|ENVISION HEALTHCARE CORP filed this Form 8-K on 08/10/2017|
(j) The right to indemnification, reimbursement or other remedy based upon any representations, warranties, covenants and obligations set forth in this Agreement shall not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement, with respect to the accuracy or inaccuracy of or compliance with any such representation, warranty, covenant or obligation. The waiver of any condition based upon the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, shall not affect the right to indemnification, reimbursement or other remedy based upon such representations, warranties, covenants or obligations.
(k) The parties agree that any indemnification made pursuant to this Article X shall be treated as an adjustment to the Final Transaction Consideration for all foreign, federal, state, and local income Tax purposes, unless otherwise required by applicable Law.
10.4 Limitations on Liability.
(a) The maximum aggregate Liability of the Public Company and Seller, on the one hand, or Buyer, on the other hand, as the case may be, pursuant to Section 10.3(a) or Section 10.3(b) shall not exceed the Final Transaction Consideration; provided that this limitation shall not apply to any indemnity claim relating to Tax matters, including Pre-Closing Tax Liabilities.
(b) For the purposes of calculating Losses to which the Indemnitees are entitled under this Article X, (i) except to the extent actually paid to an unrelated third party as a result of a final, non-appealable determination in respect of a Third-Party Claim, such Losses shall not include any punitive or exemplary damages; (ii) such Losses shall be determined without duplication of recovery by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement; (iii) such Losses shall not include any amounts of such Losses which were taken into account (including with respect to any reserves) in the determination of the amount of any post-Closing adjustment pursuant to Section 3.5; (iv) such Losses shall be reduced by the amount of any proceeds that any Indemnitee actually receives pursuant to the terms of any insurance policies, indemnities or other reimbursement arrangements, in each case, net of any insurance premium increases resulting therefrom with respect to such Losses; provided, however, such Indemnitee shall promptly reimburse the Indemnifying Party for any subsequent recoveries of the amount of such previously indemnified Losses (if previously indemnified hereunder) so as to avoid a double recovery; (v) such Losses shall be reduced by the amount of any actual prior or subsequent recovery by Indemnitee from any other Person with respect to such Losses; provided, however, such Indemnitee shall promptly reimburse the Indemnifying Party for any subsequent recoveries of the amount of such previously indemnified Losses (if previously indemnified hereunder) so as to avoid a double recovery, and (vi) such Losses shall be reduced by the amount by which the Tax liability of a party, with respect to a taxable period, is actually reduced as a result of such Losses (net of any Tax cost actually incurred by the party arising from the receipt of the indemnity payments hereunder), calculated by computing the amount of Taxes before and after inclusion of any Tax items attributable to such Losses for which indemnification was made and treating such Tax items attributable to such Losses as the last items claimed for such taxable period; provided, however, such Indemnitee shall