Limitations on Liabilities. Notwithstanding anything to the contrary contained herein, (i) other than with respect to a breach of a Fundamental Representation, no party shall be obligated to indemnify and hold harmless any other under Section 9.2 for breaches of representations and warranties unless and until all Indemnified Losses in respect of which such party is obligated to provide indemnification exceed Fifty Thousand Dollars (US$50,000) (the “Basket Amount”) following which (subject to the provisions of this Section 9.3) such party shall be obligated to indemnify and hold harmless, the other party for all such Indemnified Losses in excess of the Basket Amount; provided however that the Basket Amount shall not apply to indemnity obligations for Indemnified Losses arising as a result of fraud. In addition, no individual claim for Indemnified Loss shall count toward the Basket Amount unless it exceeds ten thousand dollars ($10,000) ("De Minimus Amount"), following which the full amount of such individual claim for Indemnified Loss shall be aggregated together with other claims for Indemnified Losses exceeding the De Minimus Amount for purposes of calculating the Basket Amount. (ii) other than with respect to breaches of a Fundamental Representations, fraud, gross negligence and willful misconduct, the Stockholders shall not be obligated to indemnify and hold harmless the Purchaser Indemnified Parties under Section 9.2 for breaches of representations and warranties in an amount in excess of the Escrow Shares; and (iii) each Stockholder’s maximum liability for indemnification of Purchaser Indemnified Parties hereunder for breaches of representations and warranties shall not exceed such Stockholder’s pro rata amount of the Merger Consideration actually received by such Stockholder.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Red Cat Holdings, Inc.), Agreement and Plan of Merger (Red Cat Holdings, Inc.)
Limitations on Liabilities. (a) Notwithstanding anything to the contrary contained herein, in no event shall the aggregate sums payable under Section 7.03 (other than sums payable as a result of fraud) exceed (i) other than with respect to a breach Red Cat or the Principal Stockholder the Escrow Shares under the Escrow Agreement and the aggregate liability for Unusual exceed $1.8 million. Notwithstanding anything herein to the contrary, the Escrow Shares shall be the sole and exclusive recourse by Unusual for any breaches of a Fundamental Representationthe representations and warranties set forth in this Agreement by Red Cat and/or the Principal Stockholder and for any Red Cat or Principal Stockholder Indemnified Losses. The Principal Stockholder shall have no right of indemnification or contribution against Red Cat for any claims or breaches of the representations and warranties of Red Cat set forth herein or any Red Cat Indemnified Losses. Notwithstanding anything to the contrary contained herein, no party Party (including Unusual) shall be obligated to indemnify and hold harmless any other under Section 9.2 7.04 for breaches of representations and warranties unless and until all Indemnified Losses in respect of which such party Party is obligated to provide indemnification exceed Fifty Thousand Dollars (US$50,000) $250,000 (the “Basket Amount”) following which (subject to the provisions of this Section 9.37.04) such party Party shall be obligated to indemnify and hold harmless, the other party Party for all such Indemnified Losses in excess of (not merely the amount by which the Indemnified Losses exceed the Basket Amount); provided provided, however that the Basket Amount shall not apply to indemnity obligations for Indemnified Losses arising as a result of fraud. In addition, no individual claim for Indemnified Loss shall count toward the Basket Amount unless it exceeds ten thousand dollars ($10,000) ("De Minimus Amount"), following which the full amount fraud if determined by a final decision of such individual claim for Indemnified Loss shall be aggregated together with other claims for Indemnified Losses exceeding the De Minimus Amount for purposes a court of calculating the Basket Amount. (ii) other than with respect to competent jurisdiction or breaches of a Fundamental Representations, fraud, gross negligence and willful misconduct, the Stockholders shall not be obligated to indemnify and hold harmless the Purchaser Indemnified Parties under Section 9.2 for breaches of representations and warranties in an amount in excess of the Escrow Shares; Sections 5.07, 5.08, and (iii) each Stockholder’s maximum liability for indemnification of Purchaser Indemnified Parties hereunder for breaches of representations and warranties shall not exceed such Stockholder’s pro rata amount of the Merger Consideration actually received by such Stockholder5.27.
Appears in 2 contracts
Samples: Share Purchase Agreement (Unusual Machines, Inc.), Share Purchase Agreement (Red Cat Holdings, Inc.)
Limitations on Liabilities. (a) Notwithstanding anything to the contrary contained herein, except for subsection (ic) below, in no event shall the aggregate sums payable by the Sellers under Section 6.4(a)(i) (other than with respect sums payable as a result of breaches of the representations and warranties set forth in Sections 4.7, 4.8, 4.16 and 4.20) and indemnification obligations under Section 6.4(a)(ii) through (iii), and (ix) exceed the Purchase Price. (b) Notwithstanding anything to a breach of a Fundamental Representationthe contrary contained herein, no except for subsection (c) below, neither party shall be obligated to indemnify and hold harmless any the other under Section 9.2 6.4 for breaches of representations and warranties unless and until all Indemnified Losses in respect of which such party is obligated to provide indemnification exceed Fifty Ten Thousand United States Dollars (US$50,00010,000) (the “Basket Amount”) following which (subject to the provisions of this Section 9.36.5) such party shall be obligated to indemnify and hold harmless, the other party for all such Indemnified Losses in excess of (not merely the amount by which the Indemnified Losses exceed the Basket Amount; provided however that ) provided, however, for purposes of determining if the Basket Amount shall not apply to indemnity obligations for Indemnified Losses arising as has been exceeded, or whether a result of fraud. In addition, no individual claim for Indemnified Loss shall count toward Liability occurred or the Basket Amount unless it exceeds ten thousand dollars ($10,000) ("De Minimus Amount"), following which the full amount of such individual claim for Indemnified Loss shall be aggregated together with other claims for Indemnified Losses exceeding the De Minimus Amount for purposes Liability resulting from a breach of calculating the Basket Amount. (ii) other than with respect to breaches of a Fundamental Representationsrepresentation or warranty, fraud, gross negligence and willful misconduct, the Stockholders shall not be obligated to indemnify and hold harmless the Purchaser Indemnified Parties under Section 9.2 for breaches of all representations and warranties in an amount in excess this Agreement shall be read without giving effect to any materiality qualifier included the. (c) Notwithstanding anything to the contrary set forth herein, none of the Escrow Shares; and limitations on indemnification set forth in this Section 6.5 shall apply to matters relating to intentional or fraudulent breaches, violations or misrepresentations. (iiid) each Stockholder’s maximum liability for indemnification For purposes of Purchaser Indemnified Parties hereunder for breaches of representations and warranties this Section 6.5 only, the “Purchase Price” shall not exceed such Stockholder’s pro rata amount of the Merger Consideration actually received by such Stockholder.be equal to Four Million United States Dollars (US$4,000,000). ARTICLE 7
Appears in 1 contract
Samples: 3 Purchase Agreement
