Common use of Indemnification Amounts Clause in Contracts

Indemnification Amounts. (a) Notwithstanding any provision to the contrary contained in this U.S. SPA, Sellers shall not be obligated to indemnify the BRKR Indemnified Parties for any Losses pursuant to this Article IX to the extent they are a result of any claim made pursuant to Section 9.2(a) unless and until the dollar amount of all Losses in the aggregate from claims made pursuant to Section 9.2(a), Section 10.2(a) of the Swiss Merger Agreement and Section 9.2(a) of the German SPA exceed $3,250,000, in which case Sellers will be obligated to indemnify the BRKR Indemnified Parties for the total amount of Losses including any amounts which would otherwise not be required to be paid by reason of this Section 9.5; provided, however, that in no event shall the aggregate indemnification obligations of Sellers pursuant to Sections 9.2(a), (b) or (c) of this U.S. SPA, Sections 10.2(a), (b) or (c) of the Swiss Merger Agreement, and Sections 9.2(a), (b) or (c) of the German SPA exceed Ninety Two Million Dollars ($92,000,000) (the “Indemnity Cap”); provided, further, that notwithstanding the foregoing, the BRKR Indemnified Parties’ right to seek indemnification hereunder for any Losses arising out of (i) criminal activity or fraud (in each case as determined in a final, non-appealable decision by a court of competent jurisdiction) of Sellers or BioSpin U.S. or (ii) Section 3.8 (Ownership of the Shares), Section 3.9 (Withholding Tax), Section 4.3 (Capitalization of BioSpin U.S.), Section 4.4 (Capitalization of the Subsidiaries; Other Interests) or Section 4.17 (Environmental) shall not be subject to, or limited by, the limits contained in this Section 9.5; provided, further, that with respect to any Losses arising out of Section 3.8 (Ownership of Shares) and Section 3.9 (Withholding Tax), the liability of any Seller beyond the Indemnity Cap shall be several and not joint. Notwithstanding the foregoing, no Seller shall have any liability under this Article IX or otherwise under this U.S. SPA in excess of the amount set forth opposite such Seller’s name under the heading “Individual Selling Shareholders’ Indemnity Cap” as set forth on Schedule 9.5.

Indemnification Amounts. The Seller shall not have liability under Section 8.2(a)(i) until the aggregate amount of the Buyer’s Losses (aother than Tax Losses) Notwithstanding any provision attributable to indemnification claims for which a Claim Notice was properly delivered to the contrary contained in this U.S. SPA, Sellers shall not be obligated to indemnify the BRKR Indemnified Parties for any Losses pursuant to this Article IX to the extent they are a result of any claim made Seller pursuant to Section 9.2(a) unless and until 8.3 exceeds $1,000,000 (the dollar amount of all Losses in the aggregate from claims made pursuant to Section 9.2(a“Deductible Amount”), Section 10.2(a) of the Swiss Merger Agreement and Section 9.2(a) of the German SPA exceed $3,250,000, in which case Sellers will the Buyer shall be obligated entitled to indemnify Losses (other than Tax Losses) attributable to indemnification claims in an amount up to $12,000,000 in the BRKR Indemnified Parties for aggregate (the total amount of Losses including any amounts which would otherwise not be required to be paid by reason of this Section 9.5“Cap Amount”); provided, however, that in no event the Seller shall be liable only for the aggregate indemnification obligations of Sellers pursuant amount by which all Losses (other than Tax Losses) exceed the Deductible Amount (up to Sections 9.2(a), (b) or (c) of this U.S. SPA, Sections 10.2(a), (b) or (c) of the Swiss Merger Agreement, and Sections 9.2(a), (b) or (c) of the German SPA exceed Ninety Two Million Dollars ($92,000,000) (the “Indemnity Cap”Cap Amount); provided, further, that notwithstanding (A) neither the foregoing, Deductible Amount nor the BRKR Indemnified Parties’ right Cap Amount shall apply to seek indemnification hereunder any claim for payment of any Losses arising out Loss under Section 8.2(a)(i) in respect of (i) criminal activity or fraud (in each case as determined in a final, non-appealable decision by a court of competent jurisdiction) of Sellers or BioSpin U.S. or (ii) Section 3.8 (Ownership any breach of the SharesSeller’s representations and warranties in Sections 3.1, 3.2, 3.3 and 3.21, (B) the Deductible Amount shall not apply to any Tax Losses (but Tax Losses shall be subject to the Tax Deductible Amount), ; (C) the Cap Amount shall not apply to any claim for payment of any Loss under Section 3.9 (Withholding Tax), Section 4.3 (Capitalization 8.2(a)(i) in respect of BioSpin U.S.), Section 4.4 (Capitalization any Tax Losses or any breach of the Subsidiaries; Other Interests) or Seller’s representations and warranties in Section 4.17 (Environmental) 3.20. The Seller shall not be subject to, or limited by, have liability in respect of any Buyer’s Losses under Section 8.2(a)(i) in respect of any breach of the limits contained Seller’s representations and warranties in this Section 9.53.15 (the “Tax Losses”) until the aggregate amount of Tax Losses for which a Claim Notice was properly delivered to the Seller pursuant to Section 8.3 exceeds $100,000 (the “Tax Deductible Amount”); provided, furtherhowever, that with respect to any Losses arising out of Section 3.8 (Ownership of Shares) and Section 3.9 (Withholding Tax), the liability of any Seller beyond the Indemnity Cap shall be several and not joint. Notwithstanding the foregoing, no Seller shall have any liability under this Article IX or otherwise under this U.S. SPA in excess of liable only for the amount set forth opposite such Seller’s name under by which all Tax Losses exceed the heading “Individual Selling Shareholders’ Indemnity Cap” as set forth on Schedule 9.5Tax Deductible Amount.

