Limitation and Expiration. Notwithstanding the above: (a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless and until the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement); (b) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable; (c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c): (1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or (2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is sought), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or (ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Consolidation Capital Corp), Agreement and Plan of Reorganization (Consolidation Capital Corp)
Limitation and Expiration. Notwithstanding anything in this Agreement to the abovecontrary:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 8.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $50,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the no Indemnification Threshold shall not apply with respect to recovery of (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 Section 3.4 (capital stock of the Company), 5.5 3.5 (transactions in capital stock), 5.18 3.19 (significant customers; material contracts and commitments), 5.23 3.24 (benefit plans and employment matters), 3.25 (taxes) or 3.26 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iiiii) Damages described in Section 10.1(a)(ivitems 1, 4 and 5 of Schedule 3.26(b), or although the entire amount of such Damages shall be applied to the calculation of the Indemnification Threshold with respect to those Damages not exempt from the Indemnification Threshold by this proviso; and provided further that if the aggregate amount of Damages exceeds the Indemnification Threshold, then the Stockholders shall reimburse the Aether Indemnified Parties for the entirety of all Damages and the Indemnification Threshold shall be disregarded.
(ivb) the aggregate amount of the Stockholders' liability under this Section 8 shall not exceed the Purchase Price; provided, however, that the Stockholders' liability for Damages arising out of any breaches of the covenants of CCC or Newco the Stockholders set forth in this Agreement or the representations and warranties made in Section 6.2 3.4 (CCC Common Stockcapital stock of the Company), 6.5 3.5 (Capitalizationtransactions in capital stock), 3.24 (benefit plans and employment matters) or 3.25 (taxes) or Damages described in Section 6.6 8.1(a)(iii) or (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
(bvi) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% of the Merger Consideration except with regard be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 10, 8 or under in any certificate or writing furnished in connection herewith, herewith shall terminate at on the date that is latest to occur of the later of clause events described in the following clauses (i) or ), (ii) and (iii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, warranties and covenants specified in clause (i)(2) of this Section 10.3(c8.2(c), the first second anniversary of the Closing Date, or
(2) (w) with respect to representations representations, warranties and warranties of the Shareholders covenants contained in Sections 5.22 3.24 (employee benefit plansplans and employment matters), 5.24 3.25 (taxes), 5.27 7.2, 7.3, 7.4 and 7.5 (environmental certain tax matters), ) and the indemnification indemnifications set forth in Sections 10.1(a)(iiSection 8.1(a)(iii) or (with respect to pre-closing covenants onlyvi), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or;
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand demands (but not any other claim or demanda "Claim") pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to , except that the indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment obligation with regard to the Base Merger Consideration pursuant New York state tax claim and the Reuters claim referred to in Schedule 3.26(b) shall only survive for two years following the Closing Date; and
(iii) with respect to representations and warranties contained in Section 3.1;3.4 (capital stock of the Company), there shall be no limitation.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Aether Systems Inc), Stock Purchase Agreement (Aether Systems Inc)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless and until the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), or 5.27 (environmental matters) ), or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
(b) the aggregate amount of any liability for Damages of the ShareholdersStockholders, CCC and Newco under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the ShareholdersStockholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders Stockholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is sought), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders Stockholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Consolidation Capital Corp), Agreement and Plan of Reorganization (Consolidation Capital Corp)
Limitation and Expiration. Notwithstanding the above:: -------------------------
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 Sections 8.1 unless and until the aggregate amount of Damages under such Section exceeds one percent (1%) of the Base Merger Consideration $200,000 (the "Indemnification --------------- Threshold"), at which time and then only the Indemnifying Party (defined amount of su ch Damages in Section 10.4 --------- below) shall be liable for all Damages from the first dollarexcess of $200,000; provided, however, that the Indemnification Threshold shall -------- ------- not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 1.2 and 3.1, which adjustments shall not constitute Damages1.3; (ii) Damages arising out of any breaches of the covenants of the Shareholders Shareholder set forth in this Agreement or representations and warranties made in Sections 5.4 3.4 (capital stock of the Company), 5.5 3.5 (transactions in capital stock; accounting treatment), 5.18 3.9 (company financial conditions), 3.19 (significant customers; material contracts and commitments), 5.23 3.22 (environmental matters), 3.24 (employee benefit plans), 3.25 (taxes), 3.26 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) ; or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv8.1(a)(iv), (v), (vi), (vii), (viii), (ix), (x), (xi) or (ivxii).
(b) the aggregate amount of the Shareholder's or NII's liability under this Article 8 shall not exceed the Consideration; provided, however, that -------- ------- the Shareholder's liability for Damages arising out of any breaches of the covenants representations made in Sections 3.22 (environmental matters), 3.24 (employee benefit plans), 3.25 (taxes) or 8.1(a)(ii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi) or (xii) shall not be subject to such limitation and shall not count toward the limitation described in the first clause of CCC or Newco set forth in this Agreement or Section 8.3(b); and provided that for any breach of the representations and warranties made in Section 6.2 3.9 (CCC Common StockCompany financial covenants), 6.5 NII's damages for such breach either (Capitalization), i) to the extent applicable shall be considered in the calculation of the Consideration Adjustment pursuant to Section 6.6 (litigation), 6.8 (CCC Prospectus)1.3, or 6.9 (Registration Statement);
(bii) if not considered in such calculation, shall be limited to the aggregate actual dollar amount of by which the Company fails to meet the financial covenants set forth above and shall not cause any liability for Damages recalculation or reduction of the Shareholders, CCC and Newco Consideration to be paid under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;Agreement.
(c) the indemnification obligations of the Shareholder under this Article 108, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.3(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c8.3(c), the first anniversary of eighteen (18) months from the Closing Date, ; or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 3.22 (environmental matters), 3.24 (employee benefit plans), 5.24 3.25 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only8.1(a)(iv), 10.1(a)(iii(v), 10.1(a)(iv(vi), (vii), (viii), (ix), (x), (xi) or 10.2(a)(ii) (with respect to pre-closing covenants only) xii), on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c8.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or;
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c8.3(c) (such claims referred to as "Pending Claims"); -------------- or
(d) in no event will any CCC Indemnified Party be entitled to the indemnification hereunder for obligations of NII shall terminate at the breach date that is the later of a representation, warranty or covenant where (i) eighteen (18) months from the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to Closing Date and (ii) the Base Merger Consideration pursuant to resolution of all Pending Claims under Section 3.1;8.2.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Navigant International Inc), Stock Purchase Agreement (Navigant International Inc)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 9.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $100,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration Purchase Price as set forth in Sections 2.2 1.2 and 3.1, which adjustments shall not constitute Damages2.1; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholder set forth in this Agreement or representations and warranties made in Sections 5.4 4.4 (capital stock of the Company), 5.5 4.5 (transactions in capital stock), 5.18 4.9 (Company financial conditions), 4.18 (material contracts and commitments), 5.23 4.23 (conformity with law; litigation), 5.24 4.24 (taxes), 5.27 4.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; ), (iii) Damages described in Section 10.1(a)(iv9.1(a)(iv), or (iv) Damages for liability for anti-dumping duties in excess of reserves therefor on the balance sheet of the Company as of the Closing Date (regardless of whether or not disclosed on any schedule to this Agreement);
(b) the Stockholder's liability under this Article 9 shall not exceed the Purchase Price; provided, however, that the Stockholder's liability for Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Sections 4.24 (taxes) or 4.27 (environmental matters) or Damages described in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), 9.1(a)(ii) and Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
(b9.1(a)(iv) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% of the Merger Consideration except with regard be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 109, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c9.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c9.2(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 4.22 (employee benefit plans), 5.24 4.24 (taxes), 5.27 4.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlySection 9.1(a)(ii), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c9.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c9.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Stock Purchase Agreement (U S a Floral Products Inc)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $5,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholder set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.9 (Company financial conditions), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) ), or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
(b) the aggregate amount of any the Stockholder's liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% the Merger Consideration; provided, however, that the Stockholder's liability for Damages arising out of any breaches of the Merger Consideration except with regard representations made in Sections 5.24 (taxes) or 5.27 (environmental matters) or Damages described in Section 10.1(a)(ii) and Section 10.1(a)(iv) shall not be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c10.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c10.2(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections Section 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c10.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c10.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (U S a Floral Products Inc)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 8.1 unless and until the aggregate amount of Damages exceeds one percent Twenty-Five Thousand Dollars (1%$25,000) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), ) (at which time point the Indemnifying Party (defined in Section 10.4 --------- below) Stockholders or AppNet, as the case may be, shall be become liable for all Damages from the first dollaraggregate Damages, not just amounts in excess of Twenty-Five Thousand Dollars ($25,000); providedPROVIDED, howeverHOWEVER, that the Indemnification Threshold shall not apply to to:
(i) adjustments to the Merger Consideration as set forth in Sections 2.2 1.3 and 3.11.4, which adjustments shall not constitute Damages; or
(ii) Damages arising out of any breaches of the covenants of the Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed EDC's tax equalization policy disclosed on Schedule 8.13 3.11(a)(iv)(Liabilities and are not repaid pursuant to their terms; Obligations, etc.) and the matters disclosed in Schedule 3.23 (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration StatementTaxes);
(b) the aggregate amount of any the Stockholders' or AppNet's liability for Damages of the Shareholders, CCC and Newco under this Article 10 Section 8 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicableConsideration;
(c) without limiting the generality of the foregoing, there shall be no claim for indemnity in respect of Damages to the extent amounts have been collected under any applicable policy or policies of insurance (the Indemnified Party (as defined in Section 8.3(a)) agreeing to take reasonable steps, at the request and the expense of the Indemnifying Party, to assert any covered claims against the insurer, but the Indemnified Party's right to indemnification not being limited during the pendency of any such claim);
(d) the indemnification obligations under this Article 10Section 8, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(d):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c8.2(d), the first second anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 3.21 (employee benefit plansEnvironmental Matters) 3.22 (Employment Matters), 5.24 3.23 (taxes), 5.27 (environmental matters), Taxes) and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlySection 8.1(a)(i)(2), 10.1(a)(iii(4) or (5), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on the later of (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, five (i) four (45) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and dischargedDate; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(d) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Commerce One Inc)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 8.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $50,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 3.4 (capital stock of the Company), 5.5 3.5 (transactions in capital stock), 5.18 3.19 (significant customers; material contracts and commitments), 5.23 3.23 (environmental matters), 3.25 (employee benefit plans), 3.26 (taxes), 3.27 (conformity with law; litigation), 5.24 or (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iiiii) Damages described in Section 10.1(a)(iv), 8.1(a)(iii) or (iv); and further provided that if the aggregate amount of Damages exceeds the Indemnification Threshold, then the Stockholders shall indemnify the Indemnified Parties for the entirety of all Damages and the Indemnification Threshold shall be disregarded.
(b) the aggregate amount of the Stockholders' liability under this Section 8 shall not exceed the Purchase Price; provided, however, that the Stockholders' liability for Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 Sections 3.4 (CCC Common Stockcapital stock of the Company), 6.5 3.5 (Capitalizationtransactions in capital stock), Section 6.6 3.25 (litigationemployee benefit plans), 6.8 3.26 (CCC Prospectustaxes), or 6.9 Damages described in Section 8.1(a)(iii) or (Registration Statement);
(biv) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% of the Merger Consideration except with regard be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 10, Section 8 or under in any certificate or writing furnished in connection herewith, herewith shall terminate at the date that is on the later of clause (i), (ii) or (iiiii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c8.2(b), the first third anniversary of the Closing Date, or
(2) (w) with respect to representations representations, warranties and warranties of the Shareholders covenants contained in Sections 5.22 3.23 (environmental matters), 3.25 (employee benefit plans), 5.24 3.26 (taxes), 5.27 5.1 (environmental tax matters), ) and the indemnification set forth in Sections 10.1(a)(iiSection 8.1(a)(iii) or (with respect to pre-closing covenants onlyiv), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, three (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (23) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c8.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand demands (but not any other claim or demanda "Claim") pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- and
(diii) with respect to representations and warranties contained in Section 3.4 (capital stock of the Company), there shall be no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;limitation.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the aboveforegoing provisions of this Article 11:
(a) with respect to the indemnification obligations of the Members under Section 11.1 --
(i) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages Losses sustained by the Clarant Indemnified Parties exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) Indemnification Threshold shall be liable for all Damages from the first dollar; providedtreated as a deductible: PROVIDED, howeverHOWEVER, that the Indemnification Threshold shall not apply to (iw) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages Losses arising out of any breaches of the covenants of the Shareholders Members set forth in this Agreement to be performed after the Closing Date or the representations and warranties made in Sections 5.4 5.3 (capital stock of the Company), 5.5 5.17 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigationemployee benefits), 5.24 (taxes), 5.27 (environmental mattersx) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages Losses described in Section 10.1(a)(iv11.1(c), (y) Losses arising out of intentional fraud, or (ivz) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 matters identified on SCHEDULE 11.1(f); and
(CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);ii) [Reserved]
(b) the aggregate amount of any liability for Damages indemnification obligations of the Shareholders, CCC and Newco Members under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 10Section 11.1, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c11.11(b):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2i) (wA) with respect to claims arising out of breaches of the representations and warranties of the Shareholders contained made in Sections 5.22 5.17 (employee benefit plansbenefits), 5.19 (environment) and 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;
Appears in 1 contract
Samples: Agreement and Plan of Organization (Luminant Worldwide Corp)
Limitation and Expiration. Notwithstanding anything herein to the abovecontrary:
(a) there shall be no liability for indemnification indemnification
(i) under Section 10.1 or Section 10.2 unless 8.1 unless, and until solely to the extent that, the aggregate amount of Damages suffered by the RIG Indemnified Party or Parties under the applicable provisions exceeds one percent (1%) of the Base Merger Consideration $100,000.00 (the "Indemnification --------------- Threshold"); or
(ii) under Section 8.2 unless, at which time and solely to the Indemnifying extent that, the aggregate amount of Damages suffered by the LeaseTrend Indemnified Party (defined in Section 10.4 --------- below) shall be liable for all Damages from or Parties under the first dollarapplicable provisions exceeds the Indemnification Threshold; provided, however, that the Indemnification Threshold Thresholds shall not apply to to: (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of any LeaseTrend Party or RIG, as the Shareholders case may be, set forth in Article V of this Agreement or representations and warranties made in Sections 5.4 3.4 (capital stock of the Company), 5.5 3.5 (transactions in capital stockstock of the Company), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 3.24 (taxes), 5.27 and 4.4 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out capital stock of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration StatementRIG);
(bi) the aggregate amount of any liability for Damages of the Shareholders, CCC ' and Newco the Company's (if any) liability under this Article 10 VIII shall not exceed 50% $960,000 (the "Shareholders' Cap"), provided, however, that any liability arising from or in connection with any Final Consideration Adjustment or the representations and warranties contained in Section 3.8 (financial condition), Section 3.9 (financial statements) and/or Section 3.24 (taxes) and the covenants and agreements contained in Section 5.1 (tax matters) and/or 5.6 (conduct of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of business pending close) shall not apply towards, nor be limited by, the Shareholders' Cap; and
(ii) the aggregate amount of RIG's liability under this Article VIII shall not exceed $960,000 (the "RIG Cap"), CCC provided, however, that any liability arising from or Newcoin connection with any Final Consideration Adjustment or the representations and warranties contained in Section 4.5 (financial statements) and/or Section 4.11 (taxes) and the covenants and agreements contained in Section 5.1 (tax matters) shall not apply towards, as applicablenor be limited by, the RIG Cap;
(c) the indemnification obligations under this Article 10, VIII or under in any certificate or writing furnished in connection herewith, herewith shall terminate at the date that is on the later of clause (i) or (ii) of this Section 10.3(c):below:
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c8.3(c), the first anniversary of the Closing DateClosing, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 3.21 (environmental matters), 3.23 (employee benefit plans), 5.24 3.17 (intellectual property), 3.24 (taxes) and 4.9 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, five (i) four (45) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and dischargedClosing; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand demands for indemnification (but not any other claim or demand"Claims") pending as of the relevant dates described in clause (i) of this Section 10.3(c8.3(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Acquisition and Reorganization Agreement (Realty Information Group Inc)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $25,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholder set forth in this Agreement or representations and warranties made in Sections 5.4 6.9 (capital stock of the CompanyCompany financial conditions), 5.5 (transactions in capital stock), 5.18 6.17 (material contracts and commitments), 5.23 6.22 (conformity with law; litigation), 5.24 6.24 (taxes), 5.27 ) and 6.27 (environmental matters) ); or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iiiii) Damages described in Section 10.1(a)(iv), ) or (ivv).
