Limitations and Requirements. (a) Seller and Stockholders shall have no obligation to indemnify the Buyer Indemnitees against Damages pursuant to this Agreement unless and until the aggregate of all such Damages exceeds $50,000 (the “Indemnification Basket”), in which event the Buyer Indemnitees shall be entitled to indemnification for any Damages in excess of the Indemnification Basket; provided, however, that the above limitation shall not be applicable to any claim for Damages based upon any inaccuracy or breach of any representation or warranty made in or pursuant to Sections 3.2, 3.12, 3.17, 3.19, 3.20, 3.24, 3.27, 4.1 and 4.3 (the “Seller Fundamental Representations”) or Sections 7.1(c), (d) or (g) (except with respect to any Retained Liabilities under Section 2.5(i)) of this Agreement or to matters arising out of any fraud or intentional misrepresentation of Seller or any Stockholder. The maximum aggregate amount for which Seller and Stockholders shall be obligated to indemnify the Buyer Indemnitees against Damages pursuant to Section 7.1 (excluding Damages in respect of any inaccuracy in or breach of any Seller Fundamental Representation or Sections 7.1(c), (d) or (g) of this Agreement, or in respect of any matters arising out of any fraud or intentional misrepresentation of Seller or any Stockholder) shall be limited to $5,000,000. (b) Buyer and Parent shall have no obligation to indemnify Seller or Stockholders against Damages pursuant to this Agreement unless and until the aggregate amount of Damages for which Buyer would otherwise be obligated to indemnify Seller Indemnitees shall exceed the Indemnification Basket, in which event the Seller Indemnitees shall be entitled to indemnification for any Damages in excess of the Indemnification Basket; provided, however, that the above limitation shall not be applicable to any claim for Damages based upon any inaccuracy or breach of any representation or warranty made in or pursuant to Sections 5.1 or 5.5 (the “Buyer Fundamental Representations”) or Sections 7.2(c) of this Agreement or to matters arising out of any fraud or intentional misrepresentation of Buyer and Parent. The maximum aggregate amount of the Buyer’s obligation to indemnify Seller Indemnitees against Damages pursuant to Section 7.2 (excluding Damages in respect of any inaccuracy in or breach of any Buyer Fundamental Representation or Sections 7.2(c) of this Agreement, or in respect of any matters arising out of any fraud or intentional misrepresentation of Buyer or Parent) shall be limited to $3,000,000. (c) No claim pursuant to Section 7.1(a) or Section 7.2(a) or otherwise in respect of any inaccuracy in or breach of a representation or warranty of this Agreement (except to the extent that any such claim can be made for any other reason under Section 7.1 or Section 7.2 or other provision of this Agreement), shall be made unless written notice pursuant to Section 7.3 is delivered to the Indemnifying Party within two years after the Closing Date; provided, that any such claim arising out of or based upon any inaccuracy in or breach of any Seller Fundamental Representation or Buyer Fundamental Representation may be made at any time before the date that is 60 days after the expiration of the longest statute of limitations period applicable to an action brought by any Person with respect to the matters forming the basis for such a claim. (d) Buyer or Parent, on behalf of itself and any other Buyer Indemnitee, upon notice to Seller and the Stockholders, may set off any amount to which it or any Buyer Indemnitee determines, in good faith, they are entitled to pursuant to this Article 7, (i) first from amounts due and payable under the Earn Out Agreement and (ii) next from amounts due under the Note. Neither the exercise of nor the failure to exercise such right of set off will consitute an election of remedies or limit Buyer in any manner in the enforcement of any other remedies that may be available to it. (e) For purposes of this Article 7, in determining whether there has been a breach of any representation or warranty set forth in this Agreement or any other Transaction Document, or the amount of any Damages related to a breach of such representation or warranty, the qualifications as to the materiality of such matters or whether or not any breach results or may result in a Material Adverse Effect (or words of similar import) set forth in such representation or warranty shall be disregarded. (f) For purposes of this Article 7, any calculation of Damages pursuant to Section 7.1 shall be reduced by the amount of any insurance benefits that are included in the Purchased Assets and actually received by Buyer that arise from or relate to the Purchased Assets or the Assumed Liabilities prior to the Effective Time.