Indemnification Amounts. (a) Notwithstanding any provision to the contrary contained in this U.S. SPASwiss Merger Agreement, Sellers Invest Shareholders shall not be obligated to indemnify the BRKR Indemnified Parties for any Losses pursuant to this Article IX X to the extent they are a result of any claim made pursuant to Section 9.2(a10.2(a) unless and until the dollar amount of all Losses in the aggregate from claims made pursuant to Section 9.2(a10.2(a), Section 10.2(a9.2(a) of the Swiss Merger Agreement U.S. SPA and Section 9.2(a) of the German SPA exceed $3,250,000, in which case Sellers Invest Shareholders will be obligated to indemnify the BRKR Indemnified Parties for the total amount of Losses including any amounts which would otherwise not be required to be paid by reason of this Section 9.510.5; provided, however, that in no event shall the aggregate indemnification obligations of Sellers Invest Shareholders pursuant to Sections 10.2(a), (b) or (c) of this Swiss Merger Agreement, Sections 9.2(a), (b) or (c) of this the U.S. SPA, Sections 10.2(a), (b) or (c) of the Swiss Merger Agreement, and Sections 9.2(a), (b) or (c) of the German SPA exceed Ninety Two Million Dollars ($92,000,000) (the “Indemnity Cap”); provided, further, that notwithstanding the foregoing, the BRKR Indemnified Parties’ right to seek indemnification hereunder for any Losses arising out of (i) criminal activity or fraud (in each case as determined in a final, non-appealable decision by a court of competent jurisdiction) of Sellers Invest Shareholders or BioSpin U.S. Invest or (ii) Section 3.8 (Ownership of the Invest Shares), Section 3.9 (Withholding Tax), Section 4.3 (Capitalization of BioSpin U.S.Invest), Section 4.4 (Capitalization of the Subsidiaries; Other Interests) or Section 4.17 (Environmental) shall not be subject to, or limited by, the limits contained in this Section 9.510.5; provided, further, that with respect to any Losses arising out of Section 3.8 (Ownership of Invest Shares) and Section 3.9 (Withholding Tax), the liability of any Seller Invest Shareholder beyond the Indemnity Cap shall be several and not joint. Notwithstanding the foregoing, no Seller Invest Shareholder shall have any liability under this Article IX X or otherwise under this U.S. SPA Swiss Merger Agreement in excess of the amount set forth opposite such SellerInvest Shareholder’s name under the heading “Individual Selling Shareholders’ Indemnity Cap” as set forth on Schedule 9.59.5 to the U.S. SPA.

