Liability Limits. Notwithstanding anything to the contrary set forth in this Agreement, Seller’s obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless shall be limited as follows: (a) no amounts of indemnity shall be payable pursuant to Section 9.2(a) unless and until the Buyer Indemnified Parties shall have suffered Buyer Losses in excess of $468,500 (the “Deductible Amount”) in the aggregate, in which case the Buyer Indemnified Parties shall be entitled to recover only Buyer Losses in excess of the Deductible Amount; provided, however, that Buyer Losses arising under Section 9.2(a) to the extent based on (i) Fundamental Representations or (ii) Fraud shall not, in each case, be subject to the Deductible Amount; (b) in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(a) exceed the Cap Amount; provided, that the limitation set forth in this Section 9.6(b) shall not apply to (i) Fraud (it being understood that there shall be no limitation on the liability of Indemnifying Parties directly or indirectly involved in any Fraud) or (ii) the matters referred in Section 9.2(b) through Section 9.2(i); (c) no Losses may be claimed by any Buyer Indemnified Party pursuant to Section 9.2(h) or shall be reimbursable by, Seller, other than Buyer Losses in excess of One Hundred Fifty Thousand Dollars ($150,000) (the “Environmental Threshold Amount”) resulting from a single claim or aggregated claims; (d) in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(h) exceed Two Million Dollars ($2,000,000); (e) notwithstanding anything to the contrary contained in Section 9.2, but subject to the other limitations contained in this Article IX, any liability for indemnification obligations for Buyer Losses under Section 9.2(a) shall be satisfied solely up to the Cap Amount and, in the event that a claim for indemnification is made pursuant to Section 9.2 in excess of the Cap Amount, then such Buyer Losses will remain unsatisfied other than as covered by the R&W Policy and no Buyer Indemnified Party shall be entitled to recover any such shortfalls from Seller; (f) for purposes of computing the aggregate amount of indemnifiable claims against Seller, the amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to be an amount equal to, and any payments by Seller pursuant to Section 9.2 shall be limited to, the amount of such Buyer Losses that remain after deducting therefrom any third party insurance proceeds and any indemnity, contributions or other similar payment payable; (g) the amount of indemnity payable pursuant to Section 9.2 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Final Working Capital Statement; (h) any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article IX shall be required to use commercially reasonable efforts to mitigate such Loss and an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to mitigate following a reasonable request; (i) in any case where a Buyer Indemnified Party recovers from any third party any amount in respect of a matter with respect to which Seller has made indemnification payments to Buyer pursuant to this Agreement, such Buyer Indemnified Party shall promptly pay over to Seller the lesser of the amount so recovered and the aggregate of such indemnification payments;
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth in this Agreement, Seller’s obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless shall be limited as followsherein:
(a) no amounts of indemnity Seller and Shareholder shall only be payable pursuant liable for Purchaser Losses arising hereunder solely to Section 9.2(a) unless and until the Buyer Indemnified Parties shall have suffered Buyer extent that any such Purchaser Losses in excess of $468,500 (the “Deductible Amount”) exceed, in the aggregate, in which case One Hundred Seventy-Five Thousand Dollars ($175,000.00) (the Buyer Indemnified Parties shall be entitled to recover only Buyer Losses in excess of the Deductible "Seller Basket Amount"); provided, however, that Buyer Purchaser Losses arising under or pursuant to Section 9.2(a8.1(d) to the extent based on (i) Fundamental Representations or (ii) Fraud of this Agreement shall not, in each case, not be subject to the Deductible Seller Basket Amount;, nor shall the amount of any such Purchaser Losses be included with other Purchaser Losses in determining whether such Seller Basket Amount has been reached.
(b) The indemnification obligations of the Seller and Shareholder hereunder shall not exceed in no event shall the aggregate amount of indemnity required to be paid by Seller Five Million Dollars ($5,000,000) (the "Seller's Cap Amount"); provided, however, that Purchaser Losses arising under or pursuant to Section 9.2(a8.1(d) exceed the Cap Amount; provided, that the limitation set forth in of this Section 9.6(b) Agreement shall not apply be subject to (i) Fraud (it being understood that the Seller's Cap Amount and there shall be no limitation on the liability indemnification obligations of Indemnifying Parties directly the Seller with respect to Purchaser Losses arising under or indirectly involved in any Fraud) or (ii) the matters referred in Section 9.2(b) through Section 9.2(i);pursuant to such provisions.