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Limitations and Requirements. (a) Seller and Stockholders shall have no obligation to indemnify the Buyer Indemnitees against Damages pursuant to Section 7.1(a) of this Agreement unless and until the aggregate of all such Damages exceeds $50,000 25,000 (the “Indemnification Basket”), in which event the Buyer Indemnitees shall be entitled to indemnification for any all Damages in excess of the Indemnification Basketincurred; provided, however, that the above limitation shall not be applicable to any claim for Damages based upon any inaccuracy or breach of any representation or warranty made in or pursuant to Sections 3.2, 3.4, 3.11, 3.12, 3.17, 3.19, 3.20, 3.22(d), 3.23, 3.24, 3.27, 4.1 4.1, 4.2 and 4.3 (the “Seller Fundamental Representations”) or Sections 7.1(c), 7.1(b) through (d) or (g) (except with respect to any Retained Liabilities under Section 2.5(i)i) of this Agreement or to matters arising out of any fraud or intentional misrepresentation of Seller or any Stockholder. The maximum aggregate amount for which Seller and Stockholders shall be obligated to indemnify the Buyer Indemnitees against Damages pursuant to Section 7.1 7.1(a) (excluding Damages in respect of any inaccuracy in or breach of any Seller Fundamental Representation or Sections 7.1(c), 7.1(b) through (d) or (gi) of this Agreement, or in respect of any matters arising out of any fraud or intentional misrepresentation of Seller or any Stockholder) shall be limited to $5,000,0002,500,000.
(b) Buyer and Parent shall have no obligation to indemnify Seller or Stockholders against Damages pursuant to this Agreement unless and until the aggregate amount of Damages for which Buyer would otherwise be obligated to indemnify Seller Indemnitees shall exceed the Indemnification Basket, in which event the Seller Indemnitees shall be entitled to indemnification for any Damages in excess of the Indemnification Basket; provided, however, that the above limitation shall not be applicable to any claim for Damages based upon any inaccuracy or breach of any representation or warranty made in or pursuant to Sections 5.1 or 5.5 (the “Buyer Fundamental Representations”) or Sections 7.2(c) of this Agreement or to matters arising out of any fraud or intentional misrepresentation of Buyer and Parent. The maximum aggregate amount of the Buyer’s obligation to indemnify Seller Indemnitees against Damages pursuant to Section 7.2 (excluding Damages in respect of any inaccuracy in or breach of any Buyer Fundamental Representation or Sections 7.2(c) of this Agreement, or in respect of any matters arising out of any fraud or intentional misrepresentation of Buyer or Parent) shall be limited to $3,000,000.
(c) No claim pursuant to Section 7.1(a) or Section 7.2(a) or otherwise in respect of any inaccuracy in or breach of a representation or warranty of this Agreement (except to the extent that any such claim can be made for any other reason under Section 7.1 or Section 7.2 or other provision of this Agreement), shall be made unless written notice pursuant to Section 7.3 is delivered to the Indemnifying Party within two years after the Closing Date; provided, that any such claim arising out of or based upon any inaccuracy in or breach of any Seller Fundamental Representation or Buyer Fundamental Representation may be made at any time before the date that is 60 days after the expiration of the longest statute of limitations period applicable to an action brought by any Person with respect to the matters forming the basis for such a claim.
(c) Buyer and Parent shall have no obligation to indemnify Seller or Stockholders against Damages pursuant to Section 7.2(a) unless and until the aggregate amount of Damages for which Buyer would otherwise be obligated to indemnify Seller Indemnitees shall exceed the Indemnification Basket, and then Buyer shall be liable for all such Damages, and the maximum aggregate amount of the Buyer’s obligation to indemnify Seller Indemnitees against Damages pursuant to Section 7.2(a) shall be limited to $1,000,000.