(b) the aggregate amount of Stockholder's liability under this Article 10 shall not exceed the Merger Consideration; provided, however, that Stockholder's liability for Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 Sections 6.24 (CCC Common Stock), 6.5 taxes) or 6.27 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), environmental matters) or 6.9 (Registration Statement);
(bDamages described in Sections 10.1(a)(ii) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 10.1(a)(iv) shall not exceed 50% of the Merger Consideration except with regard be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c10.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c10.2(c), the first anniversary of the Closing DateEffective Time, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 6.21 (employee benefit plans), 5.24 6.24 (taxes), 5.27 6.27 (environmental matters), and the indemnification set forth in Sections Section 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv(iii), or 10.2(a)(ii) (with respect to pre-closing covenants only) iv), on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date Effective Time if the Claim (as defined below) is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date Effective Time for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c10.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c10.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) subject to Section 5.2, there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 8.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $75,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration Cash Purchase Price as set forth in Sections 2.2 1.2 and 3.1, which adjustments shall not constitute Damages1.3; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholder or Buyer set forth in this Agreement or representations and warranties made in Sections 5.4 3.4 (capital stock of the Company), 5.5 3.5 (transactions in capital stock; accounting treatment), 5.18 3.23 (material contracts and commitmentsenvironmental matters), 5.23 3.25 (employee benefit plans), 3.26 (taxes), 3.27 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), 8.1(a)(iv) or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statementv);
(b) the aggregate amount of any the Stockholder's or Buyer's liability under this Article 8 shall not exceed the Purchase Price; provided, however, that the Stockholder's liability for Damages arising out of any breaches of the Shareholdersrepresentations made in Sections 3.23 (environmental matters), CCC and Newco under this Article 10 3.25 (employee benefit plans) or 3.26 (taxes) or Damages described in Section 8.1(a)(ii) or (iv) shall not be subject to such limitation and shall not count toward the limitation described in the first clause of this Section 8.2(b) unless such Damages exceed 50% the amount of liability the Stockholder would have had in his capacity as a stockholder, officer or director of the Merger Consideration except with regard to any Damages that occur as a result Company under applicable state law, in which event the limitation described in the first clause of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicableSection 8.2(b) shall apply;
(c) the indemnification obligations under this Article 108, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c8.2(c), the first third anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 3.23 (environmental matters), 3.25 (employee benefit plans), 5.24 3.26 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlySection 8.1(a)(ii), 10.1(a)(iii(iii), 10.1(a)(iv(iv) or (v), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c8.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) such aggregate amount shall not include any Damages resulting from a breach of the Base Merger representations and warranties in Section 5.9) exceeds an amount equal to 2% of the Closing Date Consideration (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.1 (due organization) as to the Company's good standing as a foreign corporation in each jurisdiction in which it does business without giving effect to the limitations of such representation on Schedule 5.1, 5.4 (capital stock of the Company)) without giving effect to the limitations of such representation on Schedule 5.4, 5.5 (transactions in capital stock), 5.7 (predecessor status) without giving effect to the limitations of such representations on Schedule 5.7, 5.9 (Company financial conditions), 5.15(c)(xvi) (real property) without giving effect to the limitations of such representations of Schedule 5.15(c)(xvi), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation) without giving effect to the limitations of such representation on Schedule 5.23(ix), 5.24 (taxes), ) without giving effect to the limitations of such representation on Schedule 5.24 or 5.27 (environmental matters) ), or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv10.1(c) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement10.1(d);
(b) the aggregate amount of any the Stockholders' liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% the Merger Consideration; provided, however, that the Stockholders' liability for Damages arising out of any breaches of the Merger Consideration except with regard representations made in Sections 5.24 (taxes) or 5.27 (environmental matters) or Damages described in Section 10.1(a)(ii) and Section 10.1(a)(iv) shall not be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c10.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c10.2(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections Section 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c10.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c10.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (U S a Floral Products Inc)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) an amount equal to 2% of the Base cash portion of the Merger Consideration (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company)) without giving effect to the limitations of such representation on Schedule 5.4, 5.5 (transactions in capital stock), 5.9 (Company financial conditions), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation)) without giving effect to the limitations of such representation on Schedule 5.23, 5.24 (taxes), ) without giving effect to the limitations of such representation on Schedule 5.24 or 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
(b) the aggregate amount of any the Stockholders' liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% the Merger Consideration; provided, however, that the Stockholders' liability for Damages arising out of any breaches of the Merger Consideration except with regard representations made in Sections 5.24 (taxes) or 5.27 (environmental matters) or Damages described in Section 10.1(a)(ii) and Section 10.1(a)(iv) shall not be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c10.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c10.2(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections Section 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c10.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c10.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (U S a Floral Products Inc)
Limitation and Expiration. Notwithstanding the aboveforegoing provisions of this Article 11:
(a) with respect to the indemnification obligations of the Contributor under Section 11.1 --
(i) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages Losses sustained by the Clarant Indemnified Parties exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at ) which time the Indemnifying Party (defined in Section 10.4 --------- below) Indemnification Threshold shall be liable for all Damages from the first dollartreated as a deductible; providedPROVIDED, howeverHOWEVER, that the Indemnification Threshold shall not apply to (iw) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages Losses arising out of any breaches of the covenants of the Shareholders Contributor set forth in this Agreement Sections 10.2, 10.5, 10.7 and 10.8, or the representations and warranties made in Sections 5.4 5.17 (capital stock of the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), employee benefits) or 5.24 (taxes), 5.27 (environmental mattersx) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages Losses described in Section 10.1(a)(iv11.1(c), or (ivy) Damages Losses arising out of intentional fraud by Contributor or (z) any breaches matters identified on Schedule 11.1(d); and
(ii) the aggregate amount of the covenants of CCC or Newco set forth in Contributor's liability under this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement)Article 11 shall not exceed the Consideration;
(b) the aggregate amount of any liability for Damages indemnification obligations of the Shareholders, CCC and Newco Contributor under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 10Section 11.1, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c11.11(b):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2i) (wA) with respect to claims arising out of breaches of the representations and warranties of the Shareholders contained made in Sections 5.22 5.17 (employee benefit plans), benefits) and 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:: -------------------------
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 8.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $150,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 1.3 and 3.1, which adjustments shall not constitute Damages1.4; (ii) Damages arising out of any breaches of the covenants of the Shareholders Interestholders set forth in this Agreement or representations and warranties made in Sections 5.4 3.4 (capital stock structure of the Company), 5.5 3.5 (transactions in capital stockmembership interests; accounting treatment), 5.18 3.9 (Company financial conditions), 3.19 (significant customers; material contracts and commitments), 5.23 3.23 (environmental matters), 3.25 (employee benefit plans), 3.26 (taxes) or 3.27 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv8.1(a)(iv), (v), (vi), (vii), (viii), (ix), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statementx);
(b) the aggregate amount of any the Interestholders' liability under this Article 8 shall not exceed the Consideration; provided, however, that the Interestholders' liability for Damages arising out of any breaches of the Shareholdersrepresentations made in Sections 3.23 (environmental), CCC 3.25 (employee benefit plans) or 3.26 (taxes) or Damages described in Section 8.1(a)(ii), (iv), (v), (vi), (vii), (viii), (ix), and Newco under this Article 10 (x) shall not exceed 50% be subject to such limitation and shall not count toward the limitation described in the first clause of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablethis Section 8.2(b);
(c) the indemnification obligations under this Article 108, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties claims relating to or arising out of the Shareholders contained in Sections 5.22 (employee benefit plansSection 8.1(a)(iv), 5.24 (taxesv), 5.27 (environmental mattersvi), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlyvii), 10.1(a)(iii(viii), 10.1(a)(iv), or 10.2(a)(ii(ix) and (with respect to pre-closing covenants only) on x): (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(Bi)(1)(B) of this Section 10.3(c8.2(c), ; or
(x2) with respect to covenants all claims other than those referred to in clause (i)(1) of the Shareholders to be performed this Section 8.2(c), twelve (12) months after the Closing Date until fully performed and discharged, Effective Time (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought"First Anniversary"), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Interest Purchase Agreement (Navigant International Inc)
Limitation and Expiration. Notwithstanding the Sections 8.1 and 8.1.2 above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 8.1 unless and until the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $250,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined Members will be obligated to indemnify the Buyer Indemnified Parties with respect to the aggregate amount of all such Damages in Section 10.4 --------- below) shall be liable for all Damages from excess of the first dollarIndemnification Threshold; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Company or the Members set forth in this Agreement or any document delivered in connection herewith, or Damages arising out of representations and warranties made by the Members or the Company in Sections 5.4 3A.2 (capital stock ownership of interest), 3B.4 (membership interests in the Company), 5.5 3B.5 (transactions in capital stockCompany interests), 5.18 3B.6 (material contracts title and commitmentsownership), 5.23 3B.15(d) (conformity with law; litigationleased property), 5.24 3B.24 (employee benefit plans), 3B.26 (litigation),or 3B.30 (taxes), 5.27 or (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iiiii) Damages described in Section 10.1(a)(iv8.1(a)(iii), or (iv) Damages arising out of or (v). Notwithstanding the foregoing, in the 38 44 event that, and at such time as, Members become entitled to receive any breaches of Earn-Out Payment pursuant to Section 1.3 hereof, the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement)Indemnification Threshold shall be increased to $400,000;
(b) the aggregate amount of any the Members' liability for Damages of the Shareholders, CCC and Newco under this Article 10 Section 8 shall not exceed 50% the Purchase Price, and the aggregate amount of any single Member's liability under this Section 8 shall not exceed such Member's pro rata share of the Merger Consideration except with regard to any Damages that occur Purchase Price as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicableset forth on Schedule 3.4 hereof;
(c) the indemnification obligations under this Article 10, Section 8.1 or under in any certificate or writing furnished in connection herewith, herewith shall terminate at the date that is on the later of clause (i) or (ii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c8.2(c), the first second anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 3B.13 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii3B.15(d) (leased property), 3B.23 (labor and employment matters), 3B.24 (employee benefit plans) and 3B.30 (taxes), and with respect to pre-closing covenants onlyDamages described in Section 8.1(a)(v), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, ten (i) four (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and dischargedDate; or
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) claims pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: LLC Interests Purchase Agreement (Aether Systems Inc)
Limitation and Expiration. Notwithstanding the aboveforegoing:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 8.3 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollarDeductible; provided, however, that the Indemnification Threshold Deductible shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Buyer set forth in this Agreement or representations and warranties made in Sections 5.4 4.6 (capital stock of the Company), 5.5 Buyer) or 4.7 (transactions in capital stock), 5.18 or (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iiiii) Damages described in Section 10.1(a)(iv8.3(iii), or (iv) or (v); and further provided that if the aggregate amount of Damages arising out exceeds the Indemnification Deductible, then Buyer shall indemnify the Principal Stockholders for the amount of any breaches of Damages above the covenants of CCC or Newco set forth Indemnification Deductible, but in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement)no event greater than the Indemnification Limit;
(b) the aggregate amount of any Buyer's liability for Damages of the Shareholders, CCC and Newco under this Article 10 8 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicableIndemnification Limit;
(c) the indemnification obligations under this Article 108 shall terminate, or under any certificate or writing furnished as applicable, in connection herewith, shall terminate at the date that is the later of accordance with clause (i), (ii) or (iiiii) of this Section 10.3(c8.4(c):
(1) except as to representations, warranties, and covenants specified matters set forth in clause (i)(2) of this Section 10.3(c8.4(c), the first third anniversary of the Closing Date, or;
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification indemnifications set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlySection 8.3(iii), 10.1(a)(iii(iv) or (v), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six sixty (660) months days after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtwith respect thereto), or (B) if there is no applicable statute of limitation, (ix) four three (43) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; orDate;
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending Pending Claims as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"8.4(c); -------------- and
(iii) with respect to representations and warranties contained in Section 4.6 (capital stock of Buyer), there shall be no limitation.
(d) in no event will any CCC Indemnified Party be entitled with respect to indemnification hereunder for Damages arising from the breach actions or omissions of a representation, warranty the Principal Stockholders on or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment prior to the Base Merger Consideration pursuant Closing Date, the Principal Stockholders shall have no right to Section 3.1;claim indemnification from the Companies after the Closing Date, except to the extent such Damages exceed the Indemnification Limit.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until then solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $160,000 (the "Indemnification --------------- ThresholdExclusion"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold Exclusion shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholder set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the CompanyCompanies), 5.5 (transactions in capital stock), 5.9 (the Companies financial conditions), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), or 5.27 (environmental matters) ); or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
(b) the aggregate amount of any the Stockholder's liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% the Merger Consideration; provided, however, that the Stockholder's liability for Damages arising out of any breaches of the Merger Consideration except with regard representations made in Sections 5.22 (employee benefit plans), 5.24 (taxes) or 5.27 (environmental matters) or Damages described in Section 10.1(a)(ii) and Section 10.1(a)(iv) shall not be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c10.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c10.2(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections Section 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c10.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c10.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (U S a Floral Products Inc)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 8.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $250,000 (the "Indemnification --------------- ThresholdDeductible"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold Deductible shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Seller set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company)3.13, 5.5 (transactions in capital stock)3.19, 5.18 (material contracts and commitments)3.20, 5.23 (conformity with law; litigation)3.21, 5.24 (taxes)3.30, 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described the Excluded Liabilities or any matter listed in Section 10.1(a)(iv)8.1(a)(ix) of the Disclosure Schedule, or (iv) Damages arising out of any breaches of Purchase Price Adjustment made pursuant to Section 1.3 or (v) the covenants of CCC or Newco set forth in this Agreement or representations and warranties made matters identified in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement8.1(a)(viii);
(b) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 10, 8 or under in any certificate or writing furnished in connection herewith, herewith shall terminate at the date that is on the later of clause (i) or (ii) of this Section 10.3(c8.2(b):
(1) except as to representations, warranties, representations and covenants warranties specified in clause (i)(2) of this Section 10.3(c8.2(b), April 1, 2003 (the first anniversary of the Closing Date"Survival Period"), or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), 3.13 and 3.21 and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only)Excluded Liabilities, 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, ten (i) four (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and dischargedDate; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand demands (but not any other claim or demanda "Claim") pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(b) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the aboveforegoing provisions of this Article 11:
(a) with respect to the indemnification obligations of the Members under Section 11.1 --
(i) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages Losses sustained by the Clarant Indemnified Parties exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) Indemnification Threshold shall be liable for all Damages from the first dollartreated as a deductible; providedPROVIDED, howeverHOWEVER, that the Indemnification Threshold shall not apply to (iw) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages Losses arising out of any breaches of the covenants of the Shareholders Members set forth in this Agreement to be performed after the Closing Date or the representations and warranties made in Sections 5.4 5.3 (capital stock of the Company), 5.5 5.17 (transactions in capital stockemployee benefits), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental mattersx) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages Losses described in Section 10.1(a)(iv11.1(c), (y) Losses arising out of intentional fraud, or (ivz) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 matters identified on SCHEDULE 11.1(f); and
(CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);ii) [Reserved]
(b) the aggregate amount of any liability for Damages indemnification obligations of the Shareholders, CCC and Newco Members under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 10Section 11.1, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c11.11(b):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2i) (wA) with respect to claims arising out of breaches of the representations and warranties of the Shareholders contained made in Sections 5.22 5.17 (employee benefit plans), benefits) and 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;
Appears in 1 contract
Samples: Agreement and Plan of Organization (Luminant Worldwide Corp)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 8.1 unless and until the aggregate amount of Damages for all claims exceeds one percent (1%) of the Base Merger Consideration $ 100,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; Section 1.2 (ii) Damages arising out of any breaches of the covenants of the Shareholders Interestholders set forth in this Agreement Section 5.1 of or representations and warranties made in Sections 5.4 3.4 (capital stock structure of the Company), 5.5 or 3.5 (transactions in capital stockmembership interests; accounting treatment)., 5.18 (material contracts and commitments)In addition, 5.23 (conformity the parties agree that with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant respect to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches a single claim, the first $5,000 in Damages shall be excluded from indemnification and that for the purpose of this limitation that a group or series of similar or related claims shall be treated as a single claim for the covenants purpose of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);exclusion
(bi) the aggregate amount of any the Company's and the Interestholders' liability for Damages of the Shareholders, CCC and Newco under this Article 10 8 shall not exceed 50% the unused portion of the Merger Escrow Fund ; (ii) provided that with respect to a claim arising out of a breach by an individual Interestholder of Section 3.2(b), 3.2(d), 3.3(b), 3.3(d), 3.4(c), 3.27 and Article 9, in each instance as it relates to their individual membership interest the individual Interestholders' liability under this Article 8 shall not exceed the Consideration except paid to such Interestholder with regard respect to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablemembership interest. Except for claims under (ii) liability will be joint and several and shall be applied pro rata;
(c) the indemnification obligations under this Article 108, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(c):
(1i) except as to representations, warranties, and covenants specified in clause twelve (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (612) months after the expiration of Effective Time (the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is sought"First Anniversary"), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates date described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Interest Purchase Agreement (Shenandoah Telecommunications Co/Va/)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%i) prior to the determination of the Base Merger Earn-Out Consideration, $50,000; or (ii) upon determination of the Earn-Out Consideration, the sum of $50,000 plus one- percent of the Earn-Out Consideration (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.9 (Company financial conditions), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), ) or 5.27 (environmental matters) ), or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), ) or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement10.1(c);
(b) the aggregate amount of any the Stockholders' liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% the Merger Consideration; provided, however, that the Stockholders' liability for Damages arising out of any breaches of the Merger Consideration except with regard representations made in Sections 5.24 (taxes) or 5.27 (environmental matters) or Damages described in Section 10.1(a)(ii) and Section 10.1(a)(iv) shall not be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c10.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c10.2(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections Section 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c10.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c10.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (U S a Floral Products Inc)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless and until the aggregate amount of Damages exceeds one percent (1%) of for which Watkxxx-Xxxxxxx xx required to indemnify the Base Merger Consideration (SVG Indemnified Parties under this Article 7 shall not exceed the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollarEscrow Amount; provided, however, that the Indemnification Threshold this limitation shall not apply to, and the SVG Indemnified Parties shall not be obligated to apply any claims against the Escrow Amount with respect to, Watkxxx-Xxxxxxx'x xxxbility for (i) adjustments to the Merger Consideration as set forth Damages arising out of any liabilities referenced in Sections 2.2 and 3.17.1(c), which adjustments shall not constitute Damages(d) or (f); (ii) Damages arising out of any breaches of the covenants of the Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 2.8 (CCC Common StockTaxation) or the covenants of Watkxxx-Xxxxxxx xxx forth in Section 5.10 (Tax Matters); (iii) Damages based on fraud or willful breaches by Watkxxx-Xxxxxxx, 6.5 xx any of its Affiliates or agents on behalf of Watkxxx-Xxxxxxx, xx any of its representations or warranties contained in this Agreement (Capitalizationas modified by the Watkxxx-Xxxxxxx Xxxclosure Schedules); or in any certificate delivered by or on behalf of Watkxxx-Xxxxxxx xx the Closing or (iv) any adjustment to the Estimated Consideration under Sections 1.3 or 1.4 (it being understood that any matter with respect to which any such adjustment is made under Sections 1.3 and 1.4 shall not also be considered a breach of any representation or warranty of Watkxxx-Xxxxxxx xxxtained in this Agreement) and, provided, further that Watkxxx-Xxxxxxx'x xxxe liability for asbestos and lead abatement of the Scotts Valley Property occurring after the Closing Date shall be limited to Watkxxx-Xxxxxxx'x xxxemnification obligations in Section 6.6 (litigation7.1(h), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);.
