as the case may be) and to any relevant premises, chattels, accounts, documents and records within the power, possession or control of the Buyer and/or the Company to enable the Sellers and their professional advisers to interview such personnel, and to examine such Claim, premises, chattels, accounts, documents and records and to take copies or photographs of the same at their own expense.
7.10 Where the Buyer or the Company is entitled to recover any sum from another person or firm or company in respect of any matter giving rise to a Claim under this Agreement, the Buyer shall or shall procure that the Company shall take all reasonable steps to enforce such recovery. The Buyer shall not be required to take such steps where it is of the reasonable view that any such action is prejudicial to the business interests of the Company or the Buyer.
7.11 The sole remedy against the Buyer in respect of any Claim shall be an action for damages. Save in the event of fraudulent misrepresentation, no right of rescission shall be available after Completion to the Buyer by reason of any breach of the Warranties or the Tax Covenant.
7.12 The Buyer shall reimburse to the Sellers an amount equal to any sum paid in respect of any Claim which is subsequently recovered by or paid to the Buyer or any member of the Buyer's Group or the Company by any third party less any reasonable costs incurred by the Buyer in connection with such Claim.
7.13 The amount or amounts of any successful Claim or Claims against the Sellers under or in respect of claims under the Tax Covenant (after deducting any reimbursement made pursuant to this schedule) shall be deemed to constitute a reduction in the Consideration.
7.14 Nothing herein shall in any way diminish the Buyer's or the Company's common law duty to mitigate its loss in relation to any Claim.
7.15 Any payment by the Sellers under this agreement to the Buyer shall reduce by that amount any Claims by the Buyer under the Tax Covenant (and vice versa) and the Buyer shall at all times procure that there is no duplication of any claim relating to the same subject matter whether under this agreement or under the Tax Covenant or otherwise.
7.16 8.7 Nothing in this clause 6 applies agreement shall operate to a Claim limit any claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the SellersSeller, their its agents or advisersadvisers in connection with Seller's inducement of Buyers to enter into this Agreement, including but not limited to the warranties given by Seller in clause 7 of this Agreement if fraudulently given by the Seller and relied on by the Buyers in entering into the transaction contemplated by this Agreement.
Appears in 1 contract
Limitations on Claims. 7.1 The definitions and rules (a) No Claim may be brought against the Vendor unless a Notice of interpretation in this clause apply in this agreement. CLAIM: a claim for breach of any of the Warranties. SUBSTANTIATED CLAIM: a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal. A Claim is CONNECTED with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate given to the same subject matter.
7.2 This clause limits the liability of the Sellers in relation to any Claim.
7.3 The maximum aggregate liability of each of the Sellers in respect of all Claims and any claim under the Tax Covenant shall not exceed each Seller's pro rata portion of (pound)4,450,000 Vendor in accordance with Clause 7.8 on or before the percentage in column 3 of Schedule 1date which is 12 months from the Completion Date.
7.4 (b) The Sellers are Vendor shall not be liable for a any Claim or Liability howsoever arising from any breach of the Vendor’s Warranties:
(i) to the extent that the Claim:
(a) relates facts and circumstances giving rise to matters Disclosedthe Claim or Liability have been disclosed to the Purchaser or its advisers in writing or are otherwise disclosed in this agreement;
(bii) relates to any matter specifically and fully provided for in the Accounts or in the Completion Accounts;
(c) which would not have arisen but for something voluntarily done a voluntary act, omission or intentionally omitted to be done transaction after the Completion Date by or on behalf of the Buyer, the Company or their agents after Completion otherwise than Purchaser which was not in the ordinary course of the business of the Company as carried on at Completionbusiness;
(diii) to the extent that the Claim or Liability would not have arisen but for some act, omission, transaction or arrangement whatsoever carried out at the written request or with the written approval of the Purchaser prior to the Completion Date;
(iv) which arises as a result of the passing of or any change in law or regulation legislation which comes into force after the date of this agreement Agreement and which is retrospective in effect;
(whether retrospectively or notv) or occurs or which arises or, such Claim having arisen, is increased as a result of any change in any accounting or taxation policy of the Company administrative practice after the date of this agreementAgreement;
(evi) to the extent that the injury, loss or damage suffered by the Purchaser as a result of the breach is covered by an insurance policy held by or on behalf of the Purchaser and the Purchaser recovers compensation in respect of that injury, loss or damage from any of its insurers;
(vii) to the extent that the Purchaser recovers the amount of that Claim from any third party; or
(viii) which arises as a result of the Purchaser failing to act in accordance with any failure or omission by the Company to make any claim, election, surrender or disclaimer, or give any notice, or consent or do any other thing, in connection with the provisions of any enactment or regulation relating to Taxation after Completion, the anticipated making, giving or going of which was Disclosed by the Sellers and was taken into account in computing the provision for Taxation in the Accounts;
(f) arises from an act, event omission, transaction or arrangement prior to Completion occurring at the written reasonable request of the Buyer; orVendor in avoiding, resisting or compromising any Claim after being given a reasonable time in which to comply with any such request.
(gc) is actually recovered by the Buyer under the terms of any insurance policy The Liability of the Buyer or the Company (net of any additional costs incurred by the Company and/or the Buyer as a result of any consequential increase in premiums).
7.5 The Sellers are not liable for a Claim unless the Buyer has given the Sellers written notice of the Claim (giving reasonable information regarding the nature and an estimate of the value of such Claim):
(a) in the case of a claim made under the Tax Warranties or the Tax Covenant, within the period of seven years beginning with the Completion Date; and
(b) in the case of a non-Tax Warranty claim by 31 July 2007, (in each case such date being referred to as the "Expiry Date").
7.6 Any Claim made before the Expiry Date in accordance with clause 7.5 shall, if it has not been previously satisfied, settled or withdrawn, be deemed to have been withdrawn and shall become fully barred and unenforceable (and the Sellers' liability in respect of such Claim shall absolutely terminate) on the expiry of the period of 6 months after notice of such Claim was given to the Sellers (or any of them) in accordance with clause 7.5, unless proceedings in respect thereof shall have been commenced against the Sellers (and for this purpose proceedings shall not be deemed to have been commenced unless they shall have been issued and validly served upon the Sellers).
7.7 The Sellers shall not be liable in respect of a Claim or group of Claims based on substantially the same facts or circumstances unless the amount that would otherwise be recoverable from the Sellers, but for this clause 7.7, in respect of the Claim exceeds (pound)2,000.
