Indemnification Threshold and Limitations. (i) Except as set forth below, there shall be no liability for Bionik under Section 6.3 unless the aggregate amount of Losses incurred by the Company Indemnified Parties exceeds $200,000 (the “Company Indemnification Threshold”) in the aggregate, in which event the entire aggregate amount of the Losses above $100,000 shall be indemnifiable pursuant to Section 6.3(a), and provided further that, except as provided in Section 6.6, the aggregate amount of Losses for which Bionik shall be liable shall in no event exceed the value at the Closing Date of the Aggregate Share Consideration.
(ii) Subject to the last sentence of Section 6.3(a) and Section 6.6, the Company Indemnified Parties’ sole and exclusive remedy for any Losses incurred directly or indirectly as a result of any of the items referred to in clauses (i) and (ii) of Section 6.3(a) shall be indemnification pursuant to this Article VI.
(iii) Notwithstanding anything to the contrary herein, there shall be no liability for Bionik or the holders of Company Common Stock for special, punitive, exemplary, incidental, consequential or indirect damages, whether based on contract, tort, strict liability, other law or otherwise unless such damages are paid to a third party.
(iv) In the event that an insurance recovery is made by any Indemnified Party with respect to any Loss for which any such Person has been indemnified by the Indemnifying Party hereunder, then a refund equal to the aggregate amount of the recovery shall be made promptly to the Indemnifying Party (as defined below), net of any collection costs, co-pays, deductibles and premium adjustments, if any.
(v) With respect to any claim to which Bionik may be entitled to indemnification under this Section 6.3, Bionik shall take all commercially reasonable steps to mitigate all Losses; provided that the reasonable costs of such mitigation shall be deemed to be Losses for which the Stockholders would have an indemnification obligation under Section 6.2.
Indemnification Threshold and Limitations. Any request for indemnification by an indemnified party under the indemnification procedures of this Article 4 regarding the breach of any representation or warranty under this Agreement must be asserted by such indemnified party prior to the expiration of the applicable survival period as set forth in Section 65. Notwithstanding any provision to the contrary contained in this Agreement, neither Buyer nor Seller shall make any request for indemnification against the other party for any Breach Claim under this Agreement until the dollar amount of all losses to such other party for such Breach Claims suffered after the Closing, shall exceed in the aggregate the amount of $300,000, and, if such amount is exceeded, Buyer or Seller, as the case may be, shall be required to pay the entire amount of such aggregate loss to the other party for all such Breach Claims; provided, however, that a party's obligation and liability for any and all Breach Claims shall not exceed in the aggregate an amount equal to the purchase price set forth in Section 13. Without regard to the above-mentioned $300,000 aggregate Claim threshold:
(i) Seller shall reimburse Buyer for any and all Liability Claims, and (ii) Buyer shall reimburse Seller for any and all Warranty Claims.
Indemnification Threshold and Limitations. (1) Except as set forth below, there shall be no liability for any Stockholder under Section 6.2 unless the aggregate amount of Losses incurred by the Indemnified Parties exceeds $500,000 (the “Indemnification Threshold”) in the aggregate, in which event the entire aggregate amount of the Losses shall be indemnifiable pursuant to Section 6.2(a) subject to the limitations on liability in this Section 6.2.
(2) Subject to Section 6.5 and Section 7.10, the Indemnified Parties’ sole and exclusive remedy for any Losses incurred directly or indirectly in connection with this Agreement (other than Losses resulting from fraud) shall be indemnification pursuant to this Article VI. Subject to Section 6.5, the liability of the Stockholders under and the right of the Indemnified Parties to seek such indemnification shall be limited solely and exclusively to the Escrow Amount (other than Losses (i) resulting from fraud, (ii) resulting from a breach of the representations contained in Section 2.3(a) or (c), in Section 2.4(a) or (b), in Section 2.16 or in Section 2.20 or (iii) referred to in Section 6.2(a)(iv)). Nothing in this Article VI shall limit the liability of the Company for any willful breach of any representation, warranty, covenant or agreement if the Merger is not consummated.
