Limitations on Indemnification. (a) Notwithstanding the provisions of Section 7.2, Seller shall not be required to indemnify or hold harmless any of Buyer Indemnified Parties on account of any Buyer Indemnified Losses under Section 7.2 unless the liability of Seller in respect of such Buyer Indemnified Loss, when aggregated with the liability of Seller in respect of all Buyer Indemnified Losses under Section 7.2, exceeds $250,000 (the “Threshold Amount”), in which event Buyer Indemnified Parties shall be entitled to indemnification from Seller in an amount equal to the aggregate amount of the Buyer Indemnified Losses. In no event shall the aggregate liability of Seller under Section 7.2 of this Agreement exceed $2,000,000 (the “Ceiling Amount”). Notwithstanding the foregoing, neither the Threshold Amount nor the Ceiling Amount shall be applicable to indemnification pursuant to Section 7.2(iii) or Section 7.2(iv) or with respect to the representations and warranties of Seller set forth in the first and second sentences of Section 3.2, Section 3.2(e), Section 3.8 and Section 3.10. Seller may satisfy any obligations arising pursuant to this Article 7 in any combination of cash or the surrender of Consideration Units for redemption (valued at $21.00 per Consideration Unit); provided that, Seller must provide written notice to Buyer of the intent to make a payment (in whole or in part) by surrendering Consideration Units for redemption at least five business days prior to the due date of any such payment.
(b) Notwithstanding the provisions of Section 7.3, Buyer shall not be required to indemnify or hold harmless any of the Seller Indemnified Parties on account of any Seller Indemnified Loss under Section 7.3 unless the liability of Buyer in respect of such Seller Indemnified Loss, when aggregated with the liability of Buyer in respect of all Seller Indemnified Losses under Section 7.3, exceeds the Threshold Amount, in which event Seller Indemnified Parties shall be entitled to indemnification from Buyer in an amount equal to the aggregate amount of the Seller Indemnified Losses exceed the Threshold Amount. In no event shall Buyer be liable under Section 7.3 of this Agreement for any amount in excess of the Ceiling Amount. Notwithstanding the foregoing, neither the Threshold Amount nor the Ceiling Amount shall be applicable to indemnification pursuant to Section 7.3(iii) or Section 7.3(iv) or with respect the representations and warranties of Buyer set forth in Section 4.6.
(c) The amount of i...
Limitations on Indemnification. No payments pursuant to this Agreement shall be made by the Company:
(a) To indemnify or advance funds to the Indemnitee for Expenses with respect to (i) Proceedings initiated or brought voluntarily by the Indemnitee and not by way of defense, except with respect to Proceedings brought to establish or enforce a right to indemnification under this Agreement or any other statute or law or otherwise as required under applicable law or (ii) Expenses incurred by the Indemnitee in connection with preparing to serve or serving, prior to a Change in Control, as a witness in cooperation with any party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification or advancement of Expenses in each such case may be provided by the Company if the Board finds it to be appropriate;
(b) To indemnify the Indemnitee for any Expenses, judgments, fines, interest or penalties, or excise taxes assessed with respect to any employee benefit or welfare plan, sustained in any Proceeding for which payment is actually made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance;
(c) To indemnify the Indemnitee for any Expenses, judgments, fines, interest or penalties sustained in any Proceeding for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Act or similar provisions of any foreign or United States federal, state or local statute or regulation;
(d) To indemnify the Indemnitee for any Expenses, judgments, fines, interest or penalties, or excise taxes assessed with respect to any employee benefit or welfare plan, for which the Indemnitee is indemnified by the Company otherwise than pursuant to this Agreement;
(e) To indemnify the Indemnitee for any Expenses (including without limitation any Expenses relating to a Proceeding attempting to enforce this Agreement), judgments, fines, interest or penalties, or excise taxes assessed with respect to any employee benefit or welfare plan, on account of the Indemnitee’s conduct if such conduct shall be finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful misconduct, including, without limitation, breach of the duty of loyalty; or...