7.8 The Sellers shall not be liable Vendor in respect of any Claim unless and until for breach of the Vendor’s Warranties shall be limited as follows:
(i) the maximum aggregate amount that would otherwise be recoverable from liability of the Sellers, but for this clause 7.8, Vendor in respect of all Claims for breach of the Vendor’s Warranties shall not exceed the amount calculated by multiplying the number of Consideration Shares by the Issue Price; and
(after giving due effect to clause 7.7ii) in relation to each Claim exceeds (pound)20,000, in which event the Sellers Vendor shall not be liable for the full amount any individual Claim which does not exceed $150,000.
(d) It is a condition of any Claim for breach of the Vendor’s Warranties that the Purchaser shall, upon any Claim and not merely being made or issued against the excess over (pound)20,000.
7.9 Except where it may be prejudicial to the business interests of the Company or the Buyer, the Buyer shall at all reasonable times make available to the Sellers (at the Sellers' cost) all information and documents relating to the Claim. If requested by the Seller, the Buyer shall give the Sellers and their professional advisers access on reasonable notice to the personnel of the Buyer and/or the Company (as the case may be) and to any relevant premises, chattels, accounts, documents and records within the power, possession or control of the Buyer and/or the Company to enable the Sellers and their professional advisers to interview such personnel, and to examine such Claim, premises, chattels, accounts, documents and records and to take copies or photographs of the same at their own expense.
7.10 Where the Buyer or the Company is entitled to recover any sum from another person or firm or company in respect of any matter giving rise Purchaser which could lead to a Claim under this Agreementby the Purchaser for breach of the Vendor’s Warranties, give a Notice of Claim to the Vendor in accordance with Clause 7.8 and failing such Notice of Claim, the Buyer Vendor shall or shall procure that the Company shall take all reasonable steps to enforce such recovery. The Buyer shall not be required to take such steps where it is of the reasonable view that any such action is prejudicial to the business interests of the Company or the Buyerhave no liability in respect thereof.
7.11 (e) The sole remedy against amount of any compensation or damages payable by the Buyer Vendor in respect of any Claim shall be an action for damages. Save in the event of fraudulent misrepresentation, no right of rescission shall be available after Completion to the Buyer by reason of any breach of the Vendor’s Warranties or shall be computed after taking into account and giving full credit for any increase in the Tax Covenant.
7.12 The Buyer shall reimburse to the Sellers an amount equal to any sum paid in respect of any Claim which is subsequently recovered by or paid to the Buyer or any member value of the Buyer's Group or Sale Shares between the Company by any third party less any reasonable costs incurred by Completion Date and the Buyer in connection with such date of the Claim.
7.13 The amount or amounts (f) If any Claim for breach of any successful Claim or Claims against the Sellers Vendor’s Warranties is brought under or in respect of claims under the Tax Covenant (after deducting any reimbursement made pursuant to this schedule) shall be deemed to constitute a reduction in the Consideration.
7.14 Nothing herein shall in any way diminish the Buyer's or the Company's common law duty to mitigate its loss Agreement in relation to any ClaimLiability of the Purchaser which is contingent only, the Vendor shall not be liable to make any payment in respect thereof until such contingent liability becomes an actual liability and is discharged by or on behalf of the Purchaser.
7.15 Any payment (g) If the Vendor pays to the Purchaser any amount by way of compensation or damages for breach of the Vendor’s Warranties and the Purchaser subsequently recovers from a third party any amount relating to such breach, the Purchaser shall forthwith repay to the Vendor such amount previously paid by the Sellers under this agreement Vendor or so much thereof as does not exceed the amount recovered from the third party.
(h) None of the Vendor’s Warranties or any benefit or Claim thereunder may be assigned to any person without the Buyer prior written consent of the Vendor and the Liability of the Vendor and any subsisting Claim shall reduce by that amount be withdrawn upon the Sale Shares or any Claims of them ceasing to be owned by the Buyer under the Tax Covenant (and vice versa) and the Buyer shall at all times procure that there is no duplication of any claim relating to the same subject matter whether under this agreement or under the Tax Covenant or otherwisePurchaser.
7.16 Nothing in this clause 6 applies to a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Sellers, their agents or advisers.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Integrated Media Technology LTD)
Limitations on Claims. 7.1 6.1 The definitions and rules of interpretation in this clause apply in this agreementAgreement. CLAIM: a claim for breach of any of the WarrantiesWarranties or as set forth in Clauses 7.2(a), (b), (c) or (d) or a loss under Clause 3.2. SUBSTANTIATED CLAIM: a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal. CLAIM FOR LOSSES IN RESPECT OF DISCLOSED LEGAL PROCEEDINGS: a Claim as to Disclosed Legal Proceedings shall be a Claim made pursuant to Clause 6.8. A Claim is CONNECTED with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter.
7.2 This clause limits 6.2 The provisions of this Agreement set out the limitations on Claims that may be made against the Sellers and these limitations replace and exclude any and all other recourse to which the Buyer may be entitled, in law or otherwise, against the Sellers, their personnel, their advisers and their consultants, except for fraud or intentional misconduct ("bedrog / dol").
6.3 The Sellers' liability is subject to the following restrictions and limitations:
(a) in relation to Claims and any Claims for Losses in respect of Disclosed Legal Proceedings, the liability of the Sellers is not joint and several so that they shall each only be liable for a proportion of the total liability in respect of Claims, Substantiated Claims and any Claim for Losses in respect of Disclosed Legal Proceedings and all other matters arising under and in relation to any Claim.
7.3 The maximum aggregate liability this Agreement equal to the proportion of the total number of Shares owned by each of them;
(b) the Sellers give no Warranties as to the future profitability of the Company. Without prejudice to Warranties given by the Sellers in respect of historic performance of obligations by Third Parties owed to the Company or to Bulkinvest under contracts that such Third Parties have signed with the Company or with Bulkinvest, the Sellers give no Warranties and none of the Sellers shall have any liability at all Claims (as the Buyer hereby acknowledges and agrees) in respect of and/or resulting from:
(i) future performance or default by Third Parties of their obligations under contracts that they have signed with the Company or with Bulkinvest, and losses or failure to receive anticipated income resulting from failure by Third Parties to perform, in full or in part, their obligations under contracts that they have signed with the Company or with Bulkinvest, provided that the Sellers represent and warrant that they have no actual knowledge of any claim fact or circumstance that could reasonably be expected to have a material adverse effect on the near term future operations of the Company, and, provided further that there shall be excluded from this representation and warranty any industry-wide matter which affects the Business as a result of factors which also generally affect other companies which carry out similar businesses, such as changes in shipping rates; or
(ii) actual results of performance by the Company or Bulkinvest of their obligations under contracts that they have signed, even if those are different from those estimated by the Tax Covenant Company, it being understood and agreed that such estimates and the assumptions on which they have been based are all only estimates made in good faith by the Company in the normal conduct of the Business for its own internal management purposes and not as financial projections on which the Buyer may rely,
(c) Except as set forth in Clause 6.8, the Sellers shall not exceed each Seller's pro rata portion be liable in respect of (pound)4,450,000 in accordance with the percentage in column 3 of Schedule 1.