(b) the aggregate amount indemnification obligations of any liability for Damages of the Shareholders, CCC and Newco under Watkxxx-Xxxxxxx xxxer this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith7, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c7.3(b):
(1) except as to representations, warranties, warranties and covenants specified in clause clauses (i)(2) and (i)(3) of this Section 10.3(c7.3(b), the first anniversary of nine (9) months from the Closing Date; provided, however, that SVG, in its reasonable discretion may extend the nine (9) month period set forth in this clause (1) to twelve (12) months (as it may be so modified, the "ESCROW RELEASE DATE") that, notwithstanding any other provision of this Agreement, no claim for indemnification with respect to any of the matters referenced in this clause (1) shall be effective unless SVG gives Watkxxx-Xxxxxxx x xritten Claim Notice on or prior to the Escrow Release Date; or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 Section 2.16 (employee benefit plansEnvironmental Matters) and Section 2.8 (Taxes), 5.24 the covenants of Watkxxx-Xxxxxxx xxx forth in Section 5.10 (taxes), 5.27 (environmental mattersTax Matters), and the indemnification set obligations of Watkxxx-Xxxxxxx xxx forth in Sections 10.1(a)(ii7.1(c) and (with respect to pre-closing covenants onlyd), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal relevant federal, state or state foreign statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or ; or
(B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z3) with respect to the covenants or agreements representations and warranties contained in the second sentence of CCC Section 2.3(a) (Authority) and Newco to be performed after the Closing Date until fully performed and dischargedindemnification obligations of Watkxxx-Xxxxxxx xxx forth in Section 7.1(f), the indemnification of Watkxxx-Xxxxxxx xxxll survive forever; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) pending demands for which Claim Notice has been delivered to the Indemnifying Party as of the relevant dates described in clause (i) of this Section 10.3(c7.3(b) (such claims referred to as "Pending ClaimsPENDING CLAIMS"); -------------- . -45- 51
(c) the indemnification obligations of SVG shall terminate at the date that is the later of (i) the Escrow Release Date, except that the indemnification obligations of SVG to Watkxxx-Xxxxxxx xxx forth in Sections 7.2(c), (d) and (e) and with respect to the covenants of SVG set forth in Section 5.10 (Tax Matters) shall terminate upon the expiration of the relevant federal, state or foreign statute of limitations (including extensions thereof), and (ii) the resolution of all Pending Claims under Section 7.2.
(d) Notwithstanding anything to the contrary in this Agreement, no event will any CCC SVG Indemnified Party shall be entitled to indemnification hereunder for under this Agreement unless and until the breach sum of a representationall otherwise indemnifiable amounts payable to all the SVG Indemnified Parties together exceeds $100,000, warranty or covenant where the identical in which case, subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant other provisions of this Agreement, the amount indemnifiable shall be the amount in excess of $100,000. Notwithstanding anything to the contrary in this Agreement, no Watkxxx-Xxxxxxx Xxxemnified Party shall be entitled to indemnification under this Agreement unless and until the sum of all otherwise indemnifiable amounts payable to all the Watkxxx-Xxxxxxx Xxxemnified Parties together exceeds $100,000, in which case, subject to the other provisions of this Agreement, the amount indemnifiable shall be the amount in excess of $100,000. The foregoing limitation shall not apply to the indemnification obligations with respect to the covenants set forth in Section 3.1;5.10 (Tax Matters) and the indemnification obligations of Watkxxx-Xxxxxxx xxx forth in Section 7.1(f).
(e) Notwithstanding anything to the contrary in this Agreement, Watkxxx-Xxxxxxx xxxll only be responsible for lead and asbestos abatement at the Scotts Valley Property to the extent set forth in Section 7.1(h).
Appears in 1 contract
Samples: Securities Purchase Agreement (Silicon Valley Group Inc)
Limitation and Expiration. Notwithstanding the aboveforegoing:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 8.3 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollarDeductible; provided, however, that the Indemnification Threshold Deductible shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Buyer set forth in this Agreement or representations and warranties made in Sections 5.4 4.6 (capital stock of the Company), 5.5 Buyer) or 4.7 (transactions in capital stock), 5.18 or (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iiiii) Damages described in Section 10.1(a)(iv8.3(iii), or (iv) or (v); and further provided that if the aggregate amount of Damages arising out exceeds the Indemnification Deductible, then Buyer shall indemnify the Members for the amount of any breaches of Damages above the covenants of CCC or Newco set forth Indemnification Deductible, but in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement)no event greater than the Indemnification Limit;
(b) the aggregate amount of any Buyer's liability for Damages of the Shareholders, CCC and Newco under this Article 10 8 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicableIndemnification Limit;
(c) the indemnification obligations under this Article 108 shall terminate, or under any certificate or writing furnished as applicable, in connection herewith, shall terminate at the date that is the later of accordance with clause (i), (ii) or (iiiii) of this Section 10.3(c8.4(c):
(1) except as to representations, warranties, and covenants specified matters set forth in clause (i)(2) of this Section 10.3(c8.4(c), the first third anniversary of the Closing Date, or
; (2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification indemnifications set forth in Sections 10.1(a)(iiSection 8.3.(iv) or (with respect to pre-closing covenants onlyv), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six sixty (660) months days after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtwith respect thereto), or (B) if there is no applicable statute of limitation, (ix) four three (43) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; orDate;
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending Pending Claims as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"8.4(c); -------------- and
(iii) with respect to representations and warranties contained in Section 4.6 (capital stock of Buyer), there shall be no limitation.
(d) in no event will any CCC Indemnified Party be entitled with respect to indemnification hereunder for Damages arising from the breach actions or omissions of a representation, warranty the Members on or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment prior to the Base Merger Consideration pursuant Closing Date, the Members shall have no right to Section 3.1;claim indemnification from the Company after the Closing Date, except to the extent such Damages exceed the Indemnification Limit.
Appears in 1 contract
Samples: LLC Membership Interests Purchase Agreement (Fti Consulting Inc)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless and until 8.1 unless, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $800,000.00 (the "Indemnification --------------- ThresholdDeductible"), at which time ) whereupon only the Indemnifying Party (defined amount of such claims in Section 10.4 --------- below) excess of the Indemnification Deductible shall be liable for all Damages from the first dollarrecovered by any Indemnified Party; provided, however, that the Indemnification Threshold Deductible shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute DamagesPurchase Price pursuant to Section 1.4 or Section 1.5; (ii) Damages arising out of any breaches of the covenants of the Shareholders set forth covenant relating to tax matters contained in this Agreement or representations and warranties made in Sections 5.4 Section 5.3; (capital stock of the Companyiii) Section 3.17 (environmental matters), 5.5 Section 3.20 (transactions in capital stocktaxes), 5.18 (material contracts and commitments), 5.23 or Section 3.21 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out from or related to liabilities of the Seller that are not Assumed Liabilities, including without limitation Damages under Section 8.1(a), above, or (v) any liability of the Buyer under any bulk transfer law of any breaches jurisdiction, under any common law doctrine of the covenants of CCC de facto merger or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus)successor liability, or 6.9 (Registration Statementotherwise by operation of law);
(b) the aggregate amount of any the Seller's liability under this Section 8 shall not exceed $25,000,000.00, provided, however, that the Seller's liability for Damages arising out of any (i) breaches of the Shareholderscovenant relating to tax matters contained in Section 5.3, CCC or (ii) breaches of the representations and Newco under this Article 10 warranties made in Section 3.17 (environmental matters), Section 3.20 (taxes), or Section 3.21 (conformity with law; litigation), shall not exceed 50% of the Merger Consideration except with regard be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 10Section 8, or under in any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2i) (wA) with respect to representations and warranties claims relating to or arising out of breaches of the Shareholders covenant relating to tax matters contained in Sections 5.22 (employee benefit plans)Section 5.3, 5.24 or breaches of the Section 3.20 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including mutually agreed-upon extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, with respect to representations and warranties made in Section 3.17 (ienvironmental matters) four seven (47) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environmentDate, or (iiC) two with respect to representations and warranties made in Section 3.21 (2conformity with law; litigation) five (5) years after the Closing Date for any Date; or
(1) with respect to all claims other Claim covered by than those referred to in clause (i)(2)(Bi)(1) of this Section 10.3(c8.2(c), eighteen (x18) with respect to covenants of the Shareholders to be performed months after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought"Eighteen Month Anniversary"), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:foregoing provisions of this Article 11: 57
(a) with respect to the indemnification obligations of the Stockholders under Section 11.1 --
(i) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages Losses sustained by the Clarant Indemnified Parties exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at ) which time the Indemnifying Party (defined in Section 10.4 --------- below) Indemnification Threshold shall be liable for all Damages from the first dollartreated as a deductible; providedPROVIDED, howeverHOWEVER, that the Indemnification Threshold shall not apply to (iw) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages Losses arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement to be performed after the Closing Date or the representations and warranties made in Sections 5.4 5.3 (capital stock of the Company), 5.5 5.17 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigationemployee benefits), 5.24 (taxes) and subsections (g) and (h) of Section 5.25 (business conduct), 5.27 (environmental mattersx) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages Losses described in Section 10.1(a)(iv11.1(c), or (ivy) Damages Losses arising out of intentional fraud; or (z) any breaches matters identified on SCHEDULE 11.1(f);
(ii) the aggregate amount of the covenants of CCC or Newco set forth in Stockholders' liability under this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);Article 11 shall not exceed the Merger Consideration; and
(b) the aggregate amount of any liability for Damages indemnification obligations of the Shareholders, CCC and Newco Stockholders under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 10Section 11.1, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c11.11(b):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2i) (wA) with respect to claims arising out of breaches of the representations and warranties of the Shareholders contained made in Sections 5.22 5.17 (employee benefit plans), benefits) and 5.24 (taxes)) or Losses described in clause (c) of Section 11.1, 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;
Appears in 1 contract
Samples: Agreement and Plan of Organization (Luminant Worldwide Corp)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless SECTION 9.1 unless, and until solely to the extent that, the aggregate amount of Damages (such aggregate amount shall not include any Damages resulting from a breach of representations and warranties in SECTION 4.9(A)) exceeds one percent TEN THOUSAND DOLLARS (1%$10,000) of the Base Merger Consideration (the "Indemnification --------------- ThresholdINDEMNIFICATION THRESHOLD"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration Purchase Price as set forth in Sections 2.2 SECTIONS 1.2 and 3.1, which adjustments shall not constitute Damages2.1; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 SECTIONS 4.4 (capital stock of the Company), 5.5 4.5 (transactions in capital stock), 5.18 4.9 (Company financial conditions), 4.18 (material contracts and commitments), 5.23 4.23 (conformity with law; litigation), 5.24 4.24 (taxes), 5.27 ) and 4.27 (environmental matters) ); or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(ivSECTIONS 9.1(A)(IV) and 9.1(B).
(b) the aggregate amount of the Stockholders' liability under this Article 9 shall not exceed the Purchase Price; provided, or (iv) however, that the Stockholders' liability for Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 SECTIONS 4.24 (CCC Common Stocktaxes) or 4.27 (environmental matters) or Damages described in SECTIONS 9.1(A)(II), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
(b9.1(A)(IV) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 9.1(B) shall not exceed 50% of the Merger Consideration except with regard be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 10ARTICLE 9, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause terminate:
(i) or (ii) of this Section 10.3(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), on the first anniversary second Anniversary Date of the Closing closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is sought), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or;
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(cSECTION 9.2(C) (such claims referred to as "Pending ClaimsPENDING CLAIMS"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Stock Purchase Agreement (Holiday Rv Superstores Inc)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 8.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $2,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration Cash Purchase Price as set forth in Sections 2.2 1.2 and 3.1, which adjustments shall not constitute Damages1.3; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholder or Tarr set forth in this Agreement Agreemxxx or representations and warranties made in Sections 5.4 3.4 (capital stock of the Company), 5.5 3.5 (transactions in capital stock; accounting treatment), 5.18 3.19 (significant customers; material contracts and commitments), 5.23 3.23 (environmental matters), 3.25 (employee benefit plans), 3.26 (taxes), or 3.27 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement8.1(a)(iv);
(b) the aggregate amount of the Stockholder's and Tarr's liability under this Axxxxxx 8 shall not exceed the Purchase Price (such term to include the Cash Purchase Price, any Earn-out); provided, however, that the Stockholder's and Tarr's liability for Damages xxxxing out of any breaches of the Shareholdersrepresentations made in Sections 3.23 (environmental matters), CCC and Newco under this Article 10 3.25 (employee benefit plans) or 3.26 (taxes) or Damages described in Section 8.1(a)(ii) or (iv) shall not exceed 50% be subject to such limitation and shall not count toward the limitation described in the first clause of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablethis Section 8.2(b);
(c) the indemnification obligations under this Article 108, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c8.2(c), the first third anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 3.23 (environmental matters), 3.25 (employee benefit plans), 5.24 3.26 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlySection 8.1(a)(ii), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c8.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless and until the aggregate amount of Damages exceeds one percent (1%) of for which Xxxxxxx-Xxxxxxx is required to indemnify the Base Merger Consideration (SVG Indemnified Parties under this Article 7 shall not exceed the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollarEscrow Amount; provided, however, that the Indemnification Threshold this limitation shall not apply to, and the SVG Indemnified Parties shall not be obligated to apply any claims against the Escrow Amount with respect to, Xxxxxxx-Xxxxxxx'x liability for (i) adjustments to the Merger Consideration as set forth Damages arising out of any liabilities referenced in Sections 2.2 and 3.17.1(c), which adjustments shall not constitute Damages(d) or (f); (ii) Damages arising out of any breaches of the covenants of the Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 2.8 (CCC Common StockTaxation) or the covenants of Xxxxxxx-Xxxxxxx set forth in Section 5.10 (Tax Matters), 6.5 ; (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus)iii) Damages based on fraud or willful breaches by Xxxxxxx-Xxxxxxx, or 6.9 any of its Affiliates or agents on behalf of Xxxxxxx-Xxxxxxx, of any of its representations or warranties contained in this Agreement (Registration Statementas modified by the Xxxxxxx-Xxxxxxx Disclosure Schedules);; or in any certificate delivered by or on behalf of Xxxxxxx-Xxxxxxx at the Closing or (iv) any adjustment to the Estimated Consideration under Sections 1.3 or 1.4 (it being understood that any matter with respect to which any such adjustment is made under Sections 1.3 and 1.4 shall not also be considered a breach of any representation or warranty of Xxxxxxx-Xxxxxxx contained in this Agreement) and, provided, further that Xxxxxxx-Xxxxxxx'x sole liability for asbestos and lead abatement of the Scotts Valley Property occurring after the Closing Date shall be limited to Xxxxxxx-Xxxxxxx'x indemnification obligations in Section 7.1(h).
