Limits on Indemnification Sample Clauses
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Limits on Indemnification. Except as stated in Paragraph 6, there shall be no indemnification pursuant to this Indemnification Agreement:
(a) to the extent that payment for the same claims or amounts are actually made to the Indemnitee under a valid and collectible insurance policy; provided, however, that if it should subsequently be determined that the Indemnitee is not legally entitled to retain any such payment, the restriction on indemnification pursuant to this subparagraph (a) shall no longer apply;
(b) to the extent that the Indemnitee is indemnified or receives a recovery for the same claims or amounts otherwise than pursuant to this Indemnification Agreement; provided, however, that if it should subsequently be determined that the Indemnitee is not legally entitled to retain any such recovery, the restriction on indemnification pursuant to this subparagraph (b) shall no longer apply; -4-
(c) on account of any violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, and rules promulgated thereunder;
(d) on account of any violation of Section 10(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any rules promulgated thereunder, or similar state law, to the extent that such violation is based on (i) the purchase or sale of a security by Indemnitee or a person affiliated with Indemnitee while Indemnitee is in possession of material nonpublic information about the Company, or (b) the communication of material nonpublic information about the Company in connection with any transaction on or through the facilities of a national securities exchange or from or through a broker or dealer, other than as part of a securities offering by the Company;
(e) with respect to any transaction from which the Indemnitee derived an improper personal benefit to which he or she is not legally entitled;
(f) for the return of any remuneration paid to the Indemnitee that is held by any court in a final judgment to have been illegal or improper;
(g) to the extent that the Indemnitee's action or failure to act was (i) not in good faith, or (ii) in the case of conduct Indemnitee's official capacity with the Company, not in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company, or, in other cases, conduct was opposed to the Company's best interests, or (iii) with respect to any criminal Action, with reasonable cause to believe his or her conduct was unlawful; or
(h) if a final nonappealable decision by a cour...
Limits on Indemnification. (a) The Seller Parties shall not have any obligation to indemnify Buyer Indemnitees with respect to any Buyer Indemnifiable Losses arising under Section 5.2(a)(i) until Buyer Indemnitees first have suffered aggregate Buyer Indemnifiable Losses in excess of $25,000 (the “Seller Indemnification Basket”) (at which point, subject to the limitations set forth in this Article V, the Seller Parties shall indemnify Buyer Indemnitees for all such Buyer Indemnifiable Losses including the Seller Indemnification Basket). Amounts finally paid to Buyer pursuant to the Post-Closing Adjustment will not count toward calculation of the Seller Indemnification Basket. The limitations of this Section 5.3(a) shall not apply to any Losses arising out of, in connection with or resulting from a breach of a Fundamental Representation by any Seller Party.
(b) Any claim by any Buyer Indemnitee for Buyer Indemnifiable Losses arising from Section 5.2 shall first be made against the Escrow Amount, if applicable, and then directly against any of the Seller Parties. After the Escrow Amount is exhausted or any non-exhausted portion thereof is paid to the Seller Parties, Buyer shall have the right to set off against the Earn-Out Amount and shall also have direct recourse against each of the Seller Parties, jointly and severally, with respect to claims for indemnification or claims related to the Post-Closing Adjustment.
(c) Buyer shall not have any obligation to indemnify Seller Indemnitees with respect to any Seller Indemnifiable Losses arising under Section 5.2(b)(i) until Seller Indemnitees have first suffered aggregate Seller Indemnifiable Losses in excess of $25,000 (the “Buyer Indemnification Basket”) (at which point, subject to the limitations set forth in this Article V, Buyer shall indemnify Seller Indemnitees for all such Seller Indemnifiable Losses, including the Buyer Indemnification Basket). Notwithstanding the foregoing, the provisions respecting the Buyer Indemnification Basket shall not apply to or excuse or otherwise diminish Buyer’s obligations to pay any portion of the Total Purchase Price due to Seller under this Agreement. The limitations of this Section 5.3(c) shall not apply to any Losses arising out of, in connection with or resulting from a breach of a Fundamental Representation by Buyer.