7.4 The Sellers are not liable for a any Claim to the extent that the such Claim:
(a) relates to matters Disclosed;
(bi) relates to any matter specifically and fully provided for in the Accounts or in the Completion Accounts;
(c) would not have arisen but for something voluntarily done or intentionally omitted to be done by the Buyer, the Company or their agents after Completion otherwise than in the ordinary course of the business of the Company as carried on at Completion;
(d) arises as a result of the passing of or any change in law or regulation after the date of this agreement (whether retrospectively or not) or occurs or arises or, such Claim having arisen, is increased as a result of any change in any accounting or taxation policy of the Company after the date of this agreement;
(e) arises as a result of any failure or omission by the Company to make any claim, election, surrender or disclaimer, or give any notice, or consent or do any other thing, in connection with the provisions of any enactment or regulation relating to Taxation after Completion, the anticipated making, giving or going of which was Disclosed by the Sellers and was taken into account in computing the provision for Taxation disclosed in the Accounts;
(f) arises from an act, event omission, transaction or arrangement prior to Completion occurring at the written request of the Buyer; or
(gii) is actually recovered by has otherwise been fully disclosed in the Buyer under the terms of any insurance policy of the Buyer or the Company (net of any additional costs incurred by the Company and/or the Buyer as a result of any consequential increase in premiums)annexes to this Agreement.
7.5 The 6.5 Except as set forth in Clause 6.8 and except for any Claim pursuant to Clause 7.2(c), the Sellers are not liable for a Claim unless the Buyer has given the Sellers written notice in writing of the Claim, summarising the nature of the Claim (giving reasonable information regarding as far as it is known to the nature Buyer and an estimate of the value of such Claim):
(a) in the case of a claim made under the Tax Warranties or the Tax Covenantamount claimed, within the period of seven years beginning with twenty four (24) months after the Completion Date; and
(b) in the case of a non-Tax Warranty claim by 31 July 2007, (in each case such date being referred to as the "Expiry Date").
7.6 Any Claim made before the Expiry Date in accordance with clause 7.5 shall, if it has not been previously satisfied, settled or withdrawn, be deemed to have been withdrawn and shall become fully barred and unenforceable (and the Sellers' liability in respect of such Claim shall absolutely terminate) on the expiry of the period of 6 months after notice of such Claim was given to the Sellers (or any of them) in accordance with clause 7.5, unless proceedings in respect thereof shall have been commenced against the Sellers (and for this purpose proceedings shall not be deemed to have been commenced unless they shall have been issued and validly served upon the Sellers).
7.7 6.6 The Sellers shall not be liable for a Claim:
(a) unless the amount of a Substantiated Claim, or of a series of connected Substantiated Claims of which that Substantiated Claim is one, exceeds $25,000;
(b) unless the amount of all Substantiated Claims that are not otherwise excluded, when taken together, exceeds $50,000, in which case the whole amount (and not just the amount by which the limit in this clause 6.6(b) is exceeded) is recoverable by the Buyer; and
(c) if and to the extent that the aggregate liability of the Sellers for Substantiated Claims shall exceed $20,000,000.
6.7 In relation to the conduct of Claims and any Claim for Losses in respect of a Claim Disclosed Legal Proceedings, to the extent that these involve bringing or group continuing proceedings against third parties or defending claims from third parties, the Sellers may arrange for all such actions to be taken in the name of Claims based on substantially the same facts or circumstances unless Company and/or Bulkinvest and, if the amount Sellers determine to do this, then the Buyer shall procure that would otherwise everything is done by the Company and/or Bulkinvest so as to enable this to be recoverable from done. If the Sellers, but for this clause 7.7Sellers do not exercise such right then the Buyer shall procure that such action is taken and, in respect of the Claim exceeds (pound)2,000.
7.8 The Sellers shall not be liable in respect of any Claim unless and until the aggregate amount that would otherwise be recoverable from the Sellerssuch case, but for this clause 7.8, in respect of all Claims (after giving due effect to clause 7.7) in relation to each Claim exceeds (pound)20,000, in which event the Sellers shall have the right to be liable for the full amount kept informed of the Claim and not merely conduct of such proceedings but the excess over (pound)20,000.
7.9 Except where it may manner in which those proceedings are to be prejudicial to the business interests of the Company or the Buyer, the Buyer conducted shall at all reasonable times make available to the Sellers (at the Sellers' cost) all information and documents relating to the Claim. If requested be determined by the Seller, the Buyer shall give the Sellers and their professional advisers access on reasonable notice to the personnel of the Buyer and/or the Company (as the case may be) and to any relevant premises, chattels, accounts, documents and records within the power, possession or control of the Buyer and/or the Company to enable the Sellers and their professional advisers to interview such personnel, and to examine such Claim, premises, chattels, accounts, documents and records and to take copies or photographs of the same at their own expense.
7.10 Where the Buyer or the Company is entitled to recover any sum from another person or firm or company in respect of any matter giving rise to a Claim under this Agreement, the Buyer shall or shall procure that the Company shall take all reasonable steps to enforce such recovery. The Buyer shall not be required to take such steps where it is of the reasonable view that any such action is prejudicial to the business interests of the Company or the Buyer.
7.11 The sole remedy against the Buyer in respect of any Claim shall be an action for damages. Save in the event of fraudulent misrepresentation, no right of rescission shall be available after Completion to the Buyer by reason of any breach of the Warranties or the Tax Covenant.
7.12 The Buyer shall reimburse to the Sellers an amount equal to any sum paid in respect of any Claim which is subsequently recovered by or paid to the Buyer or any member of the Buyer's Group or the Company by any third party less any reasonable costs incurred by the Buyer in connection with such Claim.
7.13 The amount or amounts of any successful Claim or Claims against the Sellers under or in respect of claims under the Tax Covenant (after deducting any reimbursement made pursuant to this schedule) shall be deemed to constitute a reduction in the Consideration.
7.14 Nothing herein shall in any way diminish the Buyer's or the Company's common law duty to mitigate its loss in relation to any Claim.