Indemnification Amounts. (a) Notwithstanding any provision to the contrary contained in this U.S. SPA, Sellers Seller shall not be obligated have liability under Section 7.2(a) until the aggregate amount of Buyer's Losses attributable to indemnify the BRKR Indemnified Parties indemnification claims under such section for any Losses pursuant which a Claims Notice was properly delivered to this Article IX to the extent they are a result of any claim made Seller pursuant to Section 9.2(a) unless and until 7.3 exceeds $977,000 (the dollar amount of all Losses in the aggregate from claims made pursuant to Section 9.2(a"Seller Basket Amount"), Section 10.2(a) of the Swiss Merger Agreement and Section 9.2(a) of the German SPA exceed $3,250,000, in which case Sellers will be obligated to indemnify the BRKR Indemnified Parties for the total amount of Losses including any amounts which would otherwise not be required to be paid by reason of this Section 9.5; provided, however, that in no event shall once the aggregate amount of Buyer's Losses attributable to indemnification obligations claims under Section 7.2(a) equal or exceed the Seller Basket Amount, all of Sellers Buyer's Losses attributable to such indemnification claims will be indemnifiable by Seller. Seller's obligation to indemnify pursuant to Sections 9.2(athe foregoing shall be limited to $8,793,000 (the "Seller Maximum Amount"). Notwithstanding the foregoing, neither the Seller Basket Amount nor the Seller Maximum Amount shall apply to Losses resulting from (i) the Retained Liabilities (Section 2.10), (bii) or breaches by Seller with respect to representations and warranties set forth in Organization and Related Matters (c) of this U.S. SPA, Sections 10.2(aSection 3.3), Tax Matters (bSection 3.12), those sections of Benefit Plans (Section 3.14) that relate to Losses under an Employee Benefit Plan subject to Title IV of ERISA or (c) that relate to Losses under an Employee Benefit Plan of an ERISA Affiliate of Seller under which no employees of the Swiss Merger AgreementCompanies or any of their Subsidiaries participates or has participated, and Sections 9.2(aEnvironmental Matters (Section 3.15), or for (biii) fraudulent or (c) willful and intentional breaches with the intent to deceive, for all of which Losses the German SPA exceed Ninety Two Million Dollars ($92,000,000) (Seller shall be liable whether or not the “Indemnity Cap”); provided, further, that Seller Basket Amount has been satisfied. Additionally and notwithstanding the foregoing, the BRKR Indemnified Parties’ right to seek indemnification hereunder for any Losses arising out of (i) criminal activity or fraud (in each case as determined in a final, non-appealable decision by a court of competent jurisdiction) of Sellers or BioSpin U.S. or (ii) Section 3.8 (Ownership of the Shares), Section 3.9 (Withholding Tax), Section 4.3 (Capitalization of BioSpin U.S.), Section 4.4 (Capitalization of the Subsidiaries; Other Interests) or Section 4.17 (Environmental) Seller Maximum Amount shall not be subject to, or limited by, apply to Losses resulting from breaches by Seller with respect to representations and warranties set forth in Benefit Plans (Section 3.14). Buyer shall not have liability under Section 7.2(b) until the limits contained in this aggregate amount of Buyer's Losses attributable to indemnification claims under such section for which a Claims Notice was properly delivered to Seller pursuant to Section 9.57.3 exceeds $977,000 (the "Buyer Basket Amount"); provided, furtherhowever, that with respect once the aggregate amount of Seller's Losses attributable to any indemnification claims under Section 7.2(b) equal or exceed the Buyer Basket Amount, all of Seller's Losses arising out of Section 3.8 (Ownership of Shares) and Section 3.9 (Withholding Tax), the attributable to such indemnification claims will be indemnifiable by Buyer. The maximum liability of any Seller beyond Buyer under Section 7.2(b) is $8,793,000 (the Indemnity Cap shall be several and not joint"Buyer Maximum Amount"). Notwithstanding the foregoing, no Seller neither the Buyer Basket Amount nor the Buyer Maximum Amount shall have any liability under this Article IX or otherwise under this U.S. SPA in excess of the amount apply to Losses resulting from (i) breaches by Buyer with respect to representations and warranties set forth opposite such Seller’s name under in Organization and Related Matters (Section 4.3) or (ii) fraudulent or willful and intentional breaches with the heading “Individual Selling Shareholders’ Indemnity Cap” as set forth on Schedule 9.5intent to deceive, for all of which Losses the Buyer shall be liable whether or not the Buyer Basket Amount has been satisfied.