(b) the aggregate amount indemnification obligations of any liability for Damages of the Shareholders, CCC and Newco Xxxxxxx-Xxxxxxx under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith7, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c7.3(b):
(1) except as to representations, warranties, warranties and covenants specified in clause clauses (i)(2) and (i)(3) of this Section 10.3(c7.3(b), the first anniversary of nine (9) months from the Closing Date; provided, however, that SVG, in its reasonable discretion may extend the nine (9) month period set forth in this clause (1) to twelve (12) months (as it may be so modified, the "Escrow Release Date") that, notwithstanding any other provision of this Agreement, no claim for indemnification with respect to any of the matters referenced in this clause (1) shall be effective unless SVG gives Xxxxxxx-Xxxxxxx a written Claim Notice on or prior to the Escrow Release Date; or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 Section 2.16 (employee benefit plansEnvironmental Matters) and Section 2.8 (Taxes), 5.24 the covenants of Xxxxxxx-Xxxxxxx set forth in Section 5.10 (taxes), 5.27 (environmental mattersTax Matters), and the indemnification obligations of Xxxxxxx-Xxxxxxx set forth in Sections 10.1(a)(ii7.1(c) and (with respect to pre-closing covenants onlyd), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal relevant federal, state or state foreign statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or ; or
(B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z3) with respect to the covenants or agreements representations and warranties contained in the second sentence of CCC Section 2.3(a) (Authority) and Newco to be performed after the Closing Date until fully performed and dischargedindemnification obligations of Xxxxxxx-Xxxxxxx set forth in Section 7.1(f), the indemnification of Xxxxxxx-Xxxxxxx shall survive forever; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) pending demands for which Claim Notice has been delivered to the Indemnifying Party as of the relevant dates described in clause (i) of this Section 10.3(c7.3(b) (such claims referred to as "Pending Claims"); -------------- .
(c) the indemnification obligations of SVG shall terminate at the date that is the later of (i) the Escrow Release Date, except that the indemnification obligations of SVG to Xxxxxxx-Xxxxxxx set forth in Sections 7.2(c), (d) and (e) and with respect to the covenants of SVG set forth in Section 5.10 (Tax Matters) shall terminate upon the expiration of the relevant federal, state or foreign statute of limitations (including extensions thereof), and (ii) the resolution of all Pending Claims under Section 7.2.
(d) Notwithstanding anything to the contrary in this Agreement, no event will any CCC SVG Indemnified Party shall be entitled to indemnification hereunder for under this Agreement unless and until the breach sum of a representationall otherwise indemnifiable amounts payable to all the SVG Indemnified Parties together exceeds $100,000, warranty or covenant where the identical in which case, subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant other provisions of this Agreement, the amount indemnifiable shall be the amount in excess of $100,000. Notwithstanding anything to the contrary in this Agreement, no Xxxxxxx-Xxxxxxx Indemnified Party shall be entitled to indemnification under this Agreement unless and until the sum of all otherwise indemnifiable amounts payable to all the Xxxxxxx-Xxxxxxx Indemnified Parties together exceeds $100,000, in which case, subject to the other provisions of this Agreement, the amount indemnifiable shall be the amount in excess of $100,000. The foregoing limitation shall not apply to the indemnification obligations with respect to the covenants set forth in Section 3.1;5.10 (Tax Matters) and the indemnification obligations of Xxxxxxx-Xxxxxxx set forth in Section 7.1(f).
(e) Notwithstanding anything to the contrary in this Agreement, Xxxxxxx-Xxxxxxx shall only be responsible for lead and asbestos abatement at the Scotts Valley Property to the extent set forth in Section 7.1(h).
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 8.1 or Section 10.2 8.2 unless and until and solely to the extent that the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $400,000 (the "“Indemnification --------------- Threshold"”), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; and provided, howeverfurther, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute DamagesSection 1.4; (ii) Damages arising out of any breaches of the covenants of the Shareholders Partners set forth in this Agreement including Section 10.5 or representations and warranties made in Sections 5.4 3.4 (capital stock Ownership of the CompanyPartnership), 5.5 3.8 (transactions in capital stockPartnership Financial Conditions), 5.18 3.25 (material contracts and commitmentsEmployee Benefit Plans), 5.23 3.26 (conformity with law; litigationTaxes), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv8.1(a)(iv), (v) and (vi); or (iv) Damages described in Section 8.2(a)(ii) and (iii);
(b) the aggregate amount of the Partners’ liability under this Article 8 shall not exceed the Consideration; provided, however, that the Partners’ liability for Damages arising out of any breaches of the covenants of CCC or Newco the Partners set forth in this Agreement Section 5.1 or Section 10.5 or any breaches of the representations and warranties made in Section 6.2 Sections 3.4 (CCC Common StockOwnership of the Partnership), 6.5 3.8 (CapitalizationPartnership Financial Conditions), Section 6.6 3.25 (litigationEmployee Benefit Plans), 6.8 3.26 (CCC ProspectusTaxes) or Section 8.1(iv), or 6.9 (Registration Statement);
v) and (bvi) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% be subject to such limitation and shall not count toward the limitation described in the first clause of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablethis Section 8.3(b);
(c) the maximum aggregate amount of NII’s, NINC’s and Newco’s liability under this Agreement to the Seller Indemnified Parties shall not exceed the amount of the Consideration;
(d) the indemnification obligations of the Partners, NII, NINC and Newco under this Article 108, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of the applicable dates in clause (i) or (ii) of this Section 10.3(c8.3(d):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c8.3(d), the first second anniversary of the Closing Date, ; or
(2) (w) with respect to the covenants of the Partners contained in Section 5.1 and the representations and warranties of the Shareholders contained in Sections 5.22 3.4 (employee benefit plansOwnership of the Partnership), 5.24 3.25 (taxesEmployee Benefit Plans), 5.27 3.26 (environmental mattersTaxes), 4.4 (The Stock Consideration) and the indemnification set forth in Sections 10.1(a)(ii) 4.5 (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants onlySEC Filings and Financial Statements) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, five (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (25) years after the Closing Date for any other Claim covered by this clause (i)(2)(B) of this Section 10.3(ci)(2), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands for which notice has been given and are pending as of the relevant dates described in clause (i) of this Section 10.3(c8.3(d);
(e) with respect to breaches of the representations and warranties set forth in Section 3.8 (such claims referred to as "Pending Claims"Partnership Financial Conditions); -------------- (d) in no event will any CCC , the Buyer Indemnified Party Parties shall not be entitled to indemnification hereunder recover Damages under Section 8.1 to the extent that a Consideration Adjustment has been made under Section 1.4 for the breach failure of the Partnership to maintain the financial conditions set forth therein; and
(f) the amount of any Damages for which indemnification is provided under this Article 8 shall be net of any actual cash insurance recoveries. Neither party shall have an obligation to seek an insurance recovery, unless, with respect to a representationThird Party Claim, warranty or covenant where the identical subject matter thereof has also resulted inIndemnifying Party provides a statement in its Claim Notice that the Indemnifying Party reasonably believes that insurance exists to cover such Third Party Claim. In such an event, the Indemnified Party shall seek to recover its Damages first against the insurance policy so maintained. If the insurer denies coverage, or causedif coverage is otherwise stated to be excluded or prohibited, a Merger Consideration Adjustment or if the insurer fails to timely notify the Indemnified Party with respect to whether such Third Party Claim is covered, then the Indemnified Party may seek to immediately exercise its rights under this Section 8 directly against the Indemnifying Parties. Thereafter, at the election and expense of the Indemnifying Parties, the Indemnified Party shall assign (if permitted) its insurable rights with respect to such Third Party Claim to the Base Merger Consideration pursuant to Indemnifying Parties who may pursue recovery without any effect on Indemnified Party’s rights under this Section 3.1;8. In no event shall an Indemnified Party’s claim be offset by the costs and expenses incurred in obtaining such recovery under an insurance policy or maintaining insurance coverage.
Appears in 1 contract
Samples: Partnership Interests Purchase Agreement (Navigant International Inc)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless and until the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) ), or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iiiii) Damages described in Section 10.1(a)(iv), or (iviii) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
(b) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2) (wx) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is sought), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (xy) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"); -------------- --------------
(d) in no event will any CCC Indemnified Party be entitled to joint and several indemnification hereunder for the breach by any Shareholder of the provisions of Article 11 or Article 12 hereof; it being understood and agreed that the CCC Indemnified Party shall be entitled to indemnification only from the Shareholder breaching Article 11 or Article 12, as applicable.
(e) the Shareholders shall have no liability under this Article 10 in respect of any Damages the full value of which have been recouped by CCC as a representation, warranty or covenant where result of (i) the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment payment by the Shareholders to the Base Merger Consideration Surviving Corporation or CCC of uncollected Accounts Receivable pursuant to Section 3.1;7.2 or (ii) CCC's not having to pay to the Shareholders any portion of the Contingent Merger Consideration because of any failure to achieve the targets set forth in Section 2.3(a) (i) herein.
(f) After the Effective Time, indemnification pursuant to this Section 10 shall be the sole and exclusive remedy of any Indemnified Party for any breach of any representation, warranty, covenant or other agreement herein or otherwise arising out of or in connection with the transactions contemplated by this Agreement or the operations of the Company, whether such claim may be asserted as a breach of contract, tort, a violation or breach of the 1933 Act or the rules and regulations promulgated thereunder or otherwise, except with regard to Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Company, the Shareholders, CCC or Newco, as applicable.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Consolidation Capital Corp)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 8.1 until and unless and until the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $70,000 (the "Indemnification --------------- Threshold", such that if there are idemnifiable Damages in excess of the Indemnification Threshold, the Members and TLG Members shall have liability only for that portion of Damages which exceeds $70,000), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration Cash Purchase Price as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute DamagesSection 1.3; (ii) Damages arising out of any breaches of the covenants of the Shareholders Members or TLG Members set forth in this Agreement or the representations and warranties made in Sections 5.4 3.4 (capital stock of the Companymatters relating to membership interests), 5.5 3.5 (transactions in capital stockoptions and similar rights with respect to membership interests), 5.18 3.19 (significant customers; material contracts and commitments), 5.23 3.22 (environmental matters), 3.24 (employee benefit plans), 3.25 (taxes), or 3.26 (conformity with law; litigation) (other than the Directline Productions claim identified on Schedule 3.26 to which the Indemnification Threshold shall apply), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), 8.1(a)(iv) or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statementv);
(b) the aggregate amount of any the Members' and TLG Members' liability under this Article 8 shall not exceed the Purchase Price; provided, however, that the Members' and TLG Members' liability for Damages arising out of any breaches of the Shareholdersrepresentations made in Sections 3.22 (environmental matters), CCC and Newco under this Article 10 3.24 (employee benefit plans) or 3.25 (taxes) or Damages described in Section 8.1(a)(ii), (iv) or (v) shall not exceed 50% be subject to such limitation and shall not count toward the limitation described in the first clause of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablethis Section 8.2(b);
(c) the indemnification obligations under this Article 108, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c8.2(c), the first third anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 3.22 (environmental matters), 3.24 (employee benefit plans), 5.24 3.25 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlySection 8.1(a)(ii), 10.1(a)(iii(iii), 10.1(a)(iv(iv) or (v), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c8.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- .
(d) in no event will any CCC Indemnified Party The Company, the Members, and the TLG Members shall not be entitled to indemnification hereunder liable for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment Damages arising due to the Base Merger Consideration failure to obtain the consent of Citicorp Credit Services, Inc. ("Citicorp") that would otherwise be required as a result of the transactions contemplated by this Agreement pursuant to Section 3.1;8.2(e) and (f) of the Vendor Services Agreement dated July 1, 1998 between Citicorp and the Company.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 8.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $110,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Vendor, 408446 or the Company set forth in this Agreement or representations and warranties made in Sections 5.4 4.1(e) (capital stock of the CompanyAuthorized Capital), 5.5 4.1(f) (transactions in capital stockEntitlements), 5.18 4.1(u) (material contracts Significant Customers; Material Contracts and commitmentsCommitments), 5.23 4.1(aa) (conformity with law; litigationEmployee Benefit Plans), 5.24 4.1(bb) (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(ivTaxes), or 4.1(cc) (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration StatementConformity with Law; Litigation);
(b) the aggregate amount of any the Vendor's liability under this Article 8 shall not exceed the Purchase Price, provided however, that the Vendor's liability for Damages arising out of any breaches of the Shareholdersrepresentations made in Sections 4.1(y), CCC and Newco under this Article 10 4.1(aa) or 4.1(bb) or Damages described in Section 8.1 (a)(ii) or (iv) shall not exceed 50% be subject to such limitation and shall not count toward the limitation described in the first clause of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablethis Section 8.2(b);
(c) the indemnification obligations under this Article 108, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(c):
(1A) except as to representations, warranties, and covenants specified in clause (i)(2i)(B) of this Section 10.3(c8.2(c), the first third anniversary of the Closing Funding Date, or;
(2) (wB) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans4.1(y), 5.24 (taxes4.1(aa), 5.27 (environmental matters), 4.1(bb) and the indemnification set forth in Sections 10.1(a)(iiSection 8.1(a)(ii)(iii) or (with respect to pre-closing covenants onlyiv), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable limitation period contained in the applicable federal or state provincial statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitationfederal or provincial statute, (ix) four five (45) years after the Closing Funding Date if the Claim (as defined below) is related to the cost of investigating, containing, removing, removing or remediating a release of Hazardous Material Substances (as defined above) into the environment, or (iiy) two five (25) years after the Closing Funding Date for any other Claim covered by clause (i)(2)(Bi)(B) of this Section 10.3(c8.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the The final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- .
(d) For greater certainty the Vendor shall, in accordance with the provisions of this Article 8, indemnify the Purchaser and the Company in respect of those matters set out in that schedule delivered at the Funding Time by the Purchaser to the Vendor which letter is attached hereto as Schedule 8.2(d). The Vendor acknowledges that Schedule 8.2(d) shall in no event will way constitute any CCC Indemnified Party be entitled to indemnification hereunder for amendment, waiver, modification or abridgement of any of the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;Purchasers rights under this Article 8.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the aboveforegoing provisions of this Article 11:
(a) with respect to the indemnification obligations of the Stockholders under Section 11.1 --
(i) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages Losses sustained by the Clarant Indemnified Parties exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at ; which time the Indemnifying Party (defined in Section 10.4 --------- below) Indemnification Threshold shall be liable for all Damages from the first dollartreated as a deductible; providedPROVIDED, howeverHOWEVER, that the Indemnification Threshold shall not apply to (iw) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages Losses arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement to be performed after the Closing Date or the representations and warranties made in Sections 5.4 5.3 (capital stock of the Company), 5.5 5.17 (transactions in capital stockemployee benefits), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental mattersx) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages Losses described in Section 10.1(a)(iv11.1(c), or (ivy) Damages Losses arising out of intentional fraud; or (z) any breaches matters identified on SCHEDULE 11.1(f); and
(ii) the aggregate amount of the covenants of CCC or Newco set forth in Stockholders' liability under this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);Article 11 shall not exceed the Merger Consideration; and
(b) the aggregate amount of any liability for Damages indemnification obligations of the Shareholders, CCC and Newco Stockholders under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 10Section 11.1, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c11.11(b):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2i) (wA) with respect to claims arising out of breaches of the representations and warranties of the Shareholders contained made in Sections 5.22 5.17 (employee benefit plansbenefits), 5.19 (environment) and 5.24 (taxes)) or Losses described in clause (c) of Section 11.1, 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;
Appears in 1 contract
Samples: Agreement and Plan of Organization (Luminant Worldwide Corp)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 9.1(a) and until (b), unless, and solely to the extent that, the aggregate amount of Damages (such aggregate amount shall not include any Damages resulting from a breach of representations and warranties in Section 4.9(a)) exceeds one percent TEN THOUSAND DOLLARS (1%$10,000) of the Base Merger Consideration (the "Indemnification --------------- Threshold"); PROVIDED, at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, howeverHOWEVER, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration Purchase Price as set forth in Sections 2.2 1.2 and 3.1, which adjustments shall not constitute Damages2.1; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 4.4 (capital stock of the Company), 5.5 4.5 (transactions in capital stock), 5.18 4.9 (Company financial conditions), 4.18 (material contracts and commitments), 5.23 4.23 (conformity with law; litigation), 5.24 4.24 (taxes), 5.27 ) and 4.27 (environmental matters) ); or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(ivSections 9.1(a)(iv) and 9.1(b).