Limitations on Indemnification. (a) Except with respect to Excluded Claims and subject to Section 9.5(d), the indemnification obligations of the Participating Holders for Damages for the matters specified in Section 9.1(a)(i) shall be limited to an amount equal to the Escrow Amount (the “General Cap”). Claims for Damages under this Agreement (other than pursuant to Sections 9.1(b) and 9.5(d)) shall be: (i) first against the Escrow Amount; and (ii) second, after such time as all Initial Escrow Amount deposited into the Escrow Amount have been exhausted, are subject to preexisting indemnification claims or have otherwise been distributed to the Participating Holders, and only prior to the deposit of the Additional Escrowed Funds, by set off against ten percent (10%) of any unpaid Initial Order Cash Consideration or unpaid Performance Payment. Parent shall seek payment for Damages indemnifiable pursuant to Sections 9.1(b) and 9.5(d) directly from the applicable Significant Stockholder.
(b) Notwithstanding anything to the contrary contained in this Agreement and subject to Section 9.5(d): (i) no Participating Holder shall be liable for an amount in excess of such Participant’s Pro Rata Proportion of the Damages in respect of such matter; and (ii) no Participating Holder shall have an indemnification obligation under this Agreement in excess of the aggregate amount of the Merger Consideration actually received by such Participating Holder pursuant to this Agreement or the Phantom Equity Agreement.
(c) Subject to Section 9.5(d), Parent shall not be permitted to recover any Damages under this Article IX until such Damages exceed, in the aggregate, $500,000 (the “Threshold Amount”), provided, that, after the aggregate amount of Damages exceeds the Threshold Amount, only those Damages above the Threshold Amount shall be recoverable by Parent.
(d) Notwithstanding anything to the contrary contained in this Agreement, the limitations set forth in Section 9.5 shall not be applicable to claims against a Participating Holder based upon fraud committed by such Participating Holder, and the limitations set forth in Section 9.5(c) shall not be applicable to claims based on Section 9.1(a)(iv) (Taxes).
Limitations on Indemnification. (a) No claim for indemnification in connection with Losses related to Seller’s breach of a representation or warranty contained in this Agreement may be brought or maintained by any Buyer Indemnitee unless and until the aggregate dollar amount of all Losses sought by the Buyer Indemnitees equals or exceeds US$150,000 (the “Buyer Threshold Amount”), in which event Seller shall be responsible for, and shall hold the Buyer Indemnitees harmless from, any and all such Losses in excess of the Buyer Threshold Amount; provided, further, however, that Buyer shall only be entitled to recover the APA Shares (at the average closing price on the TASE thirty days prior to the time of the a final judgment of the Claim or settlement agreement is entered into by the Parties) that were issued pursuant to this Agreement and shall not be entitled to any monetary indemnification in addition to such shares other than as related to Seller’s use of the Assets prior to the Closing for which the indemnification for Losses will be monetary.
(b) No claim for indemnification in connection with Losses related to Buyer’s breach of a representation or warranty contained in this Agreement may be brought or maintained by any Seller Indemnitee unless and until the aggregate dollar amount of all Losses sought by the Seller Indemnitees equals or exceeds US$150,000 (the “Seller Threshold Amount”), in which event Buyer shall be responsible for, and shall hold the Seller Indemnitees harmless from, any and all such Losses in excess of the Seller Threshold Amount.
(c) No Indemnifying Party shall be liable for any portion of a Loss to the extent that a court of competent jurisdiction shall have determined by a final judgment that such Loss or portion thereof resulted primarily and directly from the willful misconduct or bad faith of the any of the Indemnified Parties (as applicable).
(d) The amount of any Loss for which indemnification is provided under Section 6.1 or Section 6.2 shall be net of any amounts actually recovered by the Buyer Indemnitees or the Seller Indemnitees, respectively, under insurance policies with respect to such Loss and shall be (i) reduced (or increased) to take account of any net tax benefit (or cost) realized by the respective Indemnified Parties arising from the incurrence or payment of any such Loss and (ii) increased to take account of any increase in insurance premiums following such insurance recovery.
(e) No Party’s indemnification obligations under Section 6.1 or ...
