M&A Boot Camp booklet 2023 - Flipbook - Page 139
(d) Intentional Misrepresentation; Fraud. Notwithstanding anything to the contrary contained in Section 9.1(a) or Section 9.1(b), the
limitations set forth in Section 9.1(a) and 9.1(b) shall not apply in the case of claims based upon intentional misrepresentation or fraud. For
the purposes of this Section 9, the term “fraud” is intended to encompass circumstances involving a misrepresentation made knowingly,
intentionally or with reckless indifference to the truth, rather than mere negligence or gross negligence.
(e) Representations Not Limited. The representations, warranties, covenants and obligations of the Company, Parent and Merger Sub,
and the rights and remedies that may be exercised by the Indemnitees, shall not be limited or otherwise affected by or as a result of any
information furnished to, or any investigation made by or knowledge of, any of the Indemnitees or any of their Representatives.
Notwithstanding anything contained in this Agreement, no party hereto makes any representations or warranties whatsoever as to the
accuracy of any estimates, projections, forecasts and budgets (it being understood, however, that: (i) the Company represents and warrants
to Parent that all such estimates, projections, forecasts and budgets have been prepared in good faith based upon assumptions and
information that the Company reasonably believed to be true and correct as of the time such estimates, projections, forecasts or budgets
were made available to Parent; and (b) no provision in this sentence or elsewhere in this Agreement shall limit any party’s rights or remedies
in the case of fraud).
(f) Disclosure Schedule. For purposes of this Agreement, each statement or other item of information set forth in the Disclosure
Schedule or in any update to the Disclosure Schedule shall be deemed to be a representation and warranty made by the Company in this
Agreement.
9.2 Indemnification.
(a) Indemnification by the Stockholders. From and after the Effective Time (but subject to Section 9.1), each Effective Time Holder
(collectively, the “Indemnitors”), severally and not jointly, shall hold harmless and indemnify each of the Indemnitees from and against, and
shall compensate and reimburse each of the Indemnitees for, any Damages which are directly or indirectly suffered or incurred by any of the
Indemnitees or to which any of the Indemnitees may otherwise directly or indirectly become subject (regardless of whether or not such
Damages relate to any third party claim) and which arise directly or indirectly from or as a result of, or are directly or indirectly connected
with:
(i) any inaccuracy in or breach of any representation or warranty made by the Company in this Agreement as of the date of this
Agreement (without giving effect to: (i) any materiality or similar qualification limiting the scope of such representation or warranty; or
(ii) any update of or modification to the Disclosure Schedule made or purported to have been made on or after the date of this
Agreement);
(ii) any inaccuracy in or breach of any representation or warranty made by the Company: (i) in this Agreement as if such
representation or warranty was made on and as of the Closing; or (ii) in the Company Closing Certificate (in each case, without giving
effect to: (A) any materiality or similar qualification limiting the scope of such representation or warranty; or (B) any update of or
modification to the Disclosure Schedule made or purported to have been made on or after the date of this Agreement);
(iii) any inaccuracy in or breach of any representation or warranty set forth in the Merger Consideration Certificate;
(iv) any breach of any covenant or obligation of the Company in this Agreement;
49.