(d) Buyer or Parent, on behalf of itself and any other Buyer Indemnitee, upon notice to Seller and the StockholdersShareholders, may set off any amount amount, determined in good faith, to which it or any Buyer Indemnitee determinesmay be entitled under any Transaction Document, in good faith, they are entitled to including any amounts owed by Seller or the Stockholders pursuant to this Article 7, (i) first from amounts due and payable under the Earn Out Agreement and (ii) next from amounts due under the NoteEarn Out Agreement. Neither the exercise of nor the failure to exercise such right of set off will consitute an election of remedies or limit Buyer in any manner in the enforcement of any other remedies that may be available to it. If Buyer or Parent exercises its rights pursaunt to this Section 7.5(d), Buyer or Parent, as applicable, shall place the amount of such set off in an interest bearing escrow account, on such terms and conditions which are mutually agreeable to Seller, the Stockholders and the applicable Buyer Indemnified Party. Upon a final determination, whether by mutual written agreement of the parties or upon the non-appealable adjudication of the applicable dispute, the escrowed sum, plus the accrued and unpaid interest on such sum, shall be released to the party or parties entitled to the receipt thereof.
(e) For purposes of this Article 7, in determining whether there has been a breach of any representation or warranty set forth in this Agreement or any other Transaction Document, or the amount of any Damages related to a breach of such representation or warranty, the qualifications as to the materiality of such matters or whether or not any breach results or may result in a Material Adverse Effect (or words of similar import) set forth in such representation or warranty shall be disregarded.
(f) For purposes of this Article 7, any calculation of Damages pursuant to Section 7.1 shall be reduced by the amount of any insurance benefits that are included in the Purchased Assets and actually received by Buyer that arise from or relate to the Purchased Assets or the Assumed Liabilities prior to the Effective Time.
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Limitations and Requirements. From and after the Closing:
(a) Seller and Stockholders Sellers shall have no obligation to indemnify the Buyer Indemnitees Indemnified Parties against Damages (i) pursuant to Section 14.1(i) or 14.2(a) arising out of or based upon any breach of any representation or warranty made in or pursuant to this Agreement (A) unless the Damages related to any such breach (including multiple conditions or events that arise out of or are based upon such breach) are greater than $10,000 (the "Individual Threshold") and (B) unless and until the aggregate of all such Damages (other than Damages that fail to exceed the Individual Threshold) suffered or incurred by all such Buyer Indemnified Parties exceeds $50,000 (the “Indemnification Basket”)1,000,000, in which event event, the Buyer Indemnitees Indemnified Parties shall be entitled to indemnification for any Damages in excess the full amount of the Indemnification Basketsuch excess; provided, however, that the above limitation limitations shall not be applicable to any claim for Damages based upon any inaccuracy or a breach of any representation or warranty made in or pursuant to Sections 3.2, 3.123.4, 3.174.2, 3.194.4, 3.20or 10.1 hereof.
(b) In the absence of fraud, 3.24, 3.27, 4.1 and 4.3 (the “Seller Fundamental Representations”) or Sections 7.1(c), (d) or (g) (except with respect to any Retained Liabilities under Section 2.5(i)) of this Agreement or to matters arising out of any fraud or intentional misrepresentation of Seller or any Stockholder. The maximum aggregate amount for which Seller and Stockholders Sellers shall not be obligated to indemnify the Buyer Indemnitees Indemnified Parties against Damages pursuant to to:
(i) Section 7.1 (excluding Damages in respect of any inaccuracy in 14.1(i) or breach of any Seller Fundamental Representation or Sections 7.1(cSection 14.2(a), (de) or (gf) to the extent that payments thereof by or on behalf of Sellers to the Buyer Indemnified Parties pursuant to the terms of this Agreement, or in respect of any matters arising out of any fraud or intentional misrepresentation of Seller or any Stockholder) shall be limited to $5,000,000.