(3) In the event of Losses resulting from a breach of the representations contained in Section 2.3(a) or (c), in Section 2.4(a) or (b), in Section 2.16 or in
Indemnification Threshold and Limitations. Notwithstanding any contrary provision of this Section 10:
(a) The Shareholders shall have no obligation to provide indemnification for Buyer Losses pursuant to this Section 10 unless and until the aggregate amount of all Buyer Losses for which the Shareholders would otherwise be obligated to provide reimbursement pursuant to this Section 10 exceeds an amount equal to Five Hundred Thousand Dollars ($500,000) (the "Basket Amount") in which event the Shareholders shall be jointly and severally liable for all Buyer Losses for which they would otherwise be liable pursuant to this Section 10; provided that the foregoing limitation shall not apply to Buyer Losses resulting from (x) any breach of a representation or warranty contained in any of Sections 4.1, 4.2, 4.4, 4.13, 4.14, 4.15, 4.16, 4.20, 4.27(c) or the last sentence of 4.27(f) (the "Excluded Representations"), (y) any claim for indemnification pursuant to Sections 10.1(c), (d), (e), (f) or (g), or (z) the breach of any covenant or agreement of the Shareholders included in this Agreement or any Related Writing (collectively, the "Seller Basket Exclusions"). Once Buyer Losses have exceeded the Basket Amount, the Shareholders shall be jointly and severally obligated to pay all Buyer Losses in excess of the Basket
Indemnification Threshold and Limitations. (a) No Target or Seller shall have any obligation to indemnify, in the aggregate, any Parent Indemnitees, singly or collectively, pursuant to this Article XI until the aggregate indemnification claims against all Sellers, but for this sentence, exceed U.S. $50,000 (the "THRESHOLD AMOUNT"); provided, however, that once such amount exceeds the Threshold Amount, the Parent Indemnitees shall be entitled to recover all amounts to which they are entitled, other than the amounts used to satisfy the Threshold Amount.
(b) The Indemnities provided for in Sections 11.1(a) and 11.1(c) are expressly limited to Claims which are asserted within one year of the Initial Closing; provided that (i) the representations and warranties contained in Sections 4.17 and 4.29 and indemnification with respect thereto shall survive until the expiration of the statute of limitations with respect to the subject matter thereof; and (ii) the representations and warranties contained in Section 4.2, Section 4.15(b) and Section 4.33, and indemnification with respect thereto shall survive forever.
Indemnification Threshold and Limitations. PROEZA SHALL HAVE NO OBLIGATION TO INDEMNIFY, IN THE AGGREGATE, ANY TOWER INDEMNITEES OR THE COMPANY, SINGLY OR COLLECTIVELY, PURSUANT TO SECTION 6.1 UNTIL THE AGGREGATE INDEMNIFICATION CLAIMS PURSUANT TO SECTION 6.1 AND 6.3, BUT FOR THIS SENTENCE, EXCEED US$2,500,000 (THE "THRESHOLD AMOUNT") (and also excluding all Claims for amounts less than US$100,000, none of which shall in any event be cognizable hereunder or count towards the Threshold Amount); PROVIDED that once such amount exceeds the Threshold Amount, the Tower Indemnitees or the Company shall be entitled to recover all amounts in excess of the Threshold Amount to which they are entitled; and PROVIDED FURTHER that indemnification in respect of any breach of or inaccuracy in the representations and warranties of Proeza contained in Sections 3.2.13 shall not be subject to this clause (i) and shall not count towards the Threshold Amount.
Indemnification Threshold and Limitations. All Indemnifiable Claims must be asserted prior to or upon the termination of the Cash Escrow Period (as hereinafter defined). Notwithstanding Section 8.2 hereof, the Holder shall have no liability under this Article VIII unless and until the aggregate amount of Damages exceeds $25,000, in which event the Holder shall be liable for the full amount of the Damages.