(b) the aggregate amount of the Stockholders' liability under this Article 9 shall not exceed the Purchase Price; provided, or (iv) however, that the Stockholders' liability for Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 Sections 4.24 (CCC Common Stocktaxes) or 4.27 (environmental matters) or Damages described in Sections 9.1(a)(ii), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
(b9.1(a)(iv) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 9.1(b) shall not exceed 50% of the Merger Consideration except with regard be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 109, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause terminate:
(i) or (ii) of this Section 10.3(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), on the first anniversary second Anniversary Date of the Closing closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is sought), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or;
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c9.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Stock Purchase Agreement (Holiday Rv Superstores Inc)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 8.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent $10,000 (1%it being expressly understood that if the Damages exceed $10,000, no amounts shall be owed under this Article 8 for the first $10,000 of Damages) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration Cash Purchase Price as set forth in Sections 2.2 1.2 and 3.1, which adjustments shall not constitute Damages1.3; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 3.4 (capital stock of the Company), 5.5 3.5 (transactions in capital stock; accounting treatment), 5.18 3.19 (significant customers; material contracts and commitments), 5.23 3.23 (environmental matters), 3.25 (employee benefit plans), 3.26 (taxes), 3.27 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), 8.1(a)(iv),(v) or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statementvi);
(b) the aggregate amount of any the Stockholders' liability under this Article 8 shall not exceed the sum of the Purchase Price and the Earn-outs; provided, however, that the Stockholders' liability for Damages arising out of any breaches of the Shareholdersrepresentations made in Sections 3.23 (environmental matters), CCC and Newco under this Article 10 3.25 (employee benefit plans) or 3.26 (taxes) or Damages described in Section 8.1(a)(ii), (iv)(v) or (vi) shall not exceed 50% be subject to such limitation and shall not count toward the limitation described in the first clause of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablethis Section 8.2(b);
(c) the indemnification obligations under this Article 108, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c8.2(c), the first third anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 3.23 (environmental matters), 3.25 (employee benefit plans), 5.24 3.26 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlySection 8.1(a)(ii), 10.1(a)(iii(iii), 10.1(a)(iv), (iv),(v) or 10.2(a)(ii) (with respect to pre-closing covenants onlyvi) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c8.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the aboveforegoing provisions of this Article 11:
(a) with respect to the indemnification obligations of the Stockholders under Section 11.1 --
(i) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages Losses sustained by the Clarant Indemnified Parties exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at ) which time the Indemnifying Party (defined in Section 10.4 --------- below) Indemnification Threshold shall be liable for all Damages from the first dollartreated as a deductible; providedPROVIDED, howeverHOWEVER, that the Indemnification Threshold shall not apply to (iw) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages Losses arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement to be performed after the Closing Date or the representations and warranties made in Sections 5.4 5.3 (capital stock of the Company), 5.5 5.17 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigationemployee benefits), 5.24 (taxes), 5.27 (environmental mattersx) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages Losses described in Section 10.1(a)(iv11.1(c), or (ivy) Damages Losses arising out of intentional fraud; or (z) any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statementmatters identified on SCHEDULE 11.1(f);
(ii) [Reserved]
(b) the aggregate amount of any liability for Damages indemnification obligations of the Shareholders, CCC and Newco Stockholders under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 10Section 11.1, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c11.11(b):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2i) (wA) with respect to claims arising out of breaches of the representations and warranties of the Shareholders contained made in Sections 5.22 5.17 (employee benefit plansbenefits), 5.19 (environment) and 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 9.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%i) prior to the determination of the Base Merger Earn-Out Consideration, U.S. $140,000; or (ii) upon determination of the Earn-Out Consideration, the sum of $140,000 plus one-percent of the Earn-Out Consideration (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Initial Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 4.4 (capital stock of the Company), 5.5 4.5 (transactions in capital stock), 5.18 4.9 (Company financial conditions), 4.18 (material contracts and commitments), 5.23 4.23 (conformity with law; litigation), 5.24 4.25 (taxes), 5.27 or 4.28 (environmental matters) ), or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement9.1(a)(iv);
(b) the aggregate amount of any the Shareholders' liability under this Article 9 shall not exceed the Purchase Price; provided, however, that the Shareholders' liability for Damages arising out of any breaches of the Shareholders, CCC representations made in Sections 4.25 (taxes) or 4.28 (environmental matters) or Damages described in Section 9.1(a)(ii) and Newco under this Article 10 Section 9.1(a)(iv) shall not exceed 50% of the Merger Consideration except with regard be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 109, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c9.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c9.2(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 4.22 (employee benefit plans), 5.24 (taxes), 5.27 4.28 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlySection 9.1(a)(ii), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if 44 there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c9.2(c); with respect to representations and warranties contained in Section 4.28 (environmental matters), the indemnification obligations under this Article 9 shall not terminate; or
(x3) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed representations and discharged, (y) with respect to covenants of CCC and Newco warranties contained in Section 7.15 4.25 (taxes), the date that is 90 days after the relevant authorities shall no longer be entitled to assess liability for tax against the Company for any particular taxation year ended on or prior to the representationsClosing Date, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant having regard without limitation, to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to any waivers given by the party from whom indemnification is sought), and (z) with Company in respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; orany taxation year;
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c9.2(c) (such claims referred to as "Pending Claims"); -------------- ;
(diii) Notwithstanding the limitations set forth in no event will Section 9.2, any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment Claim which is based on title to the Base Merger Consideration pursuant to Section 3.1;Company Shares, intentional misrepresentation or fraud may be brought at any time.
Appears in 1 contract
Samples: Share Purchase Agreement (U S a Floral Products Inc)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless and until the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) The Indemnitor shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages Losses arising out of any breaches of the covenants of the Shareholders covenants, agreements, representations and warranties set forth in this Agreement Agreement, unless any such covenant, agreement, representation or representations and warranties made warranty shall have been specifically waived in Sections 5.4 (capital stock of writing by the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);Indemnitee.
(b) Xxxxxx’x and Sellers shall not have any liability to indemnify under this Article VI, for Losses arising out of (i) any breach of any representation or warranty (other than breaches of representations or warranties contained in Sections 3.1.1, 3.1.2, 3.1.3, 3.1.7 3.1.14, 3.1.16 and 3.1.19), by either Xxxxxx’x or any Seller and (ii) any Excluded Liability referenced in Section 1.1.2(b)(ii)(C) unless the amount of such Losses on an aggregate basis exceed $1,500,000 (“Threshold Amount”) provided however that if such Threshold Amount is exceeded, Xxxxxx’x and Sellers shall be liable for all Purchaser Losses that exceed the Threshold Amount. The aggregate amount of any liability the Losses for Damages of which Sellers or Xxxxxx’x, on the Shareholdersone hand, CCC and Newco or Purchaser on the other, may be responsible under this Article 10 VI shall not exceed 50% an amount equal to the Purchase Price, except for Losses arising out of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholdersintentional fraud, CCC or Newco, as applicable;which may be unlimited.
(c) the The indemnification obligations under this Article 10, VI or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i), (ii) or (iiiii) of this Section 10.3(c):6.6(c), as applicable:
(1i) except as to representationsfor the representations and warranties set forth in Sections 3.1.1, warranties3.1.2, 3.1.3, 3.1.14, 3.1.16, 3.1.19 and covenants specified 3.1.20 all representations and warranties of Sellers or Xxxxxx’x set forth in clause this Agreement shall terminate fifteen (i)(215) of this Section 10.3(c), the first anniversary of months after the Closing Date, or.
(2ii) (wA) with respect to representations claims relating to or arising out of Sections 3.1.14 and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans)3.1.19, 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation limitations (including extensions thereof agreed to by the party from whom indemnification is sought), any extension thereof) or (B) if there is no applicable statute of limitationlimitations, ten (i) four (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and dischargedDate; or
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless and until 8.1 unless, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $1,000,000.00 (the "Indemnification --------------- ThresholdDeductible"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) whereupon Sellers shall only be liable under this Article 8 for all the total amount of Damages from in excess of the first dollarIndemnification Deductible; provided, however, that the Indemnification Threshold Deductible shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damagespayments permitted under Section 1.5 of this Agreement; (ii) Damages arising out of any breaches supplements to the Disclosure Letter which in the aggregate indicate a Material Adverse Effect relating to the value, assets, and/or business of the covenants of Acquired Companies and for which the Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of Sellers have agreed to indemnify the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their termsBuyers; (iii) Damages described compliance issues regarding the covenants listed in Section 10.1(a)(iv), or 6.10 of this Agreement; (iv) Damages arising out of any breaches claims under Section 8.1(d); and (v) the lesser of the covenants policy deductible or $25,000 for insurance claims as described under Section 8.1(e) of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement)Agreement;
(b) the aggregate amount of any the Sellers' liability for Damages of the Shareholders, CCC and Newco under this this\ Article 10 8 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable$100,000,000.00;
(c) the indemnification obligations under this Article 108, or under in any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2) (wA) with respect to representations and claims relating to or arising out of breaches of the covenant relating to tax matters contained in Section 6.10 of this Agreement or breaches of the warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), 2.12 and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) 2.15 of this Agreement the date that is six (6) months after the expiration of the longest applicable federal federal, state or state provincial statute of limitation (including mutually agreed-upon extensions thereof agreed to by thereof), or in cases in which no statute of limitations applies, five (5) years from the party from whom indemnification is sought)Closing Date, or (B) if there is no applicable statute of limitation, with respect to representations and warranties made in Section 2.20 seven (i) four (47) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environmentDate, or (iiC) two with respect to all claims other than those referred to in clause (2i)of this Section 8.2(c), twenty-four months (24) years months after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(cthe "Twenty-Four Month Anniversary"), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) for which Buyer has made a written indemnification claim against Sellers pursuant to the provisions of Section 8.4 hereof (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $750,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 2.1 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Sellers set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Companyownership interests), 5.5 (transactions in capital stockpartnership interests), 5.9 (Partnerships' financial conditions), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation)) after taking into account reserves therefor on the balance sheets of the Partnerships as of the Closing Date, 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; ), (iii) Damages described in Section 10.1(a)(iv), (v) or (vi) or (iv) Damages arising out for liability for anti-dumping duties in excess of any breaches reserves therefor on the balance sheets of the covenants Partnerships as of CCC the Closing Date (regardless of whether or Newco set forth in not disclosed on any schedule to this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration StatementAgreement);
(b) the aggregate amount of any the Sellers' liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% the Consideration; provided, however, that: (i) the Sellers' liability for Damages arising out of any breaches of the Merger representations and warranties made in Sections 5.24 (taxes), without giving effect to the qualifications thereof contained in any Schedule to such Section 5.24 or any subsection thereof, or 5.27 (environmental matters) or Damages described in Section 10.1(a)(ii), Section 10.1(a)(iv) , Section 10.1(a)(v) and/or Section 10.1(a)(vi) shall not be subject to such limitation; (ii) the aggregate liability under this Article 10 of each of Xxxxxxxx Xxxxxxx, Xxxxx Xxxxxxxx and Xxxxxx Xxxxxxxxx shall (A) not exceed the Consideration except with regard received by such person under this Agreement, (B) be several only and not joint, and (C) be in proportion to any Damages their relative interest in the Consideration; (iii) the liability of L. Xxxxx Xxxxx under this Article 10 shall (a) be in proportion to his relative percentage interest in the Consideration, (B) not exceed the Consideration received by him under this Agreement, and (C) be several only and not joint; and (iv) the liability of each Trust shall (A) be in proportion to its respective percentage interest in its share of the Consideration, provided that occur each Trust shall be liable for its pro rata share (defined as its --- ---- percentage interest in the Consideration over the aggregate percentage of the total Consideration received by the Trusts as a result group) of fraudulent misrepresentations or fraudulent acts of any liability that would otherwise have been attributable to L. Xxxxx Xxxxx but for the Shareholderslimitation contained in Section 10.2(b)(iii)(B) and only after such limitation shall in fact have been reached, CCC or Newco, as applicable;and (B) be several only and not joint.
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c10.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c10.2(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections Section 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four (4) ten years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two (2) five years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c10.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c10.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 8.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $110,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Vendor, 517244 or the Company set forth in this Agreement or representations and warranties made in Sections 5.4 4.1(e) (capital stock of the CompanyAuthorized Capital), 5.5 4.1(f) (transactions in capital stockEntitlements), 5.18 4.1(u) (material contracts Significant Customers; Material Contracts and commitmentsCommitments), 5.23 4.1(aa) (conformity with law; litigationEmployee Benefit Plans), 5.24 4.1(bb) (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(ivTaxes), or 4.1(cc) (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration StatementConformity with Law; Litigation);
(b) the aggregate amount of any the Vendor's liability under this Article 8 shall not exceed the Purchase Price, provided however, that the Vendor's liability for Damages arising out of any breaches of the Shareholdersrepresentations made in Sections 4.1(y), CCC and Newco under this Article 10 4.1(aa) or 4.1(bb) or Damages described in Section 8.1 (a)(ii) or (iv) shall not exceed 50% be subject to such limitation and shall not count toward the limitation described in the first clause of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablethis Section 8.2(b);
(c) the indemnification obligations under this Article 108, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(c):
(1A) except as to representations, warranties, and covenants specified in clause (i)(2i)(B) of this Section 10.3(c8.2(c), the first third anniversary of the Closing Funding Date, or;
(2) (wB) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans4.1(y), 5.24 (taxes4.1(aa), 5.27 (environmental matters), 4.1(bb) and the indemnification set forth in Sections 10.1(a)(iiSection 8.1(a)(ii)(iii) or (with respect to pre-closing covenants onlyiv), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable limitation period contained in the applicable federal or state provincial statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitationfederal or provincial statute, (ix) four five (45) years after the Closing Funding Date if the Claim (as defined below) is related to the cost of investigating, containing, removing, removing or remediating a release of Hazardous Material Substances (as defined above) into the environment, or (iiy) two five (25) years after the Closing Funding Date for any other Claim covered by clause (i)(2)(Bi)(B) of this Section 10.3(c8.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the The final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- .
(d) For greater certainty the Vendor shall, in accordance with the provisions of this Article 8, indemnify the Purchaser and the Company in respect of those matters set out in that schedule delivered at the Funding Time by the Purchaser to the Vendor which letter is attached hereto as Schedule 8.2(d). The Vendor acknowledges that Schedule 8.2(d) shall in no event will way constitute any CCC Indemnified Party be entitled to indemnification hereunder for amendment, waiver, modification or abridgement of any of the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;Purchasers rights under this Article 8.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless and until the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) ), or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
(b) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is sought), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Consolidation Capital Corp)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 8.1(a) unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $75,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration Cash Purchase Price as set forth in Sections 2.2 1.2 and 3.1, which adjustments shall not constitute Damages1.3; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 3.4 (capital stock of the Company), 5.5 3.5 (transactions in capital stock), 5.18 3.19 (significant customers; material contracts and commitments), 5.23 3.23 (environmental matters), 3.25 (employee benefit plans), 3.26 (taxes), 3.27 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement8.1(a)(iv);
(b) the aggregate amount of any the Stockholders' liability under this Article 8 shall not exceed the Purchase Price; provided, however, that the Stockholders' liability for Damages arising out of any breaches of the Shareholdersrepresentations made in Sections 3.23 (environmental matters), CCC and Newco under this Article 10 3.25 (employee benefit plans) or 3.26 (taxes) or Damages described in Section 8.1(a)(ii) or (iv) (except for Section 3.27 (conformity with law; litigation) in said Section 8.1(a)(iv)) shall not exceed 50% be subject to such limitation and shall not count toward the limitation described in the first clause of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablethis Section 8.2(b);
(c) the indemnification obligations under this Article 108, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) or (3) of this Section 10.3(c8.2(c), the first third anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 3.23 (environmental matters), 3.25 (employee benefit plans), 5.24 3.26 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlySection 8.1(a)(ii), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation six (including extensions thereof agreed to by the party from whom indemnification is sought), or (B) if there is no applicable statute of limitation, (i) four (46) years after the Closing Date if Date; or
(3) with respect to indemnification obligations of the Claim Buyer and the Surviving Corporation under Sections 8.1(b)(ii) and (iii), on the date that is related to six (6) months after the cost expiration of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or six (ii) two (26) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; orDate.