(c) no For purposes of the indemnification obligations of the Seller under this Article 8 and the applicable representations and warranties of the Seller and Shareholder set forth in Article 3 hereof (but not for purposes of determining the satisfaction of the conditions set forth in Section 6.2(a) and (b) hereof), a Purchaser Loss or series of related Purchaser Losses may be claimed by any Buyer Indemnified Party pursuant to Section 9.2(h) or shall be reimbursable bydeemed to have a material adverse effect on the assets, Sellerliabilities, other than Buyer results of operations, financial condition, business or prospects of the Business, if such Purchaser Loss or series of related Purchaser Losses in excess of One Hundred Fifty exceeds Five Thousand Dollars ($150,0005,000); provided, however, that for purposes of determining the satisfaction of the Seller Basket Amount under Section 8.5(a), all representations, warranties, covenants, agreements or undertakings referred to in Section 8.1(c) (the “Environmental Threshold Amount”) resulting from a single claim or aggregated claims;
and (d) in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(h) exceed Two Million Dollars ($2,000,000);
(e) notwithstanding anything to the contrary contained in Section 9.2, but subject to the other limitations contained in this Article IX, any liability for indemnification obligations for Buyer Losses under Section 9.2(a) hereof shall be satisfied solely up read so as to exclude therefrom the Cap Amount and, in term "material" (or similar words of like import) and the event that a claim for indemnification is made pursuant to Section 9.2 in excess of the Cap Amount, then such Buyer Losses will remain unsatisfied other than as covered by the R&W Policy and no Buyer Indemnified Party shall be entitled to recover any such shortfalls from Seller;
(f) for purposes of computing the aggregate amount of indemnifiable claims against Seller, the amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to be an amount equal to, and any payments by Seller pursuant to Section 9.2 shall be limited to, the amount of such Buyer Losses that remain after deducting therefrom any third party insurance proceeds and any indemnity, contributions or other similar payment payable;
(g) the amount of indemnity payable pursuant to Section 9.2 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Final Working Capital Statement;
(h) any Indemnified Party that becomes aware of a Loss for which it seeks indemnification effect thereof under this Article IX shall be required to use commercially reasonable efforts to mitigate such Loss and an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to mitigate following a reasonable request;
(i) in any case where a Buyer Indemnified Party recovers from any third party any amount in respect of a matter with respect to which Seller has made indemnification payments to Buyer pursuant to this Agreement, such Buyer Indemnified Party shall promptly pay over to Seller the lesser of the amount so recovered and the aggregate of such indemnification payments;8.
Appears in 1 contract
Sources: Asset Purchase Agreement (Healthcare Recoveries Inc)
Liability Limits. Notwithstanding anything to the contrary set forth in this Agreement, Seller’s obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless shall be limited as followsherein:
(a) no amounts of indemnity IFM shall be payable pursuant liable to Section 9.2(a) unless and until the Buyer Horizon Indemnified Parties and Horizon shall have suffered Buyer Losses in excess of $468,500 (be liable to IFM Indemnified Parties for Damages only to the “Deductible Amount”) extent that any such Damages exceed, in the aggregate, in which case Fifty Thousand Dollars ($50,000.00) (the Buyer Indemnified Parties shall be entitled to recover only Buyer Losses in excess of the Deductible "Basket Amount"); provided, however, that Buyer Losses Damages arising under Section or pursuant to Sections 4.1, 4.2, 4.4, 4.5, 5.1, 5.2, 9.1(a), (b) and (d), and 9.2(a), (b), and (d) shall not be subject to Basket Amount, nor shall the extent based on amount of any such Damages or indemnification be included in determining whether such Basket Amount has been reached.
(ib) Fundamental Representations The indemnification obligations of IFM or Horizon hereunder shall not exceed the Purchase Price (iithe "Cap Amount"); provided, however, that any Damages arising under or pursuant to Sections 4.1, 4.2, 4.4, 4.5, 5.1, 5.2, 9.1(a), (b) Fraud and (d), and 9.2(a), (b), and (d) shall not, in each case, not be subject to the Deductible Amount;
(b) in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(a) exceed the Cap Amount; provided, that the limitation set forth in this Section 9.6(b) shall not apply to (i) Fraud (it being understood that Amount and there shall be no limitation on the liability indemnification obligations of Indemnifying Parties directly IFM or indirectly involved in any Fraud) Horizon with respect to Damages or (ii) the matters referred in Section 9.2(b) through Section 9.2(i);indemnification arising under or pursuant to such Sections.
(c) no Losses may be claimed by any Buyer Indemnified Party pursuant to Section 9.2(h) or Neither Horizon nor IFM shall be reimbursable byliable under this Agreement for any Damages arising out of or relating to the Port Business (as that term is defined in that certain Asset Purchase Agreement by and between IFM and Horizon dated May 19, Seller, other than Buyer Losses in excess of One Hundred Fifty Thousand Dollars ($150,000) 1998 (the “Environmental Threshold Amount”"First 27 Purchase Agreement")) resulting from a single claim or aggregated claims;and the provisions of this Section 9 shall neither extend nor limit the indemnification provided by the First Purchase Agreement.