(d) Notwithstanding anything to the contrary contained herein, the aggregate Liability of Buyer for Seller Indemnifiable Losses arising under Section 5.2(b)(i) from a breach of a r...
Limits on Indemnification. (a) Notwithstanding the provisions of Section 8.01, the Company shall not be liable for any claim for indemnification made pursuant to Section 8.01(a) (other than any claim for indemnification based on misrepresentations or breaches of warranties as set forth in Sections 3.01 and 3.02), unless and until the aggregate amount of indemnifiable Losses which may be recovered exceeds US$5,000,000 (the “Basket Amount”), whereupon the Indemnified Party shall only be entitled to indemnification for the amount of such Losses in excess of the Basket Amount, and the maximum amount of indemnifiable Losses which may be recovered from the Indemnifying Party arising out of or resulting from the causes set forth in Section 8.01(a) shall not exceed US$100,000,000.
(i) If the indemnification has been provided in any circumstance set forth below or the benefits have been disclosed pursuant to clause (D) below, then no claim for indemnification shall be made and the Company is not liable for any indemnification in accordance with Section 8.01:
(A) The Indemnified Party has actually received the insurance indemnity to the extent related to such request;
(B) The Indemnified Party has actually received the payment from a third party directly related to such indemnifiable Losses;
(C) The Indemnified Party has actually realized any tax benefits to the extent related to such indemnifiable Losses;
(D) Such facts, events, and related matters have been disclosed in this Agreement and exhibits hereof, other Transaction Documents or other documents in connection therewith and in the due diligence as set forth in Section 3.09. For purposes of calculating any tax benefits as referred to in clause (C) above or Section 8.03(b)(ii) below, if any taxes payable shall have been reduced accordingly by reason of such unpaid Loss, the Indemnified Party shall be deemed have “actually realized” the net tax benefits. The indemnifiable amount under this Section shall be adjusted accordingly to reflect any final decision in connection with tax matters of the Indemnified Party. The payments between the Parties shall be made accordingly to reflect such adjustment, if applicable.
(ii) If a claim for indemnification arises or increases merely by virtue of any action taken by the Company in the period between the date of this Agreement and the Closing under the written request from the Subscriber, such claim shall not be made and neither the Parentco nor the Company shall have any liability under Section 8.0...
Limits on Indemnification. (a) No claim may be asserted nor may any Action be commenced against either party for breach of any representation, warranty, covenant or agreement contained herein, unless written notice of such claim or action is received by such party describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or Action on or prior to the date on which the representation, warranty, covenant or agreement on which such claim or Action is based ceases to survive as set forth in Section 9.01, irrespective of whether the subject matter of such claim or action shall have occurred before or after such date.
(b) Notwithstanding anything to the contrary contained in this Agreement: (i) an Indemnifying Party shall not be liable for any claim for indemnification pursuant to Section 9.02(a), unless and until the aggregate amount of indemnifiable Losses which may be recovered from the Indemnifying Party equals or exceeds $30,500,000 after which the Indemnifying Party shall be liable only for all Losses in excess of such amount; (ii) no Losses may be claimed under Section 9.02(a) by any Indemnified Party or shall be included in calculating the aggregate Losses set forth in clause (i) above other than Losses in excess of $100,000 resulting from any single claim or aggregated claims arising out of the same or substantially similar facts, events or circumstances; (iii) the maximum amount of indemnifiable Losses which may be recovered from an Indemnifying Party arising out of or resulting from the causes set forth in Section 9.02(a) shall be an amount equal to $534,000,000; and (iv) neither party hereto shall have any liability under any provision of this Agreement or any Ancillary Agreement for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement or any Ancillary Agreement; provided, however, that the limits set forth in clauses (i), (ii) and (iii) shall not apply to (x) any indemnifiable Losses arising out of the breach of the representations and warranties in Sections 3.01, 3.02, 3.03, 3.20, 3.21 and 4.01, (y) any actions, omissions, facts and circumstances occurring prior to the Closing Date which are violations of any of the obligations of the Company and its Affiliates contained in the Settlement Agreements or (z) any indemnifiable Losses arising out of the Retained Clai...