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:: 42
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent not paid by the Stockholders exceeds: (1%i) until determination of the Base Merger Earn-Out Consideration, $75,000; and (ii) upon determination of the Earn-Out Consideration, $75,000 plus one and one-half percent of the Earn-Out Consideration (the "Indemnification --------------- Threshold"); provided, at which time however, that to the Indemnifying Party extent the Stockholders pay Damages in excess of the threshold determined in clause (defined in Section 10.4 --------- belowi) that would not have been paid under clause (ii), the Stockholders shall be liable reimbursed for all Damages from the first dollarsuch excess amount; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.9 (Company financial conditions), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) ), or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
(b) the aggregate amount of any the Stockholders' liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% of the Merger Consideration except with regard (net of any adjustments pursuant to Section 2.2 and 3.1); provided, however, that the Stockholders' liability for Damages arising out of any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts breaches of the Shareholders, CCC representations made in Sections 5.24 (taxes) or Newco, as applicable5.27 (environmental matters) or Damages described in Section 10.1(a)(ii) (except to the extent any covenant may relate to the accuracy of Stockholders' representations and warranties hereunder) and Section 10.1(a)(iv) shall not be subject to such limitation;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c10.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c10.2(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections Section 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c10.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c10.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (U S a Floral Products Inc)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 9.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $25,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 4.9 (capital stock of the CompanyCompany financial conditions), 5.5 (transactions in capital stock), 5.18 4.17 (material contracts and commitments), 5.23 4.22 (conformity with law; litigation), 5.24 4.24 (taxes), 5.27 ) and 4.27 (environmental matters) ); or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iiiii) Damages described in Section 10.1(a)(iv), 9.1(a)(iv) or (ivv).
(b) the aggregate amount of Stockholders' liability under this Article 9 shall not exceed the Purchase Price; provided, however, that Stockholders' liability for Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 Sections 4.24 (CCC Common Stock), 6.5 taxes) or 4.27 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), environmental matters) or 6.9 (Registration Statement);
(bDamages described in Sections 9.1(a)(ii) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 9.1(a)(iv) shall not exceed 50% of the Merger Consideration except with regard be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 109, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c9.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c9.2(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 4.21 (employee benefit plans), 5.24 4.24 (taxes), 5.27 4.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlySection 9.1(a)(ii), 10.1(a)(iii(iii), 10.1(a)(iv(iv), or 10.2(a)(ii) (with respect to pre-closing covenants onlyv) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim (as defined below) is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c9.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c9.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Stock Purchase Agreement (Genesisintermedia Com Inc)
Limitation and Expiration. Notwithstanding the above:
(a1) there shall be no liability for indemnification under Section 10.1 or Section 10.2 5.6(a) unless and until until, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at $10,000 upon which time the Indemnifying Party (defined in Section 10.4 --------- below) Seller shall be liable for all Damages from including the first dollar$10,000 (the “Indemnification Threshold”); provided, however, that the Indemnification Threshold shall not apply to and Seller shall be liable for (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (iiA) Damages arising out of any breaches of the covenants of the Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco Seller set forth in this Agreement or representations and warranties made in Section 6.2 3.16 (CCC Common Stock), 6.5 (Capitalizationemployee benefit plans), Section 6.6 3.19 (litigationtaxes) or (B) Damages described in Section 5.6(a)(i)(D) or Section 5.6(a)(i)(E), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);.
(b) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c2) the indemnification obligations under this Article 10Section 5.6, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (iA) or (iiB) of this Section 10.3(c5.6(b)(2):
(A) (1) except as to representations, warranties, and covenants specified contained in clause Section 3.16 (i)(2) of this Section 10.3(cemployee benefit plans), Section 3.19 (taxes) and the first indemnification set forth in Section 5.6(a)(i)(D) or Section 5.6(a)(i)(E), and except with respect to claims made against Purchaser by third parties for which Purchaser seeks indemnification from Seller, the third anniversary of the Closing Date, or
; or (2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 Section 3.16 (employee benefit plans), 5.24 Section 3.19 (taxes), 5.27 (environmental matters), ) and the indemnification set forth in Sections 10.1(a)(iiSection 5.6(a)(i)(D) (with respect to pre-closing covenants onlyor Section 5.6(a)(i)(E), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (Aa) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (Bb) if there is no applicable statute of limitation, (ix) four six (46) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and dischargedDate; or
(iiB) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) Claims pending as of the relevant dates described in clause (iA) of this Section 10.3(c5.6(b)(2) (such claims Claims referred to as "“Pending Claims"”); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $260,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholder set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.9 (Company financial conditions), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) ), or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
(b) the aggregate amount of any the Stockholder's liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% the Merger Consideration; provided, however, that the Stockholder's liability for Damages arising out of any breaches of the Merger Consideration except with regard representations made in Sections 5.24 (taxes) or 5.27 (environmental matters) or Damages described in Section 10.1(a)(ii) and Section 10.1(a)(iv) shall not be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c10.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c10.2(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections Section 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c10.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c10.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 9.1 unless, and until solely to the extent that, the aggregate amount of Damages (such aggregate amount shall not include any Damages resulting from a breach of representations and warranties in Section 4.9(a)) exceeds one percent (1%) of the Base Merger Consideration $25,000 (the "“Indemnification --------------- Threshold"”), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration Purchase Price as set forth in Sections 2.2 1.2 and 3.1, which adjustments shall not constitute Damages2.1; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 4.4 (capital stock of the Company), 5.5 4.5 (transactions in capital stock), 5.18 4.17 (material contracts and commitments), 5.23 4.22 (conformity with lawLaw; litigation), 5.24 4.23 (taxes), 5.27 ) and 4.26 (environmental matters) ); or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(ivSections 9.1(a)(iv).
(b) the aggregate amount of the Stockholders’ liability under this Article 9 shall not exceed the Purchase Price; provided, or (iv) however, that the Stockholders’ liability for Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 Sections 4.23 (CCC Common Stock), 6.5 taxes) or 4.26 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), environmental matters) or 6.9 (Registration Statement);
(bDamages described in Sections 9.1(a)(ii) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 9.1(a)(iv) shall not exceed 50% of the Merger Consideration except with regard be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 109, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c9.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c9.2(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 4.21 (employee benefit plans), 5.24 4.23 (taxes), 5.27 4.26 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlySection 9.1(a)(ii), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c9.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c9.2(c) (such claims referred to as "“Pending Claims"”); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Stock Purchase Agreement (VRDT Corp)
Limitation and Expiration. Notwithstanding the above:
(a) 9.2.1 there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $250,000 (the "“Indemnification --------------- Threshold"”), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Company or the Company Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the CompanyCompany and Subsidiaries), 5.5 (transactions in capital stockundisclosed liabilities and Company financial condition), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (material contracts), (litigation), (compliance with law) and (environmental matters) ); or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv).
9.2.2 the aggregate amount of the Company Shareholders’ liability under this Section shall not exceed the value of the Parent Common Stock issued to the Company Shareholders pursuant to this Agreement; provided, or (iv) however, that the Company Shareholders’ liability for Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 Sections (CCC Common Stock), 6.5 taxes) or (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), environmental matters) or 6.9 (Registration Statement)Damages described in Sections and shall not be subject to such limitation;
(b) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) 9.2.3 the indemnification obligations under this Article 10Section , or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) Section or (ii) of this Section 10.3(c)::
(1) 9.2.3.1.1 except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2) (w) 9.2.3.1.2 with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plansmatters), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv)Section , or 10.2(a)(ii) (with respect to pre-closing covenants only) , on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material hazardous material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(BB) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, 9.2.3.2 the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "“Pending Claims"”); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Acquisition Agreement (VRDT Corp)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 8.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $65,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration Cash Purchase Price as set forth in Sections 2.2 1.2 and 3.1, which adjustments shall not constitute Damages1.3; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 3.4 (capital stock of the Company), 5.5 3.5 (transactions in capital stock; accounting treatment), 5.18 3.19 (significant customers; material contracts and commitments), 5.23 3.23 (environmental matters), 3.25 (employee benefit plans), 3.26 (taxes), 3.27 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement8.1(a)(iv);
(b) the aggregate amount of any the Stockholders' liability under this Article 8 shall not exceed the Purchase Price; provided, however, that the Stockholders' liability for Damages arising out of any breaches of the Shareholdersrepresentations made in Sections 3.23 (environmental matters), CCC and Newco under this Article 10 3.25 (employee benefit plans) or 3.26 (taxes) or Damages described in Section 8.1(a)(ii) or (iv) shall not exceed 50% be subject to such limitation and shall not count toward the limitation described in the first clause of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablethis Section 8.2(b);
(c) the indemnification obligations under this Article 108, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c8.2(c), the first third anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 3.23 (environmental matters), 3.25 (employee benefit plans), 5.24 3.26 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlySection 8.1(a)(ii), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c8.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 8.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $200,000 (the "Indemnification --------------- ThresholdDeductible"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold Deductible shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 3.4 (capital stock of the CompanyCompanies), 5.5 3.5 (transactions in capital stock), 5.18 3.25 (material contracts and commitmentsemployee benefit plans), 5.23 3.26 (taxes) or 3.27 (conformity with law; litigation), 5.24 or (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iiiii) Damages described in Section 10.1(a)(iv8.1 (iii), or (iv) or (vi); and further provided that if the aggregate amount of Damages arising out exceeds the Indemnification Deductible, then the Principal Stockholders shall indemnify the FTI Indemnified Parties for the amount of any breaches of Damages above the covenants of CCC or Newco set forth Indemnification Deductible, but in this Agreement or representations and warranties made in Section 6.2 no event greater than $12,000,000 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statementthe "Indemnification Limit");
(b) the aggregate amount of any the Principal Stockholders' liability for Damages of the Shareholders, CCC and Newco under this Article 10 8 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicableIndemnification Limit;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, 8 shall terminate at the date that is the later of as applicable, in accordance with clause (i), (ii) or (iiiii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c8.2(c), the first third anniversary of the Closing Date, or;
(2) (w) with respect to representations representations, warranties and warranties of the Shareholders covenants contained in Sections 5.22 3.25 (employee benefit plans), 5.24 3.26 (taxes), 5.27 (environmental matters), ) and the indemnification indemnifications set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlySection 8.1(iii), 10.1(a)(iii(iv) or (v), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six sixty (660) months days after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is sought)thereof) with respect thereto, or (B) if there is no applicable statute of limitation, (ix) four three (43) years after the Closing Date if the Claim is related Date;
(3) with respect to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or representations and warranties contained in Section 3.23 (iienvironmental matters) two ten (210) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; orDate.
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand demands (but not any other claim or demanda "Claim") pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- and
(diii) with respect to representations and warranties contained in Section 3.4 (capital stock of the Companies), there shall be no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;limitation.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) (i) there shall be no liability for indemnification under Section 10.1 or Section 10.2 12.1 unless and until the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $75,000 (the "Indemnification --------------- ThresholdFranchise Deductible"); provided, at which time however, if Damages exceed the Franchise Deductible, the Indemnifying Party (defined in Section 10.4 --------- below) Persons shall be liable for all such Damages from the first dollar; and (ii) provided, however, further that the Indemnification Threshold Franchise Deductible shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 3.12 (capital stock of Taxes) and 3.25 (Commissions) (the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement"Deductible Exclusions");
(b) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco ' liability under this Article 10 XII except for matters referred to as Deductible Exclusions and for matters of fraud as described in Section 12.6 shall not exceed 50% of an amount equal to one-half the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablereceived by such Shareholder;
(c) the indemnification obligations under this Article 10XII, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c12.2(c):
(1) except with respect to claims relating to or arising out of (i) any Taxes arising out of or relating to the business of Xxxxxxx or (ii) the irrevocable assignment of all commissions, fees or other amounts due to Xxxxxxx for business for which a Shareholder has written as an employee or agent of Xxxxxxx that relates to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of business that has been written prior to the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on : (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, ten (i) four (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two Date; or
(2) years after the Closing Date for any with respect to claims other Claim covered by than those specified in clause (i)(2)(Bi)(1) of this Section 10.3(c)12.2(c) that are of a nature and of sufficient materiality typically expected to be encountered in the audit process, on the completion of the first independent audit of financial statements containing combined operations of HCCH and Xxxxxxx; or
(x3) with respect to covenants all claims other than those referred to in clause (i)(1) or (2) of the Shareholders to be performed this Section 12.2(c), twelve (12) months after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and dischargedEffective Time; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c12.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
: (a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless and until the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) ), or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iiiii) Damages described in Section 10.1(a)(iv), or (iviii) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
; (b) the aggregate amount of any liability for Damages of the Shareholders, on the one hand, or CCC and Newco Newco, on the other hand, under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
; (c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c):): (i)
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
or (2) (wx) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six three (63) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is sought), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (xy) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
or (ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;36
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Consolidation Capital Corp)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 9.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $25,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Parent set forth in this Agreement or representations and warranties made in Sections 5.4 4.4 (capital stock of the Company), 5.5 4.5 (transactions in capital stock), 5.18 4.9 (Company financial conditions), 4.17 (material contracts and commitments), 5.23 4.22 (conformity with law; litigation), 5.24 4.24 (taxes), 5.27 ) and 4.27 (environmental matters) ); or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iiiii) Damages described in Section 10.1(a)(iv), 9.1(a)(iv) or (ivv).
(b) the aggregate amount of Parent's liability under this Article 9 shall not exceed the Purchase Price; provided, however, that Parent's liability for Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 Sections 4.24 (CCC Common Stock), 6.5 taxes) or 4.27 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), environmental matters) or 6.9 (Registration Statement);
(bDamages described in Sections 9.1(a)(ii) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 9.1(a)(iv) shall not exceed 50% of the Merger Consideration except with regard be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 109, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c9.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c9.2(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 4.21 (employee benefit plans), 5.24 4.24 (taxes), 5.27 4.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlySection 9.1(a)(ii), 10.1(a)(iii(iii), 10.1(a)(iv(iv), or 10.2(a)(ii) (with respect to pre-closing covenants onlyv) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim (as defined below) is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c9.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c9.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Genesisintermedia Com Inc)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $200,000 (the 41 "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.9 (Company financial conditions), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), ) or 5.27 (environmental matters) ), or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
(b) the aggregate amount of any the Stockholders' liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% the Merger Consideration; provided, however, that the Stockholders' liability for Damages arising out of any breaches of the Merger Consideration except with regard representations made in Sections 5.24 (taxes) or 5.27 (environmental matters) or Damages described in Section 10.1(a)(ii) and Section 10.1(a)(iv) shall not be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c10.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c10.2(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections Section 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c10.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c10.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (U S a Floral Products Inc)
Limitation and Expiration. Notwithstanding the above:Section 8.1,
(a) there There shall be no liability for indemnification under Section 10.1 or Section 10.2 8.1(a) unless and until the aggregate amount of Damages exceeds one percent (1%Losses specified in Section 8.1(a) of the Base Merger Consideration this Agreement exceed TWENTY-FIVE THOUSAND DOLLARS (U.S.$25,000) (the "Indemnification --------------- ThresholdUGM INDEMNIFICATION THRESHOLD"), at after which time the Indemnifying Party (defined in liability for indemnification under Section 10.4 --------- below8.1(a) shall be liable for the full amount of all Damages from Losses (without regard to the first dollarUGM Indemnification Threshold); providedPROVIDED, howeverHOWEVER, that the UGM Indemnification Threshold shall not apply to (i) adjustments to the Merger Aggregate Consideration as set forth in Sections 2.2 Section 1.6 and 3.1, which adjustments Section 1.7. There shall not constitute Damages; (iibe no liability for indemnification under Section 8.1(b) Damages arising out unless and until the aggregate amount of any breaches Losses specified in Section 8.1(b) of the covenants of the Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 exceed TWENTY-FIVE THOUSAND DOLLARS (capital stock of U.S.$25,000) (the Company"ADAC INDEMNIFICATION THRESHOLD"), 5.5 after which the liability for indemnification under Section 8.1(b) shall be for the full amount of all Losses (transactions in capital stockwithout regard to the ADAC Indemnification Threshold), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);.