Limitations on Indemnification a) In respect of all Losses for which Indemnifying Parties are liable hereunder arising out of or resulting from any breach of any of the Fundamental Representations and Warranties, the Indemnifying Parties’ liability shall not exceed in the aggregate an amount equal to US$30,000,000 (thirty million Dollars).
b) In respect of all Losses resulting from Unknown Contingent Liabilities, the Indemnifying Parties’ liability shall not exceed in the aggregate US$15,000,000 (fifteen million Dollars).
c) Except for Losses resulting from the Indemnifying Parties’ breach of any Representation or Warranty referenced in Sections 6.4(a) and (b) hereof, the Indemnifying Parties’ liability to the Indemnified Parties for any Losses resulting from any breach of any Representation or Warranty contained in Section 4 of this Agreement shall in no event exceed US$20,000,000 (twenty million Dollars) in the aggregate.
d) Each of the limitations set forth above in paragraphs (a), (b) and (c) of this Section 6.4 shall in no event apply to Losses for which Indemnifying Parties are liable hereunder arising out of or resulting from (i) any breach of any Representation or Warranty set forth in Sections 3.1, 3.2, 3.4, 3.5, 3.7, 3.8 and 3.9; or (ii) Fraud.
e) Notwithstanding anything to the contrary contained in this Agreement, except in the case of Fraud, no Seller’s liability with respect to any indemnification obligation set forth herein shall exceed an amount equal to the gross portion of the Purchase Price actually received by or on behalf of such Seller for the Purchased Shares, which limitation shall not be construed to increase any of the limitations set forth in paragraphs (a), (b) and (c) above (it being acknowledged and agreed, for the avoidance of doubt, that the “gross portion of the Purchase Price actually received by or on behalf of” FTV III and FTV IIIN shall be US$15,923,831 upon receipt of the same by such Sellers).
Limitations on Indemnification. (a) An indemnifying party shall not have any liability under Section 7.2(a) or Section 7.2(b) unless and until the amount of any individual Loss exceeds $25,000 and the aggregate amount of all Losses incurred by the indemnified parties and indemnifiable thereunder exceeds $150,000 (the “Basket”). In such event, the indemnifying party shall be required to pay the entire amount of all such Losses.
(b) Notwithstanding anything contained herein to the contrary, neither the Selling Members, on the one hand, nor Purchaser, on the other hand, shall be required to indemnify any Person under Section 7.2(a) or 7.2(b) for an aggregate amount of Losses exceeding $3,000,000 (the “Cap”).
(c) the amount of Losses required to be paid pursuant to this Article VII shall be reduced to the extent of any Tax benefits or insurance proceeds directly or indirectly received by or available to the indemnified party;
(d) Notwithstanding anything contained herein to the contrary, in no event shall any Purchaser Indemnified Party be entitled to recover with respect to a breach by the Selling Members of any representation, warranty, covenant, or agreement if the Purchaser Indemnified Parties had Knowledge thereof at or before the Closing.
(e) The Selling Members shall have no right of contribution or other recourse against the Company or its respective officers, employees, Affiliates, agents, attorneys, representatives, assigns or successors for any Third Party Claims asserted by Purchaser Indemnified Parties, it being acknowledged and agreed that the covenants and agreements of the Company are solely for the benefit of the Purchaser Indemnified Parties.
Limitations on Indemnification. (a) No amount shall be payable to an Indemnified Party in satisfaction of any claim for indemnification pursuant to Section 13.1(a) or 13.2(a), as applicable, for which the aggregate amount of Losses of the Indemnified Party arising therefrom, together with all related claims, is less than $50,000; provided, that the limitation set forth in this Section 13.6(a) shall not apply unless and until the aggregate amount of all Losses of the Indemnified Party resulting from, arising out of or relating to breaches of representations and warranties contained in this Agreement exceeds the Deductible Amount.
(b) No claim may be made by an Indemnified Party against an Indemnifying Party for indemnification pursuant to Section 13.1(a) or Section 13.2(a), as applicable, unless and until the Indemnified Party has sustained aggregate Losses for which it is entitled to indemnification pursuant to Section 13.1(a) or Section 13.2(a), as applicable, in excess of $14,000,000 in the aggregate (the “Deductible Amount”) and then only to the extent such aggregate amount exceeds the Deductible Amount, provided, however, that the Deductible Amount shall not apply with respect to any Losses resulting from, arising out of or relating to breaches of the Seller Fundamental Representations or the Buyer Fundamental Representations, and none of such Losses shall count towards the satisfaction of the Deductible Amount. The maximum aggregate recovery of the Indemnified Parties from the Indemnifying Parties pursuant to Section 13.1(a) or Section 13.2(a), as applicable, shall not exceed an amount equal to $140,000,000 the (“Cap”), except with respect to breaches of the Seller Fundamental Representations or Buyer Fundamental Representations, which are subject to Section 13.6(c).