7.15 Any payment by the Sellers under this agreement to the Buyer shall reduce by that amount any Claims by the Buyer under the Tax Covenant (and vice versa) and the Buyer shall at all times procure that there is no duplication of any claim relating to the same subject matter whether under this agreement or under the Tax Covenant or otherwise.
7.16 Nothing in this clause 6 applies to a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Sellers, their agents or advisers.
Appears in 1 contract
Sources: Share Purchase Agreement (Navios Maritime Holdings Inc.)
Limitations on Claims. 7.1 (a) The definitions Shareholders shall not be liable for any Claim whatsoever and rules howsoever arising unless they receive from the Buyer written notice containing details of interpretation the Claim including the Buyer's estimate (on a without prejudice basis) of the amount of such Claim; (i) on or before the second anniversary of Closing in this clause apply the case of a Claim other than Claims relating to Tax (ii) on or before the sixth anniversary of the end of the accounting reference period of the Company in this agreement. CLAIM: which Closing occurs in the case of a claim Claim for breach of any of the Warranties. SUBSTANTIATED CLAIM: a Claim Representations in relation to tax or the indemnities contained in the Tax Deed.
(b) The Buyer shall have no right to recover in respect of which any breach of any of the Representations unless and until the aggregate liability is admitted by of the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies Shareholders in respect of breach of Representations exceeds #100,000 but if such adjudicationaggregate liability should exceed that sum, or the parties are debarred by passage of time or otherwise from making an appeal. A Claim is CONNECTED with another Claim or Substantiated Claim if they all arise out of Shareholders shall be liable for only the occurrence of the same event or relate to the same subject matterexcess over that amount.
7.2 This clause limits the (c) The aggregate amount of liability of the Sellers in relation to any Claim.
7.3 The maximum aggregate liability of each of the Sellers in respect of Shareholders for all Claims and any claim under the Tax Covenant shall not exceed each Seller's pro rata portion of (pound)4,450,000 in accordance with the percentage in column 3 of Schedule 1US$4,000,000.
7.4 (d) The Sellers are Shareholders shall not be liable for a Claim any breach of any of the Representations if and to the extent that the Claim:fact matter event or circumstances giving rise to such breach was fully and fairly disclosed in the Disclosure Letter.
(ae) relates to matters Disclosed;
(b) relates to No Claim shall lie against the Shareholder in respect of any matter specifically and fully provided for in the Accounts or in the Completion Accounts;
(c) would not have arisen but for something voluntarily done or intentionally omitted to be done by the Buyer, the Company or their agents after Completion otherwise than in the ordinary course of the business of the Company as carried on at Completion;
(d) arises as a result of the passing of or any change in law or regulation after the date of this agreement (whether retrospectively or not) or occurs or arises or, such Claim having arisen, is increased arising as a result of any change in any accounting the law or taxation policy of the Company after the date of this agreement;
(e) arises as a result of any failure or omission by the Company to make any claim, election, surrender or disclaimer, or give any notice, or consent or do any other thing, in connection with the provisions of any enactment or regulation relating to Taxation after Completion, the anticipated making, giving or going of which was Disclosed by the Sellers and was taken into account in computing the provision for Taxation change in the Accounts;rates or principles of taxation subsequent to Closing.
(f) arises from an act, The Shareholder shall not be liable for any Claim in respect of any fact matter event omission, transaction or arrangement prior circumstances to Completion occurring at the written request of extent that specific allowance provision or reserve has been made for such specific fact matter event or circumstances in the Buyer; orLast Accounts.
(g) is actually recovered by the Buyer under the terms of any insurance policy of the Buyer or the Company (net of any additional costs incurred by the Company and/or the Buyer as a result of any consequential increase in premiums).
7.5 The Sellers are not liable for a Claim unless the Buyer has given the Sellers written notice of the Claim (giving reasonable information regarding the nature and an estimate of the value of such Claim):
(a) in the case of a claim made under the Tax Warranties or the Tax Covenant, within the period of seven years beginning with the Completion Date; and
(b) in the case of a non-Tax Warranty claim by 31 July 2007, (in each case such date being referred to as the "Expiry Date").
7.6 Any Claim made before the Expiry Date in accordance with clause 7.5 shall, if it has not been previously satisfied, settled or withdrawn, be deemed to have been withdrawn and shall become fully barred and unenforceable (and the Sellers' liability in respect of such Claim shall absolutely terminate) on the expiry of the period of 6 months after notice of such Claim was given to the Sellers (or any of them) in accordance with clause 7.5, unless proceedings in respect thereof shall have been commenced against the Sellers (and for this purpose proceedings shall not be deemed to have been commenced unless they shall have been issued and validly served upon the Sellers).
7.7 The Sellers shall not be liable in respect of a Claim or group of Claims based on substantially the same facts or circumstances unless the amount that would otherwise be recoverable from the Sellers, but for this clause 7.7, in respect of the Claim exceeds (pound)2,000.
7.8 The Sellers Shareholders shall not be liable in respect of any Claim unless and until to the aggregate amount extent that the Claim would otherwise be recoverable from the Sellers, not have arisen but for any act matter or
(h) A breach of this clause 7.8, in respect Agreement which is capable of all Claims (after giving due effect remedy shall not entitle the Buyer to clause 7.7) in relation compensation except and to each Claim exceeds (pound)20,000, in the extent that the Shareholder is given written notice of such breach and following such notice such breach remains unremedied at the expiry of 50 days following the date upon which event the Sellers shall be liable for the full amount of the Claim and not merely the excess over (pound)20,000such notice is served.
7.9 Except where it may be prejudicial to (i) If the business interests of the Company or the Buyer, Shareholder pays the Buyer shall at all reasonable times make available to the Sellers (at the Sellers' cost) all information and documents relating to the Claim. If requested by the Seller, any amount or releases Common Stock in the Buyer shall give the Sellers and their professional advisers access on reasonable notice to the personnel of the Buyer and/or the Company (as the case may be) and to any relevant premises, chattels, accounts, documents and records within the power, possession or control of the Buyer and/or the Company to enable the Sellers and their professional advisers to interview such personnel, and to examine such Claim, premises, chattels, accounts, documents and records and to take copies or photographs of the same at their own expense.
7.10 Where the Buyer or the Company is entitled to recover any sum from another person or firm or company it in respect of any matter giving rise to a Claim under this Agreement, the Buyer shall or shall procure that the Company shall take all reasonable steps to enforce such recovery. The Buyer shall not be required to take such steps where it is of the reasonable view that any such action is prejudicial to the business interests of the Company or the Buyer.
7.11 The sole remedy against the Buyer in respect discharge of any Claim shall be an action for damages. Save in the event of fraudulent misrepresentation, no right of rescission shall be available after Completion to the Buyer by reason of any breach of the Warranties or the Tax Covenant.