Indemnification Amounts. (a) Notwithstanding any provision to the contrary contained in this U.S. SPA, Sellers The Seller shall not be obligated to indemnify the BRKR Indemnified Parties for any Losses pursuant to this Article IX to the extent they are a result of any claim made pursuant to have liability under Section 9.2(a8.2(a)(i) unless and until the dollar aggregate amount of all the Buyer’s Losses in attributable to indemnification claims exceeds $500,000 (the aggregate from claims made pursuant to Section 9.2(a“Deductible Amount”), Section 10.2(a) of the Swiss Merger Agreement and Section 9.2(a) of the German SPA exceed $3,250,000, in which case Sellers will the Buyer shall be obligated entitled to indemnify the BRKR Indemnified Parties for the total Losses attributable to indemnification claims in an aggregate amount of Losses including any amounts which would otherwise not be required up to be paid by reason a maximum of this Section 9.5thirty-five percent (35%) of the Purchase Price (the “Cap Amount”); provided, however, that in no event the Seller shall be liable only for the aggregate indemnification obligations of Sellers pursuant amount by which all Losses (up to Sections 9.2(a), (bthe Cap Amount) or (c) of this U.S. SPA, Sections 10.2(a), (b) or (c) of exceed the Swiss Merger Agreement, and Sections 9.2(a), (b) or (c) of the German SPA exceed Ninety Two Million Dollars ($92,000,000) (the “Indemnity Cap”)Deductible Amount; provided, further, that notwithstanding (I) the foregoingDeductible Amount and Cap Amount shall not apply to any indemnification claim based on actual fraud or a willful misrepresentation, (II) the Deductible Amount and the Cap Amount shall not apply to indemnification claims made pursuant to Section 8.2(a)(iii) (regarding Former Property), the BRKR Indemnified Parties’ right to seek indemnification hereunder for any Losses arising out of (i) criminal activity or fraud (in each case as determined in a final, non-appealable decision by a court of competent jurisdiction) of Sellers or BioSpin U.S. or (ii) Section 3.8 (Ownership of Deductible Amount and the Shares), Section 3.9 (Withholding Tax), Section 4.3 (Capitalization of BioSpin U.S.), Section 4.4 (Capitalization of the Subsidiaries; Other Interests) or Section 4.17 (Environmental) Cap Amount shall not be subject to, or limited by, the limits contained in this apply to indemnification claims made pursuant to Section 9.58.2(a)(i) related to Section 3.13 (Taxes) (a “Tax Representation Claim”) and indemnification claims made pursuant to Section 8.2(a)(ii) related to Section 7.5 (Tax Matters) (a “Tax Covenant Claim”); provided, furtherhowever, that the Seller shall not have any liability under Section 8.2(a)(i) for a Tax Representation Claim or under Section 8.2(a)(ii) for a Tax Covenant Claim until the aggregate amount of Buyer Losses with respect to Tax Representation Claims and Tax Covenant Claims in respect of Non-Income Taxes exceeds $250,000; (III) the Deductible Amount shall not apply to indemnification claims made pursuant to Section 8.2(a)(iv), (v), (vi), (vii) or (viii) and (III) with respect to any Losses arising out of attributable to indemnification claims made pursuant to Section 3.8 8.2(a)(i) in connection with Section 3.7 (Ownership of SharesLitigation), Section 3.15 (Labor Matters) and Section 3.9 3.24(a) (Withholding TaxProduct Liability; Product Warranties), the liability Buyer shall, subject to the Deductible Amount (if applicable), be entitled to Losses in excess of any Seller beyond the Indemnity Cap shall be several and Amount, but not jointmore than the Purchase Price. Notwithstanding the foregoing, no the Seller shall not have any liability under this Article IX or otherwise under this U.S. SPA Section 8.2(a)(i) with respect to third party claims unless the Claim Notice with respect thereto was properly delivered to the Seller in excess of the amount set forth opposite such Seller’s name under the heading “Individual Selling Shareholders’ Indemnity Cap” as set forth on Schedule 9.5accordance with Section 8.3.

Indemnification Amounts. (a) Notwithstanding any provision to the contrary contained in this U.S. German SPA, Sellers shall not be obligated to indemnify the BRKR Purchaser Indemnified Parties for any Losses pursuant to this Article IX to the extent they are a result of any claim made pursuant to Section 9.2(a) unless and until the dollar amount of all Losses in the aggregate from claims made pursuant to Section 9.2(a)) of this German SPA, Section 10.2(a) of the Swiss Merger Agreement and Section 9.2(a) of the German U.S. SPA exceed $3,250,000, in which case Sellers will be obligated to indemnify the BRKR Purchaser Indemnified Parties for the total amount of Losses including any amounts which would otherwise not be required to be paid by reason of this Section 9.5; provided, however, that in no event shall the aggregate indemnification obligations of Sellers pursuant to Sections 9.2(a), (b) or (c) of this U.S. German SPA, Sections 10.2(a), (b) or (c) of the Swiss Merger Agreement, Agreement and Sections 9.2(a), (b) or (c) of the German U.S. SPA exceed Ninety Two Million Dollars ($92,000,000) (the “Indemnity Cap”); provided, further, that notwithstanding the foregoing, the BRKR Purchaser Indemnified Parties’ right to seek indemnification hereunder for any Losses arising out of (i) criminal activity or fraud (in each case as determined in a final, non-appealable decision by a court of competent jurisdiction) of Sellers or BioSpin U.S. the Target Companies or (ii) Section 3.8 (Ownership of the Shares), Section 3.9 (Withholding Tax), Section 4.3 (Capitalization of BioSpin U.S.Bruker Physik), Section 4.4 (Capitalization of the Subsidiaries; Other Interests) ), or Section 4.17 4.16 (Environmental) shall not be subject to, or limited by, the limits contained in this Section 9.5; provided, further, that with respect to any Losses arising out of Section 3.8 (Ownership of Shares) and Section 3.9 (Withholding Tax), the liability of any Seller beyond the Indemnity Cap shall be several and not joint. Notwithstanding the foregoing, no Seller shall have any liability under this Article IX or otherwise under this U.S. German SPA in excess of the amount set forth opposite such Seller’s name under the heading “Individual Selling Shareholders’ Indemnity Cap” as set forth on Schedule 9.59.5 to the U.S. SPA.