(b) Buyer and Parent shall have no obligation to indemnify Seller or Stockholders against Damages pursuant to this Agreement unless and until the aggregate amount of Damages for which Buyer would otherwise be obligated to indemnify Seller Indemnitees shall exceed the Indemnification Basket, in which event the Seller Indemnitees shall be entitled to indemnification for any Damages in excess of the Indemnification BasketGeneral Escrow Amount; provided, however, that the above limitation limitations set forth in this Section 14.6(b)(i) shall not be applicable apply to any claim for Damages based upon any inaccuracy or breach of any representation or warranty made in Sections 3.2, 3.4, 4.2, or pursuant 4.4 hereof, the limitations with respect to Sections 5.1 or 5.5 which are set forth in clause (the “Buyer Fundamental Representations”) or Sections 7.2(cii) of this Agreement or to matters arising out of any fraud or intentional misrepresentation of Buyer and Parent. The maximum aggregate amount of the Buyer’s obligation to indemnify Seller Indemnitees against Damages pursuant to Section 7.2 (excluding Damages in respect of any inaccuracy in or breach of any Buyer Fundamental Representation or Sections 7.2(c) of this Agreement, or in respect of any matters arising out of any fraud or intentional misrepresentation of Buyer or Parent) shall be limited to $3,000,000.14.6(b);
(c) No claim pursuant to Section 7.1(a) or Section 7.2(a) or otherwise in respect of any inaccuracy in or breach of a representation or warranty of this Agreement (except to the extent that any such claim can be made for any other reason under Section 7.1 or Section 7.2 or other provision of this Agreement), shall be made unless written notice pursuant to Section 7.3 is delivered to the Indemnifying Party within two years after the Closing Date; provided, that any such claim arising out of or based upon any inaccuracy in or breach of any Seller Fundamental Representation or Buyer Fundamental Representation may be made at any time before the date that is 60 days after the expiration of the longest statute of limitations period applicable to an action brought by any Person with respect to the matters forming the basis for such a claim.
(d) Buyer or Parent, on behalf of itself and any other Buyer Indemnitee, upon notice to Seller and the Stockholders, may set off any amount to which it or any Buyer Indemnitee determines, in good faith, they are entitled to pursuant to this Article 7, (i) first from amounts due and payable under the Earn Out Agreement and (ii) next from amounts due under the Note. Neither the exercise of nor the failure to exercise Section 14.1(i) or 14.2(a) if such right of set off will consitute an election of remedies or limit Buyer in any manner in the enforcement of any other remedies that may be available to it.
(e) For purposes of this Article 7, in determining whether there has been claim is based on a breach of any representation or warranty set forth made in Sections 3.2, 3.4, 4.2, or 4.4, or pursuant to Section 14.1(ii), or Sections 14.2(b) or (g), in each case to the extent that payments thereof by or on behalf of Sellers to the Buyer Indemnified Parties pursuant to the terms of this Agreement exceed the Purchase Price;
(iii) Section 14.2(d), to the extent that payments thereof by or on behalf of Sellers to the Buyer Indemnified Parties pursuant to the terms of this Agreement exceed the Tax Escrow Amount; and
(iv) Section 14.2(c), to the extent that payments thereof by or on behalf of Sellers to the Buyer Indemnified Parties pursuant to the terms of this Agreement exceed the T-I Escrow Amount; provided, however, that the aggregate of all amounts paid to the Buyer Indemnified Parties pursuant to claims made under Section 14.1 and Section 14.2 shall not exceed the Purchase Price.
(c) Except as may otherwise expressly be provided in this Agreement or any other Transaction Document, no claim for indemnification pursuant to this Section 14 may or shall be made unless such claim arises and written notice pursuant to Section 14.4 or Section 14.5, as applicable, is delivered to the Indemnifying Party in accordance with Section 14.8.
(d) Notwithstanding anything herein to the contrary, except as set forth in Section 14.1, no Seller shall in any way be liable for any amount in excess of such Seller's Ownership Percentage of any Damages related and the aggregate liability of any Seller under this Section 14 for any Damages, as further limited under this Section 14.6(d), shall in no event exceed the aggregate amount of the portion of the Aggregate Cash Proceeds, the Specified Employees Bonus Amount and the Accrued Dividend Amount paid to a the Sellers' Representative, the Escrow Agent and the Reserve Account on behalf of such Seller pursuant to this Agreement. Notwithstanding anything in this Agreement to the contrary, no Seller shall be liable or responsible, directly or indirectly, for any Damages for any breach of such representation any representation, warranty or warranty, the qualifications as covenant made by any other Seller. Notwithstanding anything contained in this Agreement to the materiality contrary, no Buyer Indemnified Party shall have any right to indemnification under Section 14.2(a) with respect to any Damages to the extent specifically accrued for in the Balance Sheet or the Interim Balance Sheet; provided however, that this limitation shall not apply to any claim for indemnification pursuant to Section 14.2(b)-(g).