7.12 The Buyer shall reimburse to the Sellers an amount equal to any sum paid in respect of any Claim which is subsequently recovered by or paid to and if the Buyer or any member of the Buyer's Group or subsequently recovers from a third party (including any tax authority) a sum which is directly referable to the Company by any subject matter of the Claim the Buyer shall repay to the Shareholders: (i) an amount equal to the sum recovered from the third party less any reasonable costs of recovery incurred by the Buyer in connection with such Claim.
7.13 The or the member of the Buyer's Group as a direct result of recovering same and any tax suffered on the receipt or; (ii) if the figure resulting under paragraph (i) above is greater than the amount paid by the Shareholder to the Buyer or amounts the relevant member of any successful Claim or Claims against the Sellers under or Buyer's Group in respect of claims under the Tax Covenant relevant Claim such lesser amount as shall have been so paid by the Shareholder.
(after deducting any j) The Buyer agrees that it shall not be entitled to recover damages or obtain payment reimbursement made restitution or indemnity to the extent that it has already recovered such sum pursuant to any other provision of this scheduleAgreement.
(k) If the Buyer becomes aware of any third party Claim potential Claim matter or event (hereinafter a "Third Party Claim") which might lead to a Claim being made the Buyer: (i) shall be deemed procure that notice thereof is given to constitute a reduction the Shareholders; (ii) shall not make (or as appropriate shall procure that no member of the Buyer's Group shall make) any admission liability agreement or compromise with any person body or authority in relation to any such Third Party Claim without prior consultation with the ConsiderationShareholders; (iii) shall take (or as appropriate shall procure that any relevant member of the Buyer's Group shall take) such action as the Shareholders may reasonable request to avoid, dispute, resist, appeal, compromise or defend such Third Party Claim, potential Claim, matter or event or any adjudication in respect thereof provided that such action does not prejudice the goodwill or conduct of the business of the Company or any Group Company.
7.14 (l) Nothing herein in this Clause 3.31 shall in any way diminish restrict or limit the Buyer's or general obligation in law on the Company's common law duty Buyer to mitigate its any loss or damage which it may suffer in relation to consequence of any Claim.
7.15 Any payment breach by the Sellers under Shareholders of the terms of this agreement Agreement. (m) The limitations contained in this Clause 3.31 shall not apply to the Buyer shall reduce by that amount any Claims by the Buyer under the Tax Covenant representations and warranties contained in Clauses 3.1 (Authority and vice versaNo Conflict), 3.2 (Validity), 3.3 (Due Organisation) and the Buyer shall at all times procure that there is no duplication of any claim relating to the same subject matter whether under this agreement or under the Tax Covenant or otherwise3.4 (Capitalization).
7.16 Nothing in this clause 6 applies to a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Sellers, their agents or advisers.
Appears in 1 contract
Sources: Stock Purchase Agreement (First Sierra Financial Inc)
Limitations on Claims. 7.1 The definitions and rules of interpretation limitations set out in this clause 6 shall not apply in this agreement. CLAIMto any Claim which is: the consequence of fraud, dishonesty, wilful concealment or wilful misrepresentation by or on behalf of the Company; or which is a claim for result of a breach of any the Warranties set out in paragraphs 1.1 or 1.2 of Schedule 5. No Claim may be made against the Warranties. SUBSTANTIATED CLAIM: a Claim in respect Company unless written notice of which liability is admitted by the party against whom such Claim is broughtserved on the Company, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal. A Claim is CONNECTED with another Claim or Substantiated Claim if they all arise out giving reasonable details of the occurrence of Claim, within the same event or relate to [18] month period after the same subject matter.
7.2 This clause limits the Warranties were last given. The aggregate liability of the Sellers in relation to any Claim.
7.3 The maximum aggregate liability of each of the Sellers Company in respect of all Claims and any claim under Claims shall be limited (subject to clause 5.6) to an amount equal to the Tax Covenant shall not exceed each Seller's pro rata portion of (pound)4,450,000 in accordance aggregate amount subscribed for the New Shares by the Investors pursuant to this agreement [together with the percentage proper and reasonable costs of recovery in column 3 respect of Schedule 1any Claim incurred by or on behalf of the Investors.
7.4 The Sellers ] Without prejudice to the overall cap set out in clause 6.3 above, in respect of any Claim(s) that is or are not liable brought by only some Investors, the aggregate liability of the Company in respect of all such Claims shall be limited to an amount equal to the aggregate amount subscribed for a the New Shares pursuant to this agreement by those Investors bringing the Claim(s) [together with the proper and reasonable costs of recovery in respect of any Claim incurred by or on behalf of such Investors.] No liability of the Company in respect of any breach of any Warranty shall arise: if such breach occurs [or to the extent that the Claim:
(a) relates to matters Disclosed;
(b) relates to liability is increased] by reason of any matter specifically and fully provided which would not have arisen but for the coming into force of any legislation not in force at the Execution Date or by reason of any change to existing legislation, HMRC’s practice (or that of any other Taxing Authority) or in rates of Taxation occurring after the Execution Date; to the extent that specific allowance, provision or reserve has been made in the Accounts or in the Completion Accounts;
(c) would not have arisen but for something voluntarily done or intentionally omitted to be done by the Buyer, the Company or their agents after Completion otherwise than Management Accounts in the ordinary course respect of the business of matter to which such liability relates; and/or to the Company as carried on at Completion;
(d) extent that such breach or claim arises as a result of the passing of or any change in law or regulation after the date of this agreement (whether retrospectively or not) or occurs or arises or, such Claim having arisen, is increased as a result of any change in the accounting bases or policies in accordance with which the Company values its assets or calculate its liabilities or any other change in accounting practice from the treatment or taxation policy application of the Company after same used in preparing the date of this agreement;
Accounts (e) arises as a result of any failure save to the extent that such changes are required to correct errors or omission by the Company because relevant generally accepted accounting principles have not been complied with). The Investors shall be entitled to make any claim, election, surrender or disclaimer, or give any notice, or consent or do any other thing, in connection with the provisions of any enactment or regulation relating to Taxation after Completion, the anticipated making, giving or going of which was Disclosed by the Sellers and was taken into account in computing the provision for Taxation in the Accounts;
(f) arises from an act, event omission, transaction or arrangement prior to Completion occurring at the written request of the Buyer; or
(g) is actually recovered by the Buyer under the terms of any insurance policy of the Buyer or the Company (net of any additional costs incurred by the Company and/or the Buyer as a result of any consequential increase in premiums).