(d) Neither Horizon nor IFM shall be liable under this Agreement for any Damages arising out of or resulting from any defects in no event shall the aggregate amount of indemnity required or damage or injury to be paid any person caused by Seller any Products manufactured or delivered by IFM to Horizon pursuant to Section 9.2(h) exceed Two Million Dollars ($2,000,000);
(e) notwithstanding anything to the contrary contained in Section 9.2, but subject to the other limitations contained in this Article IX, any liability for indemnification obligations for Buyer Losses under Section 9.2(a) shall be satisfied solely up to the Cap Amount and, in the event that a claim for indemnification is made pursuant to Section 9.2 in excess of the Cap Amount, then such Buyer Losses will remain unsatisfied other than as covered by the R&W Policy and no Buyer Indemnified Party shall be entitled to recover any such shortfalls from Seller;
(f) for purposes of computing the aggregate amount of indemnifiable claims against Seller, the amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to be an amount equal to, and any payments by Seller pursuant to Section 9.2 shall be limited to, the amount of such Buyer Losses that remain after deducting therefrom any third party insurance proceeds and any indemnity, contributions or other similar payment payable;
(g) the amount of indemnity payable pursuant to Section 9.2 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Final Working Capital Statement;
(h) any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article IX shall be required to use commercially reasonable efforts to mitigate such Loss and an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to mitigate following a reasonable request;
(i) in any case where a Buyer Indemnified Party recovers from any third party any amount in respect of a matter with respect to which Seller has made indemnification payments to Buyer pursuant to this Manufacturing Agreement, such Buyer Indemnified Party shall promptly pay over indemnification for such Damages to Seller be as set forth in the lesser of the amount so recovered and the aggregate of such indemnification payments;Manufacturing Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Horizon Medical Products Inc)
Liability Limits. Notwithstanding anything to the contrary set forth in this Agreement, Seller’s obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless shall be limited as followsherein:
(a) no amounts of indemnity The Sellers and Shareholders shall only be payable pursuant liable for Purchaser Losses arising hereunder solely to Section 9.2(a) unless and until the Buyer Indemnified Parties shall have suffered Buyer extent that any such Purchaser Losses in excess of $468,500 (the “Deductible Amount”) exceed, in the aggregate, in which case One Hundred Thousand Dollars ($100,000) (the Buyer Indemnified Parties shall be entitled to recover only Buyer Losses in excess of the Deductible "SAI Basket Amount"); provided, however, that Buyer Purchaser Losses arising under Section 9.2(aor pursuant to Sections 5.8(c) or 8.1 (a), (c) and (d) of this Agreement, arising under or incurred in connection with any of the matters listed on Exhibit 1.10(g) hereto, or arising out of or relating to any of the pending, threatened or other claims identified on Annex 3.9 to the extent based on (i) Fundamental Representations or (ii) Fraud Sellers Disclosure Letter shall not, in each case, not be subject to the Deductible SAI Basket Amount;, nor shall the amount of any such Purchaser Losses be included with other Purchaser Losses in determining whether such SAI Basket Amount has been reached.
(b) The indemnification obligations of the Sellers and Shareholders hereunder shall not exceed in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(aThree Million Dollars ($3,000,000) exceed (the "Sellers' Cap Amount"); provided, however, that Purchaser Losses arising under or pursuant to Sections 5.8(c) or 8.1 (a), (c) and (d) of this Agreement, arising under or incurred in connection with any of the limitation set forth in this Section 9.6(bmatters listed on Exhibit 1.10(g) hereto, or arising out of or relating to any of the pending, threatened or other claims identified on Annex 3.9 to the Sellers Disclosure Letter shall not apply be subject to (i) Fraud (it being understood that the Sellers' Cap Amount and there shall be no limitation on the liability indemnification obligations of Indemnifying Parties directly the Sellers with respect to Purchaser Losses arising under or indirectly involved in any Fraud) or (ii) the matters referred in Section 9.2(b) through Section 9.2(i);pursuant to such provisions.