Limits on Indemnification. (a) Notwithstanding anything to the contrary contained in this Agreement: (i) except with respect to claims relating to the Seller Fundamental Reps, Seller is not liable for any claim for indemnification pursuant to Section 6.2 unless and until the aggregate amount of indemnifiable Losses under that section equals or exceeds 1% of the Purchase Price, after which point the Seller is obligated to indemnify the Buyer Indemnified Party from and against any and all amounts of indemnifiable Losses that exceed 1% of the Purchase Price; (ii) except with respect to claims relating to the Seller Fundamental Reps, the maximum amount of indemnifiable Losses that may be recovered from the Seller is an amount equal to 20% of the Purchase Price; (iii) the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller arising out of or resulting from a breach of a Seller Fundamental Rep is an amount equal to 100% of the Purchase Price; and (iv) Buyer is not entitled to indemnification for breach of Section 2.10 (Taxes) with respect to any Post-Closing Tax Period. This section does not apply with respect to indemnification under Section 6.3.
(b) In calculating the indemnifiable Losses suffered by the Indemnified Party, the amount of any claim is calculated net of any Tax benefit to the Indemnified Party as a result of the Loss and is reduced by any amounts the Indemnified Party has received from third parties in connection with the matter, including any indemnification or other recovery under any contract, agreement, or arrangement between a Buyer Indemnified Party and any third party and any insurance proceeds. The Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including pursuing third party recoveries and incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss. Nothing in this section precludes an Indemnified Party from giving notice of its indemnity claim before exhausting its remedies. If the Indemnified Party receives any third party payments after an indemnification payment is made that relates thereto, the Indemnified Party shall promptly repay to the Indemnifying Party the amount of the indemnification payment the Indemnifying Party would not have paid had the third-party payment reduced the original indemnification payment....
Limits on Indemnification. Unless, and then only to the extent that, a court of competent jurisdiction acting pursuant to Section 6 of this Agreement or the Delaware General Corporation Law, determines that, in view of the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification, the Corporation shall not indemnify Indemnitee under this Agreement:
(1) in connection with a Proceeding by or in the right of the Corporation, except for reasonable Expenses (including an excise tax assessed with respect to an employee benefit plan) and amounts paid in settlement not exceeding, in the judgment of the Board, the estimated expense of litigating the Proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement of the Proceeding, including any appeal thereof; or
(2) in connection with a Proceeding by or in the right of the Corporation with respect to any claim, issue or matter as to which Indemnitee shall have been adjudged liable to the Corporation.
Limits on Indemnification. Notwithstanding anything to the contrary contained in this Agreement: (a) no Indemnifying Party shall be liable for any claim for indemnification pursuant to Section 9.2(a)(i), Section 9.2(b)(i), Section 9.2(c) and Section 9.2(d), as the case may be, unless and until the aggregate amount of indemnifiable Losses which may be recovered from the Indemnifying Parties equals or exceeds $547,500 (the “Basket Amount”), in which case the Indemnifying Parties shall only be liable for the amount of such Losses in excess of the Basket Amount; (b) an Indemnifying Party shall not be liable for any claim for indemnification pursuant to Section 9.3(a) unless and until the aggregate amount of indemnifiable Losses which may be recovered from the Indemnifying Party equals or exceeds the Basket Amount, in which case the Indemnifying Party shall only be liable for the amount of such Losses in excess of the Basket Amount; (c) the maximum aggregate amount of indemnifiable Losses which may be recovered from all Indemnifying Parties pursuant to Section 9.2(a)(i) and (ii) (in respect of any covenant or agreement requiring performance at or prior to the Closing), Section 9.2(b)(i) and (ii) (in respect of any covenant or agreement requiring performance at or prior to the Closing), Section 9.2(c) and Section 9.2(d), as the case may be, shall be an amount equal to $547,500; (d) the maximum aggregate amount of indemnifiable Losses which may be recovered from Indemnifying Parties pursuant to Section 9.3(a) and Section 9.3(b) (in respect of any covenant or agreement requiring performance at or prior to the Closing), shall be an amount equal to $2,700,000; and (e) the Sellers shall not be obligated to indemnify the Buyer or any other Person with respect to any Loss to the extent that a specific accrual or reserve for the amount of such Loss was taken into account in calculating the Net Adjustment Amount; provided, that (i) the foregoing clauses (a) and (b) shall not apply to Losses arising out of or relating to the breach or inaccuracy of any Fundamental Representation, and (ii) the foregoing clauses (a), (b), (c) and (d) shall not apply to Losses in the event of Fraud.