7.5 The Sellers are not liable for a Claim unless the Buyer has given the Sellers in respect of liability which is contingent or unascertained provided that written notice of the Claim (giving reasonable information regarding as far as practical the nature amount and an estimate details of the value of such Claim):
(a) in is given to the case of a claim made under the Tax Warranties or the Tax Covenant, within the period of seven years beginning with the Completion Date; and
(b) in the case of a non-Tax Warranty claim by 31 July 2007, (in each case such date being referred to as the "Expiry Date").
7.6 Any Claim made Company before the Expiry Date expiry of the relevant periods specified in accordance with clause 7.5 shall, if it has not been previously satisfied, settled or withdrawn, be deemed to have been withdrawn and shall become fully barred and unenforceable (6.2 and the Sellers' liability Company shall not be liable to make any payment in respect of such Claim shall absolutely terminate) on the expiry of the period of 6 months after notice of such Claim was given to the Sellers (or any of them) in accordance with clause 7.5, unless proceedings in respect thereof shall have been commenced against the Sellers (and for this purpose proceedings shall not be deemed to have been commenced unless they shall have been issued and validly served upon the Sellers).
7.7 The Sellers shall not be liable in respect of a Claim or group of Claims based on substantially the same facts or circumstances unless the amount that would otherwise be recoverable from the Sellers, but for this clause 7.7, in respect of the Claim exceeds (pound)2,000.
7.8 The Sellers shall not be liable in respect of any Claim unless and until the aggregate amount that would otherwise be recoverable from the Sellers, but for this clause 7.8, in respect of all Claims (after giving due effect to clause 7.7) in relation to each Claim exceeds (pound)20,000, in which event the Sellers shall be liable for the full amount of the Claim and not merely the excess over (pound)20,000.
7.9 Except where it may be prejudicial to the business interests of the Company liability becomes an actual liability or the Buyer, the Buyer shall at all reasonable times make available to the Sellers (at the Sellers' cost) all information and documents relating to the Claim. If requested by the Seller, the Buyer shall give the Sellers and their professional advisers access on reasonable notice to the personnel of the Buyer and/or the Company (as the case may be) and to any relevant premises, chattels, accounts, documents and records within the power, possession or control becomes capable of the Buyer and/or the Company to enable the Sellers and their professional advisers to interview such personnel, and to examine such Claim, premises, chattels, accounts, documents and records and to take copies or photographs of the same at their own expense.
7.10 Where the Buyer or the Company is entitled to recover any sum from another person or firm or company in respect of any matter giving rise to a Claim under this Agreement, the Buyer shall or shall procure that the Company shall take all reasonable steps to enforce such recoverybeing quantified. The Buyer shall not be required to take such steps where it is of the reasonable view that any such action is prejudicial to the business interests of the Company or the Buyer.
7.11 The sole remedy against the Buyer in respect of any Claim shall be an action for damages. Save in the event of fraudulent misrepresentation, no right of rescission shall be available after Completion to the Buyer by reason of any breach of the Warranties or the Tax Covenant.
7.12 The Buyer shall reimburse to the Sellers an amount equal to any sum paid in respect of any Claim which is subsequently recovered by or paid to the Buyer or any member of the Buyer's Group or the Company by any third party less any reasonable costs incurred by the Buyer in connection with such Claim.
7.13 The amount or amounts of any successful Claim or Claims against the Sellers under or in respect of claims under the Tax Covenant (after deducting any reimbursement made pursuant to this schedule) shall be deemed to constitute a reduction in the Consideration.
7.14 Nothing herein shall in any way diminish the Buyer's or the Company's common law duty to mitigate its loss in relation to any Claim.
7.15 Any payment by the Sellers under this agreement to the Buyer shall reduce by that amount any Claims by the Buyer under the Tax Covenant (and vice versa) and the Buyer shall at all times procure that there is no duplication of any claim relating to the same subject matter whether under this agreement or under the Tax Covenant or otherwise.
7.16 Nothing in this clause 6 applies agreement shall prejudice each Investor’s duty under common law to mitigate any loss or liability which is the subject of a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Sellers, their agents or advisersClaim.
Appears in 1 contract
Sources: Subscription Agreement
Limitations on Claims. 7.1 6.1 The definitions and rules of interpretation in this clause apply in this agreementAgreement. CLAIMClaim: a claim by the Buyer for breach of any of the Warranties. SUBSTANTIATED CLAIMSubstantiated Claim: a Claim in respect of which liability is admitted by the party against whom such Claim is brought, or which has been adjudicated on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal. A Claim is CONNECTED connected with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter.
7.2 6.2 This clause limits the liability of the Sellers Seller in relation to any Claim.
7.3 6.3 The maximum aggregate liability of each of the Sellers in respect of Seller for all Substantiated Claims and any claim under the Tax Covenant when taken together shall not exceed each Seller's pro rata portion the value of (pound)4,450,000 in accordance with the percentage in column consideration received by the Seller under clause 3 at the time of Schedule 1any Claim.
7.4 6.4 The Sellers are Seller is not liable for a any Claim to the extent that the Claim:
(a) 6.4.1 relates to matters Disclosed;; or
(b) 6.4.2 relates to any matter specifically and fully provided for in the Accounts Accounts.
6.5 The Seller shall not be liable for any claim if and to the extent that:
6.5.1 an allowance provision or reserve in respect of any liability was subject to the Completion AccountsClaims made or taken into account or payment or discharge of which was taken into account in or preparing the accounts to the full amount of such Claim;
(c) would not have arisen but for something voluntarily done 6.5.2 it is attributable to or intentionally omitted to be done by the Buyer, the Company or their agents after Completion otherwise than in the ordinary course of the business of the Company as carried on at Completion;
(d) arises as a result of any voluntary act or omission of the passing of Buyer or any person deriving title from it or any group of company after completion done or suffered outside the ordinary course of business;
6.5.3 it is arising as a result of a change in the law or regulation after the date of this agreement (whether retrospectively or not) or occurs or arises or, such Claim having arisen, ;
6.5.4 it is increased arising as a result of any change after completion the basis of which the accounts of the Company are prepared or any changes in any accounting or taxation policy of the Company after the date of this agreement;
(e) arises as a result of any failure practise policies or omission by the Company to make any claim, election, surrender or disclaimer, or give any notice, or consent or do any other thing, in connection with the provisions of any enactment or regulation relating to Taxation after Completion, the anticipated making, giving or going of which was Disclosed by the Sellers and was taken into account in computing the provision for Taxation in the Accounts;
(f) arises from an act, event omission, transaction or arrangement prior to Completion occurring at the written request of the Buyer; or
(g) is actually recovered by the Buyer under the terms of any insurance policy of the Buyer or the Company (net of any additional costs incurred by the Company and/or the Buyer as a result of any consequential increase in premiums)principles.