(c) no For purposes of the indemnification obligations of the Sellers under this Article 8 and the applicable representations and warranties of the Sellers and Shareholders set forth in Article 3 hereof (but not for purposes of determining the satisfaction of the conditions set forth in Section 6.2(a) and (b) hereof), a Purchaser Loss or series of related Purchaser Losses may be claimed by any Buyer Indemnified Party pursuant to Section 9.2(h) or shall be reimbursable by, Seller, other than Buyer deemed to have a Material Adverse Effect on the Business if such Purchaser Loss or series of related Purchaser Losses in excess of One Hundred Fifty exceeds Twenty Thousand Dollars ($150,000) (the “Environmental Threshold Amount”) resulting from a single claim or aggregated claims;
(d) in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(h) exceed Two Million Dollars ($2,000,00020,000);
(e) notwithstanding anything to the contrary contained in Section 9.2; provided, but subject to the other limitations contained in this Article IXhowever, any liability for indemnification obligations for Buyer Losses under Section 9.2(a) shall be satisfied solely up to the Cap Amount and, in the event that a claim for indemnification is made pursuant to Section 9.2 in excess of the Cap Amount, then such Buyer Losses will remain unsatisfied other than as covered by the R&W Policy and no Buyer Indemnified Party shall be entitled to recover any such shortfalls from Seller;
(f) for purposes of computing determining the aggregate amount satisfaction of indemnifiable claims against Sellerthe SAI Basket Amount under Section 8.5(a), the amount of each claim for Buyer Losses by a Buyer Indemnified Party all representations, warranties, covenants, agreements or undertakings referred to in Section 8.1 (b) and (c) hereof shall be deemed read so as to be an amount equal to, exclude therefrom the term "material" (or similar works of like import) and any payments by Seller pursuant to Section 9.2 shall be limited to, the amount of such Buyer Losses that remain after deducting therefrom any third party insurance proceeds and any indemnity, contributions or other similar payment payable;
(g) the amount of indemnity payable pursuant to Section 9.2 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Final Working Capital Statement;
(h) any Indemnified Party that becomes aware of a Loss for which it seeks indemnification effect thereof under this Article IX shall be required to use commercially reasonable efforts to mitigate such Loss and an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to mitigate following a reasonable request;
(i) in any case where a Buyer Indemnified Party recovers from any third party any amount in respect of a matter with respect to which Seller has made indemnification payments to Buyer pursuant to this Agreement, such Buyer Indemnified Party shall promptly pay over to Seller the lesser of the amount so recovered and the aggregate of such indemnification payments;8.
Appears in 1 contract
Sources: Asset Purchase Agreement (Healthcare Recoveries Inc)
Liability Limits. Notwithstanding anything to the contrary set forth in this Agreement, Seller’s obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless shall be limited as followsherein:
(a) no amounts of indemnity Neither any Seller nor any Shareholder shall be payable pursuant liable to Section 9.2(a) unless and Purchaser for Losses arising hereunder until the Buyer Indemnified Parties aggregate of such Losses incurred by Purchaser exceed $500,000 (the “Seller Basket Amount”); and then the Sellers and the Shareholders shall have suffered Buyer be liable for all such Losses (in excess of $468,500 (the “Deductible Amount”) in the aggregate, in which case the Buyer Indemnified Parties shall be entitled to recover only Buyer Losses in excess of the Deductible Amount250,000); provided, however, that Buyer neither Losses arising under or pursuant to Section 9.2(a9.01(a)(iii) nor Losses relating to the extent based on any breach of Sections 2.13(b) or 2.15(d) and (ie) Fundamental Representations or (ii2.25(a) Fraud or any breach of covenant shall not, in each case, be subject to the Deductible Seller Basket Amount;, and the amount of any such Losses shall not be included with other Losses in determining whether the Seller Basket Amount has been reached.
(b) in no event Purchaser shall not be liable to any Seller or Shareholder for any Losses arising hereunder until the aggregate amount of indemnity required to such Losses incurred by such parties exceed $500,000 (the “Purchaser Basket Amount”) and then Purchaser shall be paid by liable for all such Seller Losses (in excess of $250,000); provided, however, that Losses arising under or pursuant to Section 9.2(a1.03 or Section 9.01(b)(iii) exceed of this Agreement or any breach of covenant shall not be subject to the Purchaser Basket Amount, and that the amount of any such Losses shall not be included with other Losses in determining whether the Purchaser Basket Amount has been reached.