(e) The Sellers and Buyer acknowledge, on their behalf and, in the case of such matters or whether or not any breach results or may result in a Material Adverse Effect (or words Buyer, on behalf of similar import) the other Buyer Indemnified Parties that, after the Closing, their sole and exclusive remedy with respect to the subject matter of this Agreement shall be pursuant to the indemnification provisions set forth in such representation this Section 14 (other than claims and causes of action based on fraud); provided that this shall not affect the right of any party to seek or warranty shall be disregardedobtain specific performance or other equitable remedies.
(f) For purposes Upon payment in full of this Article 7, any calculation of Damages Inter-Party Claim pursuant to Section 7.1 14.4 or the payment of any judgment or settlement with respect to a Third Party Claim, the Indemnifying Party shall be reduced by the amount of any insurance benefits that are included in the Purchased Assets and actually received by Buyer that arise from or relate subrogated to the Purchased Assets or the Assumed Liabilities prior extent of such payment to the Effective Timerights of the Indemnified Party against any Person (other than the Buyer Indemnified Parties) with respect to the subject matter of such Indemnification Claim or Third Party Claim; provided, however, that such Person is not then or projected to be a customer or supplier of the Company or any of its Subsidiaries. The Indemnified Parties shall assign or otherwise reasonably cooperate with the Indemnifying Parties to pursue any claims against, or otherwise recover amounts from, any Person liable or responsible for any Damages for which indemnification has been received pursuant to this Agreement.
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Limitations and Requirements. (a) Seller and Stockholders shall have Except as may otherwise expressly be provided in this Agreement, no obligation to indemnify the Buyer Indemnitees against Damages claim pursuant to this Agreement unless and until the aggregate Section 9.1(a) or Section 9.2 arising out of all such Damages exceeds $50,000 (the “Indemnification Basket”), in which event the Buyer Indemnitees shall be entitled to indemnification for any Damages in excess of the Indemnification Basket; provided, however, that the above limitation shall not be applicable to any claim for Damages or based upon any inaccuracy in or breach of any representation or warranty made contained in or pursuant to Sections 3.2, 3.12, 3.17, 3.19, 3.20, 3.24, 3.27, 4.1 and 4.3 (the “Seller Fundamental Representations”) or Sections 7.1(c), (d) or (g) (except with respect to any Retained Liabilities under Section 2.5(i)) of this Agreement or to matters arising out of any fraud or intentional misrepresentation of Seller or any Stockholder. The maximum aggregate amount for which Seller and Stockholders shall be obligated to indemnify the Buyer Indemnitees against Damages pursuant to Section 7.1 (excluding Damages in respect of any inaccuracy in or breach of any Seller Fundamental Representation or Sections 7.1(c), (d) or (g) of this Agreement, or in respect of any matters arising out of any fraud or intentional misrepresentation of Seller or any Stockholder) shall be limited to $5,000,000.
(b) Buyer and Parent shall have no obligation to indemnify Seller or Stockholders against Damages pursuant to this Agreement unless and until the aggregate amount of Damages for which Buyer would otherwise be obligated to indemnify Seller Indemnitees shall exceed the Indemnification Basket, in which event the Seller Indemnitees shall be entitled to indemnification for any Damages in excess of the Indemnification Basket; provided, however, that the above limitation shall not be applicable to any claim for Damages based upon any inaccuracy or breach of any representation or warranty made in or pursuant to Sections 5.1 or 5.5 (the “Buyer Fundamental Representations”) or Sections 7.2(c) of this Agreement or to matters arising out of any fraud or intentional misrepresentation of Buyer and Parent. The maximum aggregate amount of the Buyer’s obligation to indemnify Seller Indemnitees against Damages pursuant to Section 7.2 (excluding Damages in respect of any inaccuracy in or breach of any Buyer Fundamental Representation or Sections 7.2(c) of this Agreement, or in respect of any matters arising out of any fraud or intentional misrepresentation of Buyer or Parent) shall be limited to $3,000,000.