7.5 6.6 The Sellers are Seller is not liable for a Claim unless the Buyer has given the Sellers written Seller notice in writing of the Claim, summarising the nature of the Claim (giving reasonable information regarding as far as it is known to the nature Buyer and an estimate of the value of such Claim):
(a) in the case of a claim made under the Tax Warranties or the Tax Covenant, amount claimed within the period of seven 2 years beginning with the Completion Date; and
(b) in the case of a non-Tax Warranty claim by 31 July 2007, (in each case such date being referred to as the "Expiry Date").
7.6 Any Claim made before the Expiry Date in accordance with clause 7.5 shall, if it has not been previously satisfied, settled or withdrawn, be deemed to have been withdrawn and shall become fully barred and unenforceable (and the Sellers' liability in respect of such Claim shall absolutely terminate) on the expiry of the period of 6 months after notice of such Claim was given to the Sellers (or any of them) in accordance with clause 7.5, unless proceedings in respect thereof shall have been commenced against the Sellers (and for this purpose proceedings shall not be deemed to have been commenced unless they shall have been issued and validly served upon the Sellers).
7.7 The Sellers shall not be liable in respect of a Claim or group of Claims based on substantially the same facts or circumstances unless the amount that would otherwise be recoverable from the Sellers, but for this clause 7.7, in respect of the Claim exceeds (pound)2,000.
7.8 The Sellers shall not be liable in respect of any Claim unless and until the aggregate amount that would otherwise be recoverable from the Sellers, but for this clause 7.8, in respect of all Claims (after giving due effect to clause 7.7) in relation to each Claim exceeds (pound)20,000, in which event the Sellers shall be liable for the full amount of the Claim and not merely the excess over (pound)20,000.
7.9 Except where it may be prejudicial to the business interests of the Company or the Buyer, the Buyer shall at all reasonable times make available to the Sellers (at the Sellers' cost) all information and documents relating to the Claim. If requested by the Seller, the Buyer shall give the Sellers and their professional advisers access on reasonable notice to the personnel of the Buyer and/or the Company (as the case may be) and to any relevant premises, chattels, accounts, documents and records within the power, possession or control of the Buyer and/or the Company to enable the Sellers and their professional advisers to interview such personnel, and to examine such Claim, premises, chattels, accounts, documents and records and to take copies or photographs of the same at their own expense.
7.10 Where the Buyer or the Company is entitled to recover any sum from another person or firm or company in respect of any matter giving rise to a Claim under this Agreement, the Buyer shall or shall procure that the Company shall take all reasonable steps to enforce such recovery. The Buyer shall not be required to take such steps where it is of the reasonable view that any such action is prejudicial to the business interests of the Company or the Buyer.
7.11 The sole remedy against the Buyer in respect of any Claim shall be an action for damages. Save in the event of fraudulent misrepresentation, no right of rescission shall be available after Completion to the Buyer by reason of any breach of the Warranties or the Tax Covenant.
7.12 The Buyer shall reimburse to the Sellers an amount equal to any sum paid in respect of any Claim which is subsequently recovered by or paid to the Buyer or any member of the Buyer's Group or the Company by any third party less any reasonable costs incurred by the Buyer in connection with such Claim.
7.13 The amount or amounts of any successful Claim or Claims against the Sellers under or in respect of claims under the Tax Covenant (after deducting any reimbursement made pursuant to this schedule) shall be deemed to constitute a reduction in the Consideration.
7.14 Nothing herein shall in any way diminish the Buyer's or the Company's common law duty to mitigate its loss in relation to any Claim.
7.15 Any payment by the Sellers under this agreement to the Buyer shall reduce by that amount any Claims by the Buyer under the Tax Covenant (and vice versa) and the Buyer shall at all times procure that there is no duplication of any claim relating to the same subject matter whether under this agreement or under the Tax Covenant or otherwise.
7.16 6.7 Nothing in this clause 6 applies to a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the SellersSeller, their its agents or advisersadvisers to the extent that such conduct inhibited such a claim.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Capital Markets Technologies, Inc.)
Limitations on Claims. 7.1 The definitions and rules Notwithstanding the foregoing:
(i) With respect to any claim seeking recovery of interpretation in this clause apply in this agreement. CLAIM: a claim for any Loss under Section 9.2(a)(i)(A) above (i.e., any breach of any of the Warranties. SUBSTANTIATED CLAIM: a Claim in respect of which liability is admitted representations or warranties (other than the Seller Fundamental Representations) made by the party against whom such Claim is brought, Sellers in this Agreement or which has been adjudicated made by the Sellers in any certificate delivered by or on by a Court of competent jurisdiction and no right of appeal lies in respect of such adjudication, or the parties are debarred by passage of time or otherwise from making an appeal. A Claim is CONNECTED with another Claim or Substantiated Claim if they all arise out of the occurrence of the same event or relate to the same subject matter.
7.2 This clause limits the liability behalf of the Sellers in relation pursuant hereto), other than with respect to any Claimclaims arising from any Intentional Fraud:
(A) No Seller will have any liability for any such Loss until the aggregate amount of all such Losses exceeds an amount equal to $100,000 (the “Deductible”) (in which case the Buyer Indemnified Persons shall only be entitled to indemnification for Losses in excess of the Deductible); and
(B) The Sellers will not have any Liability for any such Loss except pursuant to the Offset Right.
7.3 The maximum aggregate liability of each of the Sellers in respect of all Claims and (ii) No Buyer Indemnified Person shall be entitled to recover any claim Losses under the Tax Covenant shall not exceed each Seller's pro rata portion of (pound)4,450,000 in accordance with the percentage in column 3 of Schedule 1.
7.4 The Sellers are not liable for a Claim this Article IX to the extent that the Claim:
(a) relates amount of such Losses has actually been recovered by such Buyer Indemnified Person from a Person other than another Party to matters Disclosed;
(b) relates this Agreement, and each Buyer Indemnified Person shall, to the extent applicable, use commercially reasonable efforts to seek indemnification or other redress pursuant to the terms of any matter specifically and fully provided for in the Accounts or in the Completion Accounts;
(c) would not have arisen but for something voluntarily done or intentionally omitted Contract to be done by the Buyer, which the Company or their agents after Completion otherwise than in Buyer is a party and by which such Person has the ordinary course of the business of the Company as carried on at Completion;right to seek indemnification from any third party.