(c) Except for Losses based on fraud (with respect to which there will be no limitation), the aggregate indemnification obligation of the Sellers and the Shareholders hereunder shall not exceed, in the aggregate, an amount equal to the Cash Portion of the Purchase Price (the “Seller Cap Amount”); provided, however, that neither Losses arising under or pursuant to Section 9.01(a)(iii) nor Losses relating to any breach of Sections 2.13(b),2.15(d) and (e) or 2.25(a) or any breach of covenant shall be subject to the limitation set forth in this Section 9.6(b) shall not apply to (i) Fraud (it being understood that Seller Cap Amount and there shall be no limitation on the liability indemnification obligations of Indemnifying Parties directly the Sellers and the Shareholders with respect to such Losses. Except for Losses based on fraud (with respect to which there will be no limitation), the indemnification obligation of each Shareholder hereunder shall not exceed the amount set forth opposite such Shareholder’s name below; provided, however, that neither Losses arising under or indirectly involved in any Fraud) or (ii) the matters referred in Section 9.2(b) through Section 9.2(i);
(c) no Losses may be claimed by any Buyer Indemnified Party pursuant to Section 9.2(h9.01(a)(iii) nor Losses relating to any breach of Sections 2.13(b),2.15(d) and (e) or 2.25(a) or any breach of covenant shall be reimbursable by, Seller, other than Buyer Losses in excess subject to such limits and there shall be no limitation on the indemnification obligation of One Hundred Fifty Thousand Dollars ($150,000) (the “Environmental Threshold Amount”) resulting from a single claim or aggregated claims;any Shareholder with respect to such Losses: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $ 5,335,000 ▇▇▇▇▇ ▇▇▇▇ $ 5,335,000 ▇▇▇ ▇▇▇▇▇▇ $ 330,000
(d) Except for Losses based on fraud (with respect to which there will be no limitation), Purchaser’s indemnification obligations hereunder shall not exceed, in no event shall the aggregate aggregate, an amount equal to the Cash Portion of indemnity required to be paid by Seller the Purchase Price (the “Purchaser Cap Amount”); provided, however, that Losses arising under or pursuant to Section 9.2(h9.01(b)(iii) exceed Two Million Dollars ($2,000,000);of this Agreement or any breach of covenant shall not be subject to the Purchaser Cap Amount and there shall be no limitation on the indemnification obligations of the Purchaser with respect to such Losses.
(e) notwithstanding anything Notwithstanding any provision hereof to the contrary contained contrary, it is expressly acknowledged and agreed that the Loss incurred by the Sellers and the Shareholders as a result of any breach of the Purchaser’s representations and warranties set forth in Section 9.2, but subject to the other limitations contained in this Article IX, any liability for indemnification obligations for Buyer Losses under Section 9.2(a) Sections 3.07 through 3.11 above shall be satisfied calculated based solely up to on the Cap Amount and, diminution in the event that a claim for indemnification is made pursuant to Section 9.2 in excess value of the Cap Amount, then Restricted Shares resulting from such Buyer Losses will remain unsatisfied other than as covered by the R&W Policy and no Buyer Indemnified Party shall be entitled to recover any such shortfalls from Seller;
(f) for purposes of computing the aggregate amount of indemnifiable claims against Seller, the amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to be an amount equal tobreach, and any payments by Seller pursuant to Section 9.2 shall be limited to, the amount of such Buyer Losses that remain after deducting therefrom any third party insurance proceeds and any indemnity, contributions or other similar payment payable;
(g) the amount of indemnity payable pursuant to Section 9.2 with respect to any Buyer Loss shall be reduced limited to the extent difference, if a positive amount, between the value of such Buyer Loss is reflected Restricted Shares at $6.50 per share and the actual value of the Restricted Shares on the Final Working Capital Statement;
(h) any Indemnified Party that becomes aware date of a Loss for which it seeks indemnification under this Article IX shall be required to use commercially reasonable efforts to mitigate such Loss and an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to mitigate following a reasonable request;
(i) in any case where a Buyer Indemnified Party recovers from any third party any amount in respect of a matter with respect to which Seller has made indemnification payments to Buyer pursuant to this Agreement, such Buyer Indemnified Party shall promptly pay over to Seller the lesser of the amount so recovered and the aggregate determination of such indemnification payments;Loss.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth in this Agreement, Seller’s obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless shall be limited as followsherein:
(a) no amounts of indemnity Sellers shall only be payable pursuant liable for Purchaser Losses arising hereunder solely to Section 9.2(a) unless and until the Buyer Indemnified Parties shall have suffered Buyer extent that any such Purchaser Losses in excess of $468,500 (the “Deductible Amount”) exceed, in the aggregate, in which case Twenty Thousand Dollars $20,000.00 (the Buyer Indemnified Parties shall be entitled to recover only Buyer Losses in excess of the Deductible "Norfolk Basket Amount"); provided, however, that Buyer Purchaser Losses arising under Section 9.2(aor pursuant to Sections 8.1(a), 8.1(b) to the extent based on (iand 8.1(d) Fundamental Representations or (ii) Fraud of this Agreement shall not, in each case, not be subject to the Deductible Norfolk Basket Amount;, nor shall the amount of any such Purchaser Losses be included with other Purchaser Losses in determining whether such Norfolk Basket Amount has been reached.
(b) Purchaser shall only be liable for Norfolk Losses arising hereunder solely to the extent that any such Norfolk Losses exceed, in no event the aggregate, Twenty Thousand Dollars $20,000.00 (the "Horizon Basket Amount").