(b) the aggregate amount of any liability for Damages of the ShareholdersSubject to Section 8.2(c), CCC and Newco under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 108, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(b):
(1A) except as to representations, warranties, agreements and covenants specified in clause (i)(2i)(B) of this Section 10.3(c8.2(b), the first second anniversary of the Closing Date, or
(2) (wB) with respect to representations and warranties of the Shareholders contained in Sections 5.22 Section 2.3 (employee benefit plansCapitalization), 5.24 Section 2.8 (taxesIntellectual Property), 5.27 Section 2.12 (environmental mattersTax Matters), Section 2.13 (Employee and Labor Matters; Benefit Plans) and Section 2.15 (Environmental Matters) and the comparable sections under the UGM Laboratory Agreement, and indemnification set forth in Sections 10.1(a)(iipursuant to clauses (ii), (iii), (iv), (v) and (vi) of Section 8.1(a) (with respect only as such incidental Losses under clause (vi) relate to pre-closing covenants onlythe representations and warranties specified in this clause (B)), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six the later of (61) months after the expiration of the longest applicable federal or state statute of limitation date ADAC no longer has an obligation to pay Contingent Merger Amounts (including extensions thereof agreed with respect to by the party from whom indemnification is sought), or (BNet Unit Revenues relating to installment sales) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related pursuant to Section 1.8 nor Contingent Payment Amounts pursuant to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two Gerd Employment Agreement and (2) years after the second anniversary of the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and dischargedDate; or
(ii) with respect to a particular claim or demand, the date of the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(b) (such claims referred to as "Pending ClaimsPENDING CLAIMS"); -------------- .
(dc) The aggregate amount of Sellers' liability under this Article 8 shall not exceed the sum of (w) FOUR MILLION DOLLARS (U.S.$4,000,000) (the "BASE INDEMNITY AMOUNT") PLUS (x) at any given time and from time to time, twenty-five percent (25%) of the aggregate accrued and unpaid Contingent Merger Amount PLUS (y) at any given time and from time to time, twenty-five percent (25%) of the aggregate accrued and unpaid Contingent Payment Amounts payable under the Gerd Employment Agreement (as defined in no event will Section 9.10) PLUS (z) the aggregate amount of any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty reduction or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment adjustment to the Base Merger Aggregate Consideration pursuant to Section 3.1;1.6(b) or 1.7 (the sum of clauses (w), (x), (y) and (z) being the "UGM INDEMNITY MAXIMUM"); PROVIDED that after the first anniversary of the Closing Date to and including the second anniversary of the Closing Date, the Base Indemnity Amount shall be decreased to TWO MILLION TWO HUNDRED THOUSAND DOLLARS (U.S.$2,200,000) for purposes of determining the UGM Indemnity Maximum; PROVIDED, FURTHER, that after the second anniversary of the Closing Date and thereafter, the Base Indemnity Amount shall be decreased to ZERO DOLLARS (U.S.$0.00) for purposes of determining the UGM Indemnity Maximum and the UGM Indemnity Maximum shall be determined solely with respect to clauses (x), (y) and (z) of the first sentence of this Section 8.2(c). Notwithstanding the above, the Sellers' liability for indemnification (i) pursuant to clause (ii) of Section 8.1(a) with respect solely to covenants and agreements contained in Sections 1.5(c), 4.5, 4.8, 9.1 (only with respect to Xxxx Xxxxxxxxxxx, Ph.D.), 9.8 (only with respect to Xxxx Xxxxxxxxxxx, Ph.D.) and 9.9 (only with respect to Xxxx Xxxxxxxxxxx) and the comparable sections under the UGM Laboratory Agreement (as similarly restricted, if applicable), and the covenants and agreements in the Gerd Employment Agreement relating to non-competition, confidentiality, nondisclosure and proprietary rights and (ii) under this Article 8 for fines, penalties, taxes, and other Losses relating to, arising under or caused by the 401(k) plan and/or SARSEP of each of the Company and UGM Laboratory (to the extent such amount exceeds the amounts accrued for such liability on the balance sheet of the Company and UGM Laboratory (provided that such accrued amounts shall not exceed an aggregate of U.S.$150,000)) shall not be subject to such limitation and shall not count toward the UGM Indemnity Maximum. Notwithstanding the foregoing, the UGM Indemnity Maximum shall not be decreased pursuant to the first sentence of this Section 8.2(c) with respect to claims that are pending at the time the UGM Indemnity Maximum would otherwise have been decreased. The parties acknowledge and agree that (i) the UGM Indemnity Maximum may vary from time to time, (ii) the fact that the UGM Indemnity Maximum at any time is equal to zero or is less than the Losses of ADAC and/or its affiliates does not in itself terminate or invalidate a claim for Losses since the UGM Indemnity Maximum may subsequently increase (E.G., as a result of the subsequent accrual of Contingent Merger Amounts or Contingent Payment Amounts) and any such claims for Losses shall continue until the indemnification obligations with respect thereto terminate pursuant to Section 8.2(b) and (iii) the indemnification obligations under this Article 8 for any and all claims for Losses shall only terminate in accordance with Section 8.2(b).
(d) The aggregate amount of ADAC's liability under this Article 8 shall not exceed FOUR MILLION DOLLARS (U.S.$4,000,000) (the "ADAC INDEMNITY MAXIMUM"); PROVIDED that after the first anniversary of the Closing Date to and including the second anniversary of the Closing Date, the ADAC Indemnity Maximum shall be decreased to TWO MILLION TWO HUNDRED THOUSAND DOLLARS (U.S.$2,200,000); PROVIDED, FURTHER, that after the second anniversary of the Closing Date and thereafter, the ADAC Indemnity Maximum shall be decreased to ZERO DOLLARS (U.S.$0.00). Notwithstanding the foregoing, the ADAC Indemnity Maximum shall not be decreased pursuant to the first sentence of this Section 8.2(d) with respect to claims that are pending at the time the ADAC Indemnity Maximum would otherwise have been decreased.
Appears in 1 contract
Samples: Merger Agreement (Adac Laboratories)
Limitation and Expiration. Notwithstanding the aboveforegoing provisions of this Article 11:
(a) with respect to the indemnification obligations of the Stockholders under Section 11.1--
(i) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages Losses sustained by the Clarant Indemnified Parties exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at ) which time the Indemnifying Party (defined in Section 10.4 --------- below) Indemnification Threshold shall be liable for all Damages from the first dollartreated as a deductible; providedPROVIDED, howeverHOWEVER, that the Indemnification Threshold shall not apply to (iw) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages Losses arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement to be performed after the Closing Date or the representations and warranties made in Sections 5.4 5.3 (capital stock of the Company), 5.5 5.17 (transactions in capital stockemployee benefits), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental mattersx) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages Losses described in Section 10.1(a)(iv11.1(c), or (ivy) Damages Losses arising out of intentional fraud; or (z) any breaches matters identified on SCHEDULE 11.1(F); and
(ii) the aggregate amount of each Stockholders' liability under this Article 11 shall not exceed such Stockholders' pro rata share of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);Merger Consideration; and
(b) the aggregate amount of any liability for Damages indemnification obligations of the Shareholders, CCC and Newco Stockholders under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 10Section 11.1, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c11.11(b):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2i) (wA) with respect to claims arising out of breaches of the representations and warranties of the Shareholders contained made in Sections 5.22 5.17 (employee benefit plansbenefits), 5.19 (environment) and 5.24 (taxes), 5.27 or Losses described in clause (environmental matters)c) of Section 11.1, and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;
Appears in 1 contract
Samples: Agreement and Plan of Organization (Luminant Worldwide Corp)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $145,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.9 (Company financial conditions), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), or 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms); (iii) Damages described in Section 10.1(a)(iv), ; or (ivv) Damages arising out for liability for anti-dumping duties in excess of any breaches reserves therefor on the balance sheets of the covenants Company as of CCC the Closing Date (regardless of whether or Newco set forth in not disclosed on any schedule to this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration StatementAgreement);
(b) the aggregate amount of any the Stockholders' liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% the Merger Consideration; provided, however, that the Stockholders' liability for Damages arising out of any breaches of the Merger Consideration except with regard representations made in Sections 5.24 (taxes) or 5.27 (environmental matters) or Damages described in Section 10.1(a)(ii) and Section 10.1(a)(iv) shall not be subject to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablesuch limitation;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c10.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c10.2(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections Section 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c10.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c10.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (U S a Floral Products Inc)
Limitation and Expiration. Notwithstanding the above:
(a1) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 8.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $50,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration Cash Purchase Price as set forth in Sections 2.2 1.2 and 3.1, which adjustments shall not constitute Damages1.3; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholder set forth in this Agreement or representations and warranties made in Sections 5.4 3.4 (capital stock of the Company), 5.5 3.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 3.26 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(ivSections 8.1(a)(v), (vi) or (vii); and (iv) existing litigation and other matters disclosed on Schedule 3.27.
(2) the aggregate amount of the Stockholder's liability under this Article 8 shall not exceed the Purchase Price; provided, however, that the Stockholder's liability for Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 3.26 (CCC Common Stocktaxes) or Damages described in Sections 8.1(a)(v), 6.5 (Capitalization), vi) and (vii) and existing litigation and other matters disclosed on Schedule 3.27 shall not be subject to such limitation and shall not count toward the limitation described in the first clause of this Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement8.2(b);
(b) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c3) the indemnification obligations of Stockholder under this Article 108, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c8.2(c), the first anniversary of thirty-six (36) months after the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 3.23 (environmental matters), 3.25 (employee benefit plans), 5.24 3.26 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only8.1(a)(ii), 10.1(a)(iii(v), 10.1(a)(iv(vi), or 10.2(a)(ii(vii) (with respect to pre-closing covenants only) and existing litigation and other matters disclosed on Schedule 3.27 on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c8.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii2) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands asserted and pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- .
(d4) in no event will Notwithstanding any CCC Indemnified Party other provision of this Agreement, it is not intended that there be entitled to more than one recovery of indemnification hereunder for the breach same claim from Stockholder by reason of a representationthe fact that the Company, warranty or covenant where as well as the identical subject matter thereof Stockholder, has also resulted inmade representations, or caused, a Merger Consideration Adjustment warranties and covenants to the Base Merger Consideration pursuant to Section 3.1;Buyer under this Agreement.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 9.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of exceeds, in the Base Merger Consideration aggregate with respect to all claims for Damages, $10,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
(b) the aggregate amount of any liability for Damages one Stockholder's or Cook'x xxxbility under this Section 9 shall not exceed, with respect to Cook, $080,000, and with respect to each of the Shareholdersother Stockholders, CCC and Newco under this Article 10 $300,000; provided, however, that there shall not exceed 50% be no limitation of liability with respect to Damages arising out of or in connection with a breach of the Merger Consideration except representations and warranties contained in Sections A.1.4, A.1.5 or A.1.22 of Appendix A or in connection with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicableindemnification obligations set forth in Section 5.8 hereof;
(c) the indemnification obligations under this Article 10Section 9 shall terminate, with respect to all indemnification obligations other than those arising under Sections A.1.4, A.1.5 or under any certificate A.1.22 of Appendix A and the covenants set forth in Section 10 hereof or writing furnished in connection herewithSection 5.8 hereof, shall terminate at the date that is (i), on the later of clause (ix) or (ii) of this Section 10.3(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to prethirty-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (636) months after the expiration of Effective Time (the longest applicable federal "Third Anniversary") or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is sought), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim any and all claims or demand demands (but not any other claim or demand"Claims") under this Agreement pending as of the relevant Third Anniversary. The term "Indemnification Deadline Date" refers to the dates described specified in clause clauses (ix) of this Section 10.3(c) (such claims referred to as above, and the term "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment " refers to the Base Merger Consideration pursuant Claims referred to in (y) above. From and after the applicable Indemnification Deadline Date, the indemnification obligations under this Section 3.1;9 shall survive only to the extent of Pending Claims.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Chematch Com Inc)
Limitation and Expiration. Notwithstanding anything herein to the abovecontrary:
(a) there shall be no liability for indemnification indemnification
(i) under Section 10.1 or Section 10.2 unless 8.1 unless, and until solely to the extent that, the aggregate amount of Damages suffered by the Parent Indemnified Parties under the applicable provisions exceeds one percent $150,000.00 (1%) of the Base Merger Consideration (the an "Indemnification --------------- Threshold"); or
(ii) under Section 8.2 unless, at which time and solely to the Indemnifying Party extent that, the aggregate amount of Damages suffered by the Xxxxxxx Indemnified Parties under the applicable provisions exceeds $150,000.00 (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollaran "Indemnification Threshold"); provided, however, that the neither Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of any Xxxxxxx Party or any RIG Party, as the Shareholders case may be, set forth in Article V of this Agreement Agreement, or representations and warranties made in Sections 5.4 3.4 (capital stock of the Company), 5.5 3.5 (transactions in capital stockstock of the Company), 5.18 3.24 (material contracts and commitmentsbut solely matters relating to the payment of past due sales taxes to the State of Texas by the Company), 5.23 and 4.4 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out capital stock of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration StatementParent);
(bi) the aggregate amount of any the Stockholders' and the Company's (if any) liability for Damages of the Shareholders, CCC and Newco under this Article 10 VIII shall not exceed 50% ten percent (10%) of the Merger Consideration except with regard to (the "Stockholders' Cap"), provided, however, that any Damages that occur as a result of fraudulent misrepresentations liability arising from or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at with any Final Consideration Adjustment or the date that is representations and warranties contained in Section 3.24 (taxes) and the later of clause (i) or (ii) of this Section 10.3(c):
(1) except as to representations, warranties, covenants and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2) (w) agreements contained herein with respect to representations and warranties of Taxes shall not apply towards, nor be limited by, the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is sought), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and dischargedStockholders' Cap; orand
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending as aggregate amount of the relevant dates described in clause RIG Parties' liability under this Article VIII shall not exceed ten percent (i10%) of this Section 10.3(c) the Consideration (such claims referred to as the "Pending ClaimsRIG Cap"); -------------- (d) , provided, however, that any liability arising from or in no event will any CCC Indemnified Party be entitled to indemnification hereunder for connection with the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted representations and warranties contained in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;
Appears in 1 contract
Samples: Agreement and Plan of Contribution (Realty Information Group Inc)
Limitation and Expiration. Notwithstanding the aboveforegoing provisions of this Article 11:
(a) with respect to the indemnification obligations of the Stockholders under Section 11.1 --
(i) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages Losses sustained by the Clarant Indemnified Parties exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at ) which time the Indemnifying Party (defined in Section 10.4 --------- below) Indemnification Threshold shall be liable for all Damages from the first dollartreated as a deductible; providedPROVIDED, howeverHOWEVER, that the Indemnification Threshold shall not apply to (iw) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages Losses arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement to be performed after the Closing Date or the representations and warranties made in Sections 5.4 5.3 (capital stock of the Company), 5.5 5.17 (transactions in capital stockemployee benefits), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental mattersx) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages Losses described in Section 10.1(a)(iv11.1(c), (y) Losses arising out of intentional fraud, or (ivz) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 matters identified on SCHEDULE 11.1(f); and
(CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);ii) [Reserved]; and
(b) the aggregate amount of any liability for Damages indemnification obligations of the Shareholders, CCC and Newco Stockholders under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 10Section 11.1, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c11.11(b):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2i) (wA) with respect to claims arising out of breaches of the representations and warranties of the Shareholders contained made in Sections 5.22 5.17 (employee benefit plansbenefits), 5.19 (environment) and 5.24 (taxes), 5.27 or Losses described in clause (environmental matters)c) of Section 11.1, and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;
Appears in 1 contract
Samples: Agreement and Plan of Organization (Luminant Worldwide Corp)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $125,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Beneficial Owners or the Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.8 (Absence of Claims Against the Partnership and the Partners), 5.9 (Company financial conditions), 5.18 (material contracts and commitments), 5.21 (Labor and Employment Matters) 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) ), or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out for liability for anti-dumping duties in excess of any breaches reserves therefor on the balance sheets of the covenants Partnership as of CCC the Closing Date (regardless of whether or Newco set forth in not disclosed on any schedule to this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration StatementAgreement);
(b) the aggregate amount of any liability for Damages of the ShareholdersStockholders of Talent, CCC and Newco Inc. under this Article 10 shall not exceed 50% the aggregate amount of Merger Consideration received by the Stockholders of Talent, Inc., and the aggregate amount of liability of the Stockholders of Anvacu, Inc. and the Beneficial Owners under this Article 10 shall not exceed the aggregate amount of Merger Consideration except with regard to received by the Stockholders of Anvacu, Inc.; provided, however, that the Partners', Stockholders' and Beneficial Owners' liability for Damages arising out of any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts breaches of the Shareholders, CCC representations made in Sections 5.24 (taxes) or Newco, as applicable5.27 (environmental matters) or Damages described in Section 10.1(a)(ii) and Section 10.1(a)(iv) shall not be subject to such limitation;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c10.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c10.2(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections Section 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c10.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c10.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (U S a Floral Products Inc)