(diii) arises The Buyer Indemnified Persons shall not be entitled to indemnification with respect to any Losses as a result of or based upon or arising from any claim or Liability to the passing of extent such claim or any change in law or regulation after the date of this agreement (whether retrospectively or not) or occurs or arises or, such Claim having arisen, Liability is increased as a result of any change in any accounting or taxation policy of the Company after the date of this agreement;
(e) arises as a result of any failure or omission by the Company to make any claim, election, surrender or disclaimer, or give any notice, or consent or do any other thing, in connection with the provisions of any enactment or regulation relating to Taxation after Completion, the anticipated making, giving or going of which was Disclosed by the Sellers and was taken into account in computing determining the provision for Taxation in the Accounts;
(f) arises from an act, event omission, transaction or arrangement prior to Completion occurring at the written request of the Buyer; or
(g) is actually recovered by the Buyer under the terms amount of any insurance policy of adjustment to the Buyer or the Company (net of any additional costs incurred by the Company and/or the Buyer as a result of any consequential increase in premiums).
7.5 The Sellers are not liable for a Claim unless the Buyer has given the Sellers written notice of the Claim (giving reasonable information regarding the nature and an estimate of the value of such Claim):
(a) in the case of a claim made under the Tax Warranties or the Tax Covenant, within the period of seven years beginning with the Completion Date; and
(b) in the case of a non-Tax Warranty claim by 31 July 2007, (in each case such date being referred to as the "Expiry Date").
7.6 Any Claim made before the Expiry Date Upfront Purchase Price in accordance with clause 7.5 shallSection 2.7.
(iv) If any Indemnifying Party makes any indemnification payment pursuant to this Article IX or otherwise by reason of the transactions contemplated hereby under any theory of recovery, if it has not been previously satisfiedsuch Indemnifying Party shall be subrogated, settled or withdrawn, be deemed to have been withdrawn and shall become fully barred and unenforceable (and the Sellers' liability in respect extent of such Claim shall absolutely terminate) on payment and to the expiry extent permitted by applicable Law, to any rights and remedies of the period of 6 months after notice of Indemnified Person to recoup such Claim was given amounts from third parties with respect to the Sellers (matters giving rise to indemnification hereunder. Notwithstanding anything in this Agreement to the contrary, however, no Seller shall be subrogated to any rights or remedies, or otherwise make any claim against the Company or any other Buyer Indemnified Person (regardless of them) in accordance with clause 7.5the facts or the kind of Loss at issue), unless proceedings in respect thereof shall have been commenced and each Seller expressly waives any right of subrogation, contribution, advancement, indemnification or other claim against the Sellers (and for Company or any other Buyer Indemnified Person with respect to any indemnification obligation or any other liability to which such Seller may become subject under or in connection with this purpose proceedings shall not be deemed to have been commenced unless they shall have been issued and validly served upon the Sellers)Agreement.
7.7 (v) The Sellers shall not be liable in respect of a Claim or group of Claims based on substantially the same facts or circumstances unless the amount that would otherwise be recoverable from the Sellers, but for this clause 7.7, in respect of the Claim exceeds (pound)2,000.
7.8 The Sellers shall not be liable in respect of any Claim unless and until the aggregate amount that would otherwise be recoverable from the Sellers, but for this clause 7.8, in respect of all Claims (after giving due effect to clause 7.7) in relation to each Claim exceeds (pound)20,000, in Losses for which event the Sellers a Seller shall be liable for pursuant to this Agreement shall be (i) the full amount of the Claim Total Purchase Price actually received by such Seller (with shares of Buyer Common Stock deemed, for this purpose, to have a value (x) for the Upfront Stock Consideration Shares and not merely the excess over (pound)20,000.
7.9 Except where it may be prejudicial Indemnification Hold-Back Shares equal to the business interests Trailing Average Share Price calculated as of the Company or Agreement Date and (y) for any shares of Buyer’s Common Stock issued upon an Earnout Date the Buyer, the Buyer shall at all reasonable times make available Trailing Average Share Price calculated as of such Earnout Date) and (ii) subject to the Sellers preceding clause (at i), with respect to any Losses in excess of the Sellers' cost) all information and documents relating Indemnification Hold-Back Shares or otherwise subject to the Claim. If requested by Offset Right, such Seller’s pro rata share thereof based on the Seller, the Buyer shall give the Sellers and their professional advisers access on reasonable notice to the personnel proportion of the Buyer and/or the Company (as the case may be) and Total Purchase Price received by such Seller; provided, however, that such limit shall not apply to any relevant premisesSeller in the instance of any Intentional Fraud of such Seller or any Person affiliated with such Seller who has served as an officer, chattelsdirector, accounts, documents and records within the power, possession employee or control consultant of the Buyer and/or the Company to enable the Sellers and their professional advisers to interview such personnel, and to examine such Claim, premises, chattels, accounts, documents and records and to take copies or photographs of the same at their own expenseCompany.
7.10 Where the Buyer or the Company is entitled to recover any sum from another person or firm or company in respect of any matter giving rise to a Claim under this Agreement, the Buyer shall or shall procure that the Company shall take all reasonable steps to enforce such recovery. The Buyer shall not be required to take such steps where it is of the reasonable view that any such action is prejudicial to the business interests of the Company or the Buyer.
7.11 The sole remedy against the Buyer in respect of any Claim shall be an action for damages. Save in the event of fraudulent misrepresentation, no right of rescission shall be available after Completion to the Buyer by reason of any breach of the Warranties or the Tax Covenant.
7.12 The Buyer shall reimburse to the Sellers an amount equal to any sum paid in respect of any Claim which is subsequently recovered by or paid to the Buyer or any member of the Buyer's Group or the Company by any third party less any reasonable costs incurred by the Buyer in connection with such Claim.
7.13 The amount or amounts of any successful Claim or Claims against the Sellers under or in respect of claims under the Tax Covenant (after deducting any reimbursement made pursuant to this schedule) shall be deemed to constitute a reduction in the Consideration.
7.14 Nothing herein shall in any way diminish the Buyer's or the Company's common law duty to mitigate its loss in relation to any Claim.
7.15 Any payment by the Sellers under this agreement to the Buyer shall reduce by that amount any Claims by the Buyer under the Tax Covenant (and vice versa) and the Buyer shall at all times procure that there is no duplication of any claim relating to the same subject matter whether under this agreement or under the Tax Covenant or otherwise.
7.16 Nothing in this clause 6 applies to a Claim that arises or is delayed as a result of dishonesty, fraud, wilful misconduct or wilful concealment by the Sellers, their agents or advisers.
Appears in 1 contract