(c) The indemnification obligations of the Sellers hereunder shall not exceed in the aggregate amount one-half of indemnity required to be paid by Seller pursuant to Section 9.2(a) exceed the Purchase Price (the "Sellers' Cap Amount"); provided, however, that the limitation set forth in Purchaser Losses arising under or pursuant to Sections 8.1(a), 8.1(b) and 8.1(d) of this Section 9.6(b) Agreement shall not apply be subject to (i) Fraud (it being understood that the Sellers' Cap Amount and there shall be no limitation on the liability indemnification obligations of Indemnifying Parties directly the Sellers with respect to Purchaser Losses arising under or indirectly involved in any Fraud) or (ii) the matters referred in Section 9.2(b) through Section 9.2(i);
(c) no Losses may be claimed by any Buyer Indemnified Party pursuant to Section 9.2(h) or shall be reimbursable by, Seller, other than Buyer Losses in excess of One Hundred Fifty Thousand Dollars ($150,000) (the “Environmental Threshold Amount”) resulting from a single claim or aggregated claims;such provisions.
(d) The Indemnification obligations of the Purchaser hereunder shall not exceed in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(h) exceed Two Million Dollars ($2,000,000);
(e) notwithstanding anything to the contrary contained in Section 9.2, but subject to the other limitations contained in this Article IX, any liability for indemnification obligations for Buyer Losses under Section 9.2(a) shall be satisfied solely up to the Cap Amount and, in the event that a claim for indemnification is made pursuant to Section 9.2 in excess one-half of the Purchase Price (the "Purchaser's Cap Amount, then such Buyer Losses will remain unsatisfied other than as covered by the R&W Policy and no Buyer Indemnified Party shall be entitled to recover any such shortfalls from Seller;
(f) for purposes of computing the aggregate amount of indemnifiable claims against Seller, the amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to be an amount equal to, and any payments by Seller pursuant to Section 9.2 shall be limited to, the amount of such Buyer Losses that remain after deducting therefrom any third party insurance proceeds and any indemnity, contributions or other similar payment payable;
(g) the amount of indemnity payable pursuant to Section 9.2 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Final Working Capital Statement;
(h) any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article IX shall be required to use commercially reasonable efforts to mitigate such Loss and an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to mitigate following a reasonable request;
(i) in any case where a Buyer Indemnified Party recovers from any third party any amount in respect of a matter with respect to which Seller has made indemnification payments to Buyer pursuant to this Agreement, such Buyer Indemnified Party shall promptly pay over to Seller the lesser of the amount so recovered and the aggregate of such indemnification payments;").
Appears in 1 contract
Sources: Asset Purchase Agreement (Horizon Medical Products Inc)
Liability Limits. Notwithstanding anything to the contrary set forth in this Agreement, Seller’s obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless shall be limited as follows:herein,
(a) no amounts of indemnity The Frey ▇▇▇reholders shall only be payable pursuant liable for Purchaser Losses arising hereunder to Section 9.2(a) unless and until the Buyer Indemnified Parties shall have suffered Buyer extent that any such Purchaser Losses in excess of $468,500 (the “Deductible Amount”) exceed, in the aggregate, in which case One Million Dollars ($1,000,000) (the Buyer Indemnified Parties "Shareholder Basket Amount") and such liability shall be entitled to recover only Buyer Losses for amounts which, in the aggregate, are in excess of the Deductible Shareholder Basket Amount; provided, however, that Buyer Purchaser Losses arising under Section 9.2(a) or pursuant to the extent based on (i) Fundamental Representations or (ii) Fraud any Shareholder Surviving Matters shall not, in each case, not be subject to the Deductible AmountShareholder Basket Amount and there shall be no "threshold amount" on the indemnification obligations of the Frey ▇▇▇reholders with respect to such Purchaser Losses;
(b) in no event The Frey ▇▇▇reholders' aggregate liability for all Purchaser Losses shall not exceed One Hundred Million Dollars ($100,000,000) (the aggregate amount of indemnity required to be paid by Seller "Shareholder Maximum Amount") provided, however, that Purchaser Losses arising under or pursuant to Section 9.2(a10.1(v), 10.1(vi) exceed the Cap Amount; provided, that the limitation set forth in this Section 9.6(bor 10.1(vii) shall not apply be subject to (i) Fraud (it being understood that there shall be no limitation on or considered in calculating the liability of Indemnifying Parties directly or indirectly involved in any Fraud) or (ii) the matters referred in Section 9.2(b) through Section 9.2(i)Shareholder Maximum Amount;
(c) no Purchaser Losses may be claimed by any Buyer Indemnified Party arising under or pursuant to Section 9.2(h10.1(i) as a result of a breach or inaccuracy of any representation or warranty contained in Section 4.17 hereof or under or pursuant to Section 10.1(iv) shall be reimbursable bysubject to the following provisions:
(i) In calculating such Purchaser Losses, Seller, other than Buyer such Purchaser Losses in excess shall be net of any reimbursements from governmental entities received by any Waldorf Entity for performing work the cost of which is otherwise included as Purchaser Losses hereunder;
(ii) The first One Million Eight Hundred Fifty Thousand Five Hundred Dollars ($150,0001,850,500) of such Purchaser Losses shall be paid by Purchaser without, any contribution from the Frey Shareholders (the “"Environmental Threshold Amount”Basket");
(iii) resulting from To the extent such Purchaser Losses, in total, exceed One Million, Eight Hundred Fifty Thousand Five Hundred Dollars ($1,850,500) but are equal to or less than Twenty-One Million, Eight Hundred Fifty Thousand Five Hundred Dollars ($21,850,500), such Losses shall be paid one-half by the Frey ▇▇▇reholders and one-half by Purchaser;
(iv) To the extent such Purchaser Losses, in total, exceed Twenty-One Million Eight Hundred Fifty Thousand Five Hundred Dollars ($21,850,500), such Purchaser Losses shall be paid by Purchaser without any contribution by the Frey ▇▇▇reholders;
(v) Except for a single claim claim, if any, under Section 10.1(vii) hereof, the Frey ▇▇▇reholders' maximum liability for Purchaser Losses arising under or aggregated claimspursuant to
Section 10.1 (i) as a result of a breach or inaccuracy of any representation or warranty contained in Section 4.17 hereof or under or pursuant toSection 10.1(iv) shall be Ten Million Dollars ($10,000,000) as provided for in this Section 10.5(c);
(d) in no event The Frey ▇▇▇reholders shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(h) exceed Two Million Dollars ($2,000,000);
(e) notwithstanding anything to the contrary contained in Section 9.2, but subject to the other limitations contained in this Article IX, not have any liability for indemnification obligations for Buyer Losses under Section 9.2(a) shall be satisfied solely up to the Cap Amount and, in the event that a claim for indemnification is made pursuant to Section 9.2 in excess of the Cap Amount, then such Buyer Losses will remain unsatisfied other than as covered by the R&W Policy and no Buyer Indemnified Party shall be entitled to recover any such shortfalls from Seller;
(f) for purposes of computing the aggregate amount of indemnifiable claims against Seller, the amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to be an amount equal to, and any payments by Seller pursuant to Section 9.2 shall be limited to, the amount of such Buyer Losses that remain after deducting therefrom any third party insurance proceeds and any indemnity, contributions or other similar payment payable;
(g) the amount of indemnity payable pursuant to Section 9.2 with respect to any Buyer Loss shall be reduced Purchaser Losses to the extent such Buyer Loss is reflected that any Waldorf Entity actually recovers from Champion International Corporation ("Champion") pursuant to the Purchase and Sale Agreement (the "Champion Agreement"), dated July 5, 1985, among Champion and Waldorf Corporation, based on the Final Working Capital Statement;
(h) any Indemnified Party that becomes aware matters giving rise to such Purchaser Losses. To the extent of a Loss for which it seeks indemnification under this Article IX such recovery, such Purchaser Losses shall not be required considered as Purchaser Losses. Purchaser shall cause Wabash or Waldorf to use commercially reasonable efforts to mitigate seek recovery from Champion for any Purchaser Losses for which, in the opinion of Purchaser's counsel, a Waldorf Entity is reasonably likely to be entitled to recovery under the Champion Agreement. If Purchaser does not seek recovery from Champion under the Champion Agreement with respect to any Purchaser Losses for which the Frey ▇▇▇reholders have paid Purchaser, the Frey ▇▇▇reholders shall be subrogated to any right of Purchaser or the Waldorf Entities to seek recovery from Champion under the Champion Agreement with respect to such Loss Purchaser Losses. To the extent that any Waldorf Entity recovers from the Frey ▇▇▇reholders for any Purchaser Losses and Purchaser thereafter receives a payment for such Purchaser Losses from Champion with respect to such Purchaser Losses, Purchaser shall refund an Indemnifying Party amount equal to such payment for such Purchaser Losses to the Frey ▇▇▇reholders;
(e) It is understood that the purchase price payable hereunder has been determined, in part, based upon the past earnings of the Waldorf Entities as reflected in the Financial Statements (the "Reported Earnings"). If the Reported Earnings were in fact overstated above the actual earnings of the Waldorf Entities, it is understood that, subject to the terms of this Section 10, Purchaser might otherwise have a claim under Section 10.1 for either or both of (i) for the amount of assets which are not otherwise owned by the Waldorf Entities (thus, for example, if the Reported Earnings for the year ended June 30, 1996 were $10 million and the actual earnings were $9 million, Purchaser might have a claim for $1 million to reflect the shortfall in earnings) and (ii) for some multiple of the shortfall in earnings to reflect a diminution in value of the Waldorf Entities (where value was determined, in part, as a multiple of Reported Earnings) (a claim based upon a multiple of earnings being hereinafter referred to as a "Earnings Multiple Claim"). The parties agree that, with the exception of a claim under or pursuant to Section 10.1 (vii), Purchaser Losses shall not be liable for deemed to include an Earnings Multiple Claim; and