(c) The maximum aggregate liability or recovery of all Buyer Indemnified Parties from all Seller Indemnifying Parties under this Article 13 or otherwise pursuant to this Agreement, including for Fraud, shall not exceed an amount equal to the Final Purchase Price actually received by the Sellers. The maximum aggregate liability or recovery of all Seller Indemnified Parties from all Buyer Indemnifying Parties under this Article 13 or otherwise pursuant to this Agreement, including for Fraud, shall not exceed an amount equal to the Final Purchase Price actually received by the Sellers and the Sellers shall have no indemnification for Losses under this Article 13 by any Indemnified Party if such Liabilities are taken into a...
Limitations on Indemnification. TCI, Newco, the Surviving Corporation and the other persons or entities indemnified pursuant to Section 11.1 or 11.2 shall not assert any claim for indemnification hereunder against the Stockholders until such time as, and solely to the extent that, the aggregate of all claims which such persons may have against such the Stockholders shall exceed the greater of (a) 1.0% of the sum of (i) the cash paid to Stockholders plus (ii) the value of the TCI Stock delivered to Stockholders (calculated as provided in this Section 11.5) or (b) $100,000 (the "Indemnification Threshold"). Except with respect to the right to receive the merger consideration as set forth on Annex I, the Stockholders shall not assert any claim for indemnification hereunder against TCI or Newco until such time as, and solely to the extent that, the aggregate of all claims which the Stockholders may have against TCI or Newco shall exceed the Indemnification Threshold. No person shall be entitled to indemnification under this Section 11 if and to the extent that such person's claim for indemnification is directly or indirectly related to a breach by such person of any representation, warranty, covenant or other agreement set forth in this Agreement. Notwithstanding any other term of this Agreement, no Stockholder shall be liable under this Section 11 for an amount which exceeds the amount of proceeds received by such Stockholder in connection with the Merger. For purposes of calculating the value of the TCI Stock received by a Stockholder, TCI Stock shall be valued at its initial public offering price as set forth in the Registration Statement. It is hereby agreed that a Stockholder shall have the right to satisfy an indemnification obligation through payment of a combination of stock and cash in proportion equal to the proportion of stock and cash received by such Stockholder in connection with the Merger, valued as described immediately above, but shall also have the right to satisfy any such obligation in cash.
Limitations on Indemnification. Any other provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement:
Limitations on Indemnification. (i) Notwithstanding anything to the contrary set forth in this Agreement, nothing set forth in this Article 7 shall limit the liability of (A) any party if the Stock Purchase is not consummated, (B) the Selling Stockholders for any claims or causes of action arising out of fraud or intentional misrepresentation under applicable law by the Companies (or any of their respective agents) (prior to the Effective Time) or the Selling Stockholders (prior to the Effective Time) in connection with this Agreement, any other Company Document or the transactions contemplated hereby and thereby, or (C) the Purchaser for any claims or causes of action arising out of fraud or intentional misrepresentation under applicable law by the Purchaser (or any of its agents) (prior to the Effective Time) in connection with this Agreement, any other Company Document or the transactions contemplated hereby and thereby.
(ii) If the Stock Purchase is consummated, subject to the limitations in this Article 7, including those of Section 7.2(b)(iii) through Section 7.2(b)(v), the total Purchase Price shall be available to compensate the Purchaser Indemnified Parties for any Indemnification Claims made by the Purchaser Indemnified Parties and the Purchaser shall satisfy any indemnification obligations of the Selling Stockholders first from the reduction of any unpaid principal and accrued interest outstanding under the Notes (on a pro-rata basis based upon the Selling Stockholder’s Pro-Rata Portion). In the event that the amount of such indemnification obligations exceeds the amount of unpaid principal and accrued interest outstanding under the Notes, the Selling Stockholders shall satisfy the remaining portion of the indemnification obligation by (at the Selling Stockholders’ option) either (A) paying to Purchaser an amount of cash equal to such remaining portion of the indemnification obligation, or (B) the forfeiture of Purchaser Shares with a value equal to such remaining portion of the indemnified obligation (assuming a price per share for the Purchaser Shares of $3.85).
(iii) If the Stock Purchase is consummated, the Purchaser Indemnified Parties shall not be entitled to recover any Damages from the Selling Stockholders in respect of any Indemnification Claims under or pursuant to Section 7.2(a) in excess of an amount equal to the Maximum Indemnification Amount; provided, however, that notwithstanding the foregoing or anything to the contrary in this Agreement, (A) the preceding res...