Indemnification Threshold and Limitations. Neither Take-Two, on the one hand, or any of the Selling Stockholders, on the other hand, shall be liable to the others under this Section 5 except to the extent that the aggregate of all Losses incurred by Take-Two, on the one hand, or any or all of the Selling Stockholders, on the other hand, exceeds One Hundred Fifty Thousand Dollars ($150,000) and then only to the extent of such excess. With respect to any Selling Stockholder, (i) the aggregate amount payable by such Selling Stockholder for all Losses shall not exceed the Purchase Price paid to such Selling Stockholder as set forth on Schedule 2.1 and (ii) the aggregate amount payable by such Selling Stockholder with respect to any particular Loss shall not exceed such Selling Stockholder's Pro Rata
Indemnification Threshold and Limitations. (a) There shall be no liability under Section 7.2 unless the aggregate amount of Losses, Individual Losses or Shareholder Losses exceed $250,000 (the "INDEMNIFICATION THRESHOLD") and then only to the extent of such excess. For purposes of determining whether the Indemnification Threshold has been reached, claims for Losses, Individual Losses or Shareholder Losses may be aggregated. The Indemnification Threshold shall not apply with respect to (i) Losses based on (1) claims based on fraud and (2) breaches of the representations and warranties contained in Sections 2.2 and 2.4, (ii) Individual Losses based on (1) claims based on fraud and (2) breaches of -49- 57 the representations and warranties contained in Sections 2.27(c) and (g) or (iii) Shareholder Losses based on (1) claims based on fraud and (2) breaches of the representations and warranties contained in Sections 3.2 and 3.3.
(b) The maximum liability of any Management Shareholder for Losses and Shareholders for Individual Losses shall not exceed an amount equal to the Total Consideration (as defined below) received by such Shareholder; provided however, that if a claim is based on fraud or on breaches of the representations and warranties contained in Sections 2.2 and 2.4 that are committed by a Management Shareholder, such Management Shareholder shall be liable for the total amount of such Losses. In addition, except in the case of a breach by a Management Shareholder of representations in Section 2.27, each Management Shareholder's indemnification obligation shall be limited to a percentage of the Losses equal to its, his or her pro rata portion ownership of Exchangeco immediately prior to the Closing. For purposes of this Agreement "TOTAL CONSIDERATION" shall be determined for each Shareholder on the date that a Loss is to be paid by a Shareholder (the "PAYMENT DATE") and shall equal the value of: (i) total cash received by the Shareholder from any sales preceding the Payment Date ("SALES") of Parent Common Stock received as a result of the Acquisition, plus (ii) the value of Parent Common Stock (or Exchangeable Shares) held by such Shareholder that were received in connection with the Acquisition determined by multiplying such number of shares by the Share Price (as defined below), less (iii) the amount of commissions, fees and taxes paid or payable by such Shareholder as a result of the Acquisition and any Sales. The term "SHARE PRICE" shall mean the closing price per share of the Parent Common...
Indemnification Threshold and Limitations. Except as set forth below, there shall be no liability for any Stockholder under Section 7.2 unless the aggregate amount of Losses incurred by the Indemnified Parties exceeds $1,000,000 (the “Indemnification Threshold”) in the aggregate, in which event the entire aggregate amount of the Losses shall be indemnifiable pursuant to Section 7.2(a). The Indemnified Parties sole and exclusive remedy for any inaccuracy or breach of a representation or warranty of the Company or any failure by the Company to perform or comply with any covenant and agreement in this Agreement or any agreement, instrument or certificate delivered pursuant to or in connection therewith shall be indemnification pursuant to this Article VII. The liability of the Stockholders under and the right of the Indemnified Parties to seek such indemnification shall be limited solely and exclusively to the Escrow Amount (as defined in Section 1.8(b)).