Limitation and Expiration. Notwithstanding the above:
(a) i. there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless unless, and until solely to the extent that the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $120,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; ------------------------- provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholder set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.9 (Company financial conditions), 5.15(c)(xviii) (real property), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) ), or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
(b) ii. the aggregate amount of any the Stockholder's liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicableConsideration;
(c) iii. the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c10.2(c):
(1a) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c10.2(c), the first second anniversary of the Closing Date, or
(2) (wb) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections Section 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four five (45) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c10.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii2) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c10.2(c) (such claims referred to as "Pending Claims"); -------------- (d) . --------------
iv. the Stockholder shall have no liability under this Article 10 in no event will respect of any Damages the full value of which have been recouped by CCC Indemnified Party be entitled to indemnification hereunder for in the breach form of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, as a Merger Consideration Adjustment result of any reduction to the Base Merger Consideration consideration pursuant to Section 3.1;the provisions of Sections 2.2(b)-(d).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Consolidation Capital Corp)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless and until 8.1 unless, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $1,000,000.00 (the "Indemnification --------------- ThresholdDeductible"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) whereupon Sellers shall only be liable under this Article 8 for all the total amount of Damages from in excess of the first dollarIndemnification Deductible; provided, however, that the Indemnification Threshold Deductible shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damagespayments permitted under Section 1.5 of this Agreement; (ii) Damages arising out of any breaches supplements to the Disclosure Letter which in the aggregate indicate a Material Adverse Effect relating to the value, assets, and/or business of the covenants of Acquired Companies and for which the Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of Sellers have agreed to indemnify the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their termsBuyers; (iii) Damages described compliance issues regarding the covenants listed in Section 10.1(a)(iv), or 6.10 of this Agreement; (iv) Damages arising out of any breaches claims under Section 8.1(d); and (v) the lesser of the covenants policy deductible or $25,000 for insurance claims as described under Section 8.1(e) of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement)Agreement;
(b) the aggregate amount of any the Sellers' liability for Damages of the Shareholders, CCC and Newco under this Article 10 8 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable$100,000,000.00;
(c) the indemnification obligations under this Article 108, or under in any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2i) (wA) with respect to representations and claims relating to or arising out of breaches of the covenant relating to tax matters contained in Section 6.10 of this Agreement or breaches of the warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), 2.12 and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) 2.15 of this Agreement the date that is six (6) months after the expiration of the longest applicable federal federal, state or state provincial statute of limitation (including mutually agreed-upon extensions thereof agreed to by thereof), or in cases in which no statute of limitations applies, five (5) years from the party from whom indemnification is sought)Closing Date, or (B) if there is no applicable statute of limitation, with respect to representations and warranties made in Section 2.20 seven (i) four (47) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environmentDate, or (iiC) two with respect to all claims other than those referred to in clause (2i)of this Section 8.2(c), twenty-four months (24) years months after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(cthe “Twenty-Four Month Anniversary”), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) for which Buyer has made a written indemnification claim against Sellers pursuant to the provisions of Section 8.4 hereof (such claims referred to as "“Pending Claims"”); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 8.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $75,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration Cash Purchase Price as set forth in Sections 2.2 1.2 and 3.1, which adjustments shall not constitute Damages1.3; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 3.3(b) (certain matters regarding the HSR Act), 3.4 (capital stock of the Company), 5.5 3.5 (transactions in capital stock; accounting treatment), 5.18 the last sentence of 3.10(financial statements), 3.19 (significant customers; material contracts and commitments), 5.23 3.23 (environmental matters), 3.24(g) (independent contractors), 3.25 (employee benefit plans), 3.26 (taxes), 3.27 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement8.1(a)(iv);
(b) the aggregate amount of any the Stockholders' liability under this Article 8 shall not exceed the Purchase Price; provided, however, that the Stockholders' liability for Damages arising out of any breaches of the Shareholdersrepresentations made in Sections 3.3(b) (certain matters regarding the HSR Act), CCC and Newco under this Article 10 3.23 (environmental matters), 3.25 (employee benefit plans) or 3.26 (taxes) or Damages described in Section 8.1(a)(ii) or (iv) shall not exceed 50% be subject to such limitation and shall not count toward the limitation described in the first clause of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablethis Section 8.2(b);
(c) the indemnification obligations under this Article 108, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c8.2(c), the first third anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 3.23 (environmental matters), 3.25 (employee benefit plans), 5.24 3.26 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlySection 8.1(a)(ii), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c8.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
Appears in 1 contract
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless and until the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), or 5.27 (environmental matters) ), or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigationLitigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
(b) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is sought), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Consolidation Capital Corp)
Limitation and Expiration. Notwithstanding the above:: -------------------------
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless Sections 8.1 and until 8.2 unless, and solely to the extent that, the aggregate amount of USOP Damages exceeds one percent (1%) of the Base Merger Consideration $250,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, -------- ------- that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) any USOP Damages arising out of any breaches resulting from a breach of the covenants of the Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock regarding Taxes, environmental matters or any non-payment of Broker's or Finder's Fee incurred by the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting Stockholders and/or the Company shall be from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement)first dollar;
(b) the aggregate amount of any the Stockholders' liability for Damages of the Shareholders, CCC and Newco under this Article 10 Section 8 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;Maximum Consideration; and
(c) the right of any USOP Indemnified Party to make recourse to the Pledged Shares to satisfy the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, Section 8 shall terminate at as follows:
(i) with respect to claims or demands (a "Claim") of a nature and of sufficient materiality typically expected to be encountered in the date that is audit process, on the later of (a) the date of completion of the first independent audit of financial statements containing combined operations of USOP and the Company (the "First Audit") or (b) the final resolution of any Claims pending on the First Audit; and (ii) with respect to all Claims other than those referred to in clause (i) or (ii) of this Section 10.3(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), on the later of (x) the first anniversary of the Closing Date, or
Date (2the "First Anniversary") (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is sought), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) and all Claims under this Agreement pending as of the relevant First Anniversary. The term "Indemnification Deadline Date" refers to the dates described specified in clause clauses (ia) of this Section 10.3(cand (x) (such claims referred to as above, and the term "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment " refers to the Base Merger Consideration pursuant Claims referred to in clauses (b) and (y) above. From and after the applicable Indemnification Deadline Date, the indemnification obligations under this Section 3.1;8 shall survive only to the extent of Pending Claims.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Us Office Products Co)
Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless and until the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration (the "Indemnification --------------- Threshold"), ------------------------- at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) Damages arising out of any breaches of the covenants of the Shareholders set forth in this Agreement or representations and warranties made in Sections 5.4 (capital stock of the Company), 5.5 (transactions in capital stock), 5.18 (material contracts and commitments), 5.23 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement);
(b) the aggregate amount of any liability for Damages of the Shareholders, CCC and Newco under this Article 10 shall not exceed 50% of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;
(c) the indemnification obligations under this Article 10, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c), the first anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 (employee benefit plans), 5.24 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants only), 10.1(a)(iii), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is sought), or (B) if there is no applicable statute of limitation, (i) four (4) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (ii) two (2) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand (but not any other claim or demand) pending as of the relevant dates described in clause (i) of this Section 10.3(c) (such claims referred to as "Pending Claims"); -------------- --------------
(d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;
(e) in no event will any CCC Indemnified Party be entitled to any indemnification hereunder from any Shareholder that is an employee benefit plan within the meaning of ERISA Section 3(3) to the extent that such indemnification could: (i) result in a transaction prohibited under ERISA Section 406 or Code Section 4975; (ii) give rise to a claim for breach of any such plan fiduciaries' duties with respect to such plan; or (iii) otherwise violate any applicable provision of ERISA or the Code; or
(f) in no event will any CCC Indemnified Party be entitled to joint and several indemnification hereunder for the breach by any Shareholder of the provisions of Article 11 or Article 12 hereof; it being understood and agreed that the CCC Indemnified Party shall be entitled to indemnification only from the Shareholder breaching Article 11 or Article 12, as applicable.
(g) the Shareholders shall have no liability under this Article 10 in respect of any Damages the full value of which have been recouped by CCC as a result of (i) the payment by the Shareholders to the Surviving Corporation or CCC of uncollected Accounts Receivable pursuant to Section 7.2 or (ii) CCC's not having to pay to the Shareholders any portion of the Contingent Merger Consideration because of any failure to achieve the targets set forth in Section 2.3(a) (i) herein.
(h) After the Effective Time, indemnification pursuant to this Section 10 shall be the sole and exclusive remedy of any Indemnified Party for any breach of any representation, warranty, covenant or other agreement herein or otherwise arising out of or in connection with the transactions contemplated by this Agreement or the operations of the Company, whether such claim may be asserted as a breach of contract, tort, a violation or breach of the 1933 Act or the rules and regulations promulgated thereunder or otherwise, except with regard to Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Company, the Shareholders, CCC or Newco, as applicable.
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Samples: Agreement and Plan of Reorganization (Consolidation Capital Corp)
Limitation and Expiration. Notwithstanding anything in this Agreement to the abovecontrary:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 8.1 unless and until the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $156,300 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the no Indemnification Threshold shall not apply to (i) adjustments with respect to the Merger Consideration as set forth in Sections 2.2 and 3.1, which adjustments shall not constitute Damages; (ii) recovery of Damages arising out of (i) any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 3.4 (capital stock of the Company), 5.5 3.5 (transactions in capital stock), 5.18 3.18 (significant customers; material contracts and commitments), 5.23 or 3.26 (conformity with law; , litigation), 5.24 ; or (taxes), 5.27 (environmental mattersii) or resulting from any receivables from related persons that are listed those matters set forth on Schedule 8.13 3.26(b) and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration StatementSchedule 8.1(a);
(b) the aggregate amount of any the Stockholders' liability for Damages of the Shareholders, CCC and Newco under this Article 10 8 shall not exceed 50% the Closing Payment plus the principal payments actually paid or payable pursuant to the Notes, provided, however, that, the FTI Indemnified Parties' rights to receive indemnification of amounts with respect to amounts payable under the Notes shall be limited to the Buyer's rights to set-off and apply future payments under the Notes to such indemnification obligations of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicable;Stockholders; and
(c) the indemnification obligations under this Article 10, 8 or under in any certificate or writing furnished in connection herewith, herewith shall terminate at the date that is on the later of clause (i), (ii) or (iiiii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c8.2(c), the first second anniversary of the Closing Date, or; and
(2) (w) with respect to representations representations, warranties and warranties of the Shareholders covenants contained in Sections 5.22 3.22 (environmental matters), 3.24 (employee benefit plans), 5.24 3.25 (taxes), 5.27 (environmental matters), and the indemnification indemnifications set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlySection 8.1(a)(iii), 10.1(a)(iii), 10.1(a)(iv), (iv) or 10.2(a)(ii) (with respect to pre-closing covenants onlyv) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim claim is related to the cost of investigating, containing, removing, removing or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim claim covered by clause (i)(2)(Bi)(2) of this Section 10.3(c8.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or;
(ii) with respect to a particular claim or demand, the final resolution of such claim or demand Claims (but not any other claim or demandas defined below) pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"), the final resolution thereof; -------------- and
(diii) with respect to representations and warranties contained in Section 3.4 (capital stock of the Company), there shall be no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;limitation.
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Limitation and Expiration. Notwithstanding the above:
(a) there shall be no liability for indemnification under Section 10.1 or Section 10.2 unless 8.1 unless, and until solely to the extent that, the aggregate amount of Damages exceeds one percent (1%) of the Base Merger Consideration $75,000 (the "Indemnification --------------- Threshold"), at which time the Indemnifying Party (defined in Section 10.4 --------- below) shall be liable for all Damages from the first dollar; provided, however, that the Indemnification Threshold shall not apply to (i) adjustments to the Merger Consideration Cash Purchase Price as set forth in Sections 2.2 1.2 and 3.1, which adjustments shall not constitute Damages1.3; (ii) Damages arising out of any breaches of the covenants of the Shareholders Stockholders set forth in this Agreement or representations and warranties made in Sections 5.4 3.4 (capital stock of the Company), 5.5 3.5 (transactions in capital stock; accounting treatment), 5.18 3.19 (significant customers; material contracts and commitments), 5.23 3.23 (environmental matters), 3.25 (employee benefit plans), 3.26 (taxes), or 3.27 (conformity with law; litigation), 5.24 (taxes), 5.27 (environmental matters) or resulting from any receivables from related persons that are listed on Schedule 8.13 and are not repaid pursuant to their terms; (iii) Damages described in Section 10.1(a)(iv), or (iv) Damages arising out of any breaches of the covenants of CCC or Newco set forth in this Agreement or representations and warranties made in Section 6.2 (CCC Common Stock), 6.5 (Capitalization), Section 6.6 (litigation), 6.8 (CCC Prospectus), or 6.9 (Registration Statement8.1(a)(iv);
(b) the aggregate amount of any the Stockholders' or Buyer's liability under this Article 8 shall not exceed the Purchase Price; provided, however, that the Stockholders' liability for Damages arising out of any breaches of the Shareholdersrepresentations made in Sections 3.23 (environmental matters), CCC and Newco under this Article 10 3.25 (employee benefit plans) or 3.26 (taxes) or Damages described in Section 8.1(a)(ii) or (iv) shall not exceed 50% be subject to such limitation and shall not count toward the limitation described in the first clause of the Merger Consideration except with regard to any Damages that occur as a result of fraudulent misrepresentations or fraudulent acts of the Shareholders, CCC or Newco, as applicablethis Section 8.2(b);
(c) the indemnification obligations under this Article 108, or under any certificate or writing furnished in connection herewith, shall terminate at the date that is the later of clause (i) or (ii) of this Section 10.3(c8.2(c):
(1) except as to representations, warranties, and covenants specified in clause (i)(2) of this Section 10.3(c8.2(c), the first third anniversary of the Closing Date, or
(2) (w) with respect to representations and warranties of the Shareholders contained in Sections 5.22 3.23 (environmental matters), 3.25 (employee benefit plans), 5.24 3.26 (taxes), 5.27 (environmental matters), and the indemnification set forth in Sections 10.1(a)(ii) (with respect to pre-closing covenants onlySection 8.1(a)(ii), 10.1(a)(iii(iii) or (iv), 10.1(a)(iv), or 10.2(a)(ii) (with respect to pre-closing covenants only) on (A) the date that is six (6) months after the expiration of the longest applicable federal or state statute of limitation (including extensions thereof agreed to by the party from whom indemnification is soughtthereof), or (B) if there is no applicable statute of limitation, (ix) four ten (410) years after the Closing Date if the Claim is related to the cost of investigating, containing, removing, or remediating a release of Hazardous Material into the environment, or (iiy) two five (25) years after the Closing Date for any other Claim covered by clause (i)(2)(B) of this Section 10.3(c8.2(c), (x) with respect to covenants of the Shareholders to be performed after the Closing Date until fully performed and discharged, (y) with respect to covenants of CCC and Newco contained in Section 7.15 or the representations, warranties and covenants set forth in the certificate delivered by or on behalf of CCC and Newco pursuant to Section 9.5, until the expiration of the longest applicable federal or state statute of limitations (including extensions thereof agreed to by the party from whom indemnification is sought), and (z) with respect to the covenants or agreements of CCC and Newco to be performed after the Closing Date until fully performed and discharged; or
(ii) with respect to a particular claim or demand, the final resolution of such claim claims or demand (but not any other claim or demand) demands pending as of the relevant dates described in clause (i) of this Section 10.3(c8.2(c) (such claims referred to as "Pending Claims"); -------------- (d) in no event will any CCC Indemnified Party be entitled to indemnification hereunder for the breach of a representation, warranty or covenant where the identical subject matter thereof has also resulted in, or caused, a Merger Consideration Adjustment to the Base Merger Consideration pursuant to Section 3.1;.
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