Limits on Indemnification. Indemnitor's liability under this Section 9 shall be limited as follows:
Limits on Indemnification. (a) Other than with respect to circumstances in which the Assigning Parties or the Buying Parties (as applicable) is finally adjudicated by a court of competent jurisdiction to have committed fraud, any claims for indemnification made by any Assignee Indemnified Party pursuant to Section 6.2(a) (related to Assigning Parties representations and warranties, generally) or any claims for indemnification made by any Assignor Indemnified Party pursuant to Section 6.3(a) (related to Buying Parties representations and warranties, generally) will be paid only to the extent that the aggregate amount of indemnifiable Losses by such Assignee Indemnified Party or such Assignor Indemnified Party (as applicable) exceeds an amount equal to $25,000 with the noted exception below (the “Deductible”) at which point the Assigning Parties or the Buying Parties or Assignee shall only be liable for the portion in excess of the Deductible up to a maximum aggregate amount of $500,000 (the “Cap”). The Deductible does not apply to the Note or any Make-Whole Payments, vendor revenue sharing payments, ticket sales royalties, festival performance payments or other payments by the Buying Parties to the Assigning Parties contemplated under this Agreement payable by the Buying Parties to the Assigning Parties.
(b) Notwithstanding anything to the contrary in this Agreement:
(i) no Assignee Indemnified Party and no Assignor Indemnified Party shall be entitled to indemnification, to ▇▇▇ for damages or to assert any other right or remedy under this Agreement (whether under this ARTICLE VI or otherwise) against the Assignor or any of its Affiliates with respect to any Loss, cause of action or other claim to the extent it (A) is primarily a possible or potential Loss, cause of action or claim that such Party believes may be asserted rather than an actual Loss, cause of action or claim that has, in fact, been filed of record against such Party or one of its Affiliates or paid or incurred by such Party or one of its Affiliates, (B) is a Loss, cause of action or claim with respect to which such Party or any of its Affiliates has taken action (or caused action to be taken) to accelerate the time period in which such matter is asserted or payable, (C) has recovered or is entitled to recover, in respect of such Loss, cause of action of claim, from any third party (including an insurance provider), or (D) failed to give timely notice of such Loss, cause of action or claim, to the extent the other Party...
Limits on Indemnification. (a) The aggregate amount of Losses under Sections 6.2(a)(i) and 6.2(b)(i) as to which Buyer shall be entitled to indemnification hereunder shall not exceed $1,500,000. Subject to the limitation of the preceding sentence, notwithstanding any other provision of this Agreement or the Employment Agreement and in addition to any other rights and remedies available to Buyer, (i) KKI hereby acknowledges and agrees that Buyer shall have the right of set-off and reduction against any and all Earnout Shares now or hereafter owed to KKI under this Agreement in respect of all Losses specified in Section 6.2(a) with respect to which Buyer is entitled to indemnification under this Article VI and (ii) ▇▇▇▇ hereby acknowledges and agrees that Buyer shall have the right of set-off and reduction against any and all amounts now or hereafter owned to ▇▇▇▇ under the Employment Agreement and his proportionate share of any Earnout Shares in respect of all Losses referred to in Section 6.2(b) with respect to which Buyer is entitled to indemnification under this Article VI. Buyer agrees to notify KKI or ▇▇▇▇, as the case may be, after any such set-off by Buyer; provided that the failure to give such notice shall not affect the validity thereof.
(b) KKI and ▇▇▇▇ shall not be liable to Buyer for any Loss specified in Section 6.2 above unless the aggregate amount of all such Losses exceeds $50,000 in the aggregate, in which case Buyer shall be entitled to be indemnified for all of its Losses, subject to the provisions of Section 6.5(a) above.