(c) No claim pursuant to Section 7.1(a) or Section 7.2(a) or otherwise in respect of any inaccuracy in or breach of a representation or warranty of this Agreement (except to the extent that any such claim can be made for any other reason under Section 7.1 or Section 7.2 or other provision of this Agreement), Transaction Document shall be made unless written notice pursuant to Section 7.3 9.3 is delivered to the Indemnifying Party within two years six months after the Closing Date; provided, that PROVIDED THAT any such claim arising out of or based upon any inaccuracy in or breach of any Seller Fundamental Representation representation or Buyer Fundamental Representation warranty made in or pursuant to: (i) Sections 4.1, 4.2, 4.3, 4.4, 4.17, 4.20, 5.1, 5.2 or 5.3 may be made at any time; and (ii) Sections 4.6, 4.10, 4.18, or 4.19 may be made at any time before the date that is 60 days after the expiration of the longest statute of limitations period applicable to an action brought by any Person or Authority with respect to the matters forming the basis for such a claim.
(b) The indemnification obligations of Seller contained herein are not intended to waive or preclude any other claims, rights or remedies that may exist in equity with respect to the matters covered by the indemnifications.
(c) The amounts for which any Indemnifying Party may be liable for a claim under this Section 9 shall be net of any insurance proceeds actually received by the Indemnified Party in connection with facts giving rise to such claim.
(d) Buyer or ParentNotwithstanding the foregoing provisions of this Section 9, Buyer, on behalf of itself each of the Indemnified Persons, agrees that the Indemnified Persons shall have no right to indemnity under the provisions of Sections 9.1(a) and liabilities under 9.1(c)(ii) resulting from Buyer's failure to comply with the proviso at the end of that Section until such time as the aggregate amount of Damages suffered or incurred by all of the Indemnified Persons, as a group, exceeds $250,000 (the "INDEMNITY BASKET"), and that if such aggregate Damages as aforesaid do eventually exceed the Indemnity Basket, then the full amount shall thereupon be subject to indemnification hereunder.
(e) The maximum aggregate amount payable by Seller for any and all Damages or any other Buyer Indemniteematter whatsoever arising out of, upon notice to Seller and related to, or in connection with, this Agreement, any of the Stockholdersother documents or certificates delivered hereby, may set off any amount to which it or any Buyer Indemnitee determinesof the transactions contemplated hereby or thereby, is $15,000,000 (the "CAP"), except in the case of actual fraud, in good faith, they are entitled to which case the Cap shall be the amounts actually received by Seller from Buyer pursuant to this Article 7, Agreement.
(f) The parties further agree that (i) first from amounts due and payable under the Earn Out Agreement there shall not be any multiple recovery for any Damages and (ii) next from amounts due indemnification under this Section 9, the Note. Neither payment of the exercise of nor the failure Break Up Fee (as defined in Section 10.4(b)) and any right to exercise such right of set off will consitute an election of remedies or limit Buyer in any manner in the enforcement of any other remedies equitable remedies, including specific performance, that may be available to it.
(e) For purposes of this Article 7, in determining whether there has been a breach of any representation or warranty set forth in this Agreement or any other Transaction Document, or the amount of any Damages related to a breach of such representation or warranty, the qualifications as to the materiality of such matters or whether or not any breach results or may result in a Material Adverse Effect (or words of similar import) set forth in such representation or warranty Buyer shall be disregardedBuyer's only remedies for breaches of representations, warranties and covenants under this Agreement.
(f) For purposes of this Article 7, any calculation of Damages pursuant to Section 7.1 shall be reduced by the amount of any insurance benefits that are included in the Purchased Assets and actually received by Buyer that arise from or relate to the Purchased Assets or the Assumed Liabilities prior to the Effective Time.
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