(f) In calculating Purchaser Losses arising under or pursuant to Section 10.1(i) as a result of a breach or inaccuracy of any Loss representation or warranty contained in Section 4.12 hereof, such Purchaser Losses shall be net of any Tax refunds received by the Waldorf Entities after the Closing Date with respect to taxable periods ended on or before the extent that it is attributable to the Indemnified Party’s failure to mitigate following a reasonable request;
Closing Date, excluding (i) in any case where a Buyer Indemnified Party recovers Tax refunds which are treated as assets of the Waldorf Entities (or which reduce the amount of any liability for Taxes) on the Financial Statements and (ii) any Tax refunds attributable to or resulting from any third party any amount in respect of a matter with respect the Canada Sale or the payment to which Seller has made indemnification payments to Buyer GECC pursuant to this the GECC Agreement, such Buyer Indemnified Party shall promptly pay over to Seller as modified by the lesser of the amount so recovered and the aggregate of such indemnification payments;Waldorf Settlement Document.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth in this Agreement, Seller’s obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless shall be limited as follows:
(a) no amounts of indemnity Sellers shall only be payable pursuant to Section 9.2(a) unless and until the Buyer Indemnified Parties shall have suffered liable for Buyer Losses in excess of $468,500 (arising under this Agreement solely to the “Deductible Amount”) extent that any such Buyer Losses exceed, in the aggregate, in which case U.S. $30,000 (the Buyer Indemnified Parties shall be entitled to recover only Buyer Losses in excess of the Deductible "Seller Basket Amount"); provided, however, that Buyer Losses arising under or pursuant to paragraph 7.2(a)(i) of this Agreement shall not be subject to the Seller Basket Amount to the extent that they relate to Sellers' breach of their representations and warranties in Section 9.2(a2.4 or 3.3 of the Agreement.
(b) Buyer shall only be liable for Seller Losses arising under this Agreement solely to the extent that any such Seller Losses exceed, in the aggregate, U.S. $30,000 (the "Buyer Basket Amount").
(c) The indemnification obligations of each Management Seller under this Agreement shall not exceed in the aggregate an amount (the "General Seller's Cap Amount") equal to the sum of (i) the value, as of the Closing, of the Harbinger Shares issued to such Seller pursuant to this Agreement plus (ii) such Management Seller's Allocation Percentage (as defined in Section 7.2(a) hereof) multiplied by U.S. $310,350; provided, however, that Buyer Losses arising under or pursuant to Section 7.2(a)(i) to the extent based on (i) Fundamental Representations that they relate to Management Seller's breach of its representations and warranties in Section 2.4 of this Agreement or (ii) Fraud arising from Management Seller's fraudulent conduct shall not, in each case, not be subject to the Deductible Amount;
(b) in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(a) exceed the General Seller's Cap Amount; provided, that the limitation set forth in this Section 9.6(b) shall not apply to (i) Fraud (it being understood that Amount and there shall be no limitation on the liability indemnification obligations of Indemnifying Parties directly or indirectly involved in any Fraud) or (ii) the matters referred in Section 9.2(b) through Section 9.2(i);
(c) no Losses may be claimed by any Buyer Indemnified Party pursuant Management Seller with respect to Section 9.2(h) or shall be reimbursable by, Seller, other than Buyer Losses in excess of One Hundred Fifty Thousand Dollars ($150,000) (the “Environmental Threshold Amount”) resulting from a single claim or aggregated claims;arising thereunder.
(d) Buyer's indemnification obligations under this Agreement shall not exceed in no event shall the aggregate an amount equal to the value, as of indemnity required the Closing, of the Harbinger Shares issued to be paid by Seller the Sellers pursuant to Section 9.2(h) exceed Two Million Dollars this Agreement ($2,000,000the "Buyer Cap Amount");.
(e) notwithstanding anything to the contrary contained in Section 9.2, but subject to the other limitations contained in this Article IX, any liability for indemnification obligations for Once Buyer Losses under Section 9.2(a) shall be satisfied solely up to exceed the Cap Seller Basket Amount and, in or Seller Losses exceed the event that a claim for indemnification is made pursuant to Section 9.2 in excess of the Cap Buyer Basket Amount, then such Buyer Losses will remain unsatisfied other than as covered by the R&W Policy and no Buyer Indemnified Party shall be case may be, a breach for which a party is entitled to recover any such shortfalls from Seller;
(f) for purposes of computing the aggregate amount of indemnifiable claims against Seller, the amount of each claim for Buyer Losses by a Buyer Indemnified Party seek indemnification hereunder shall be deemed to be an amount equal to, and any payments by Seller pursuant to Section 9.2 shall be limited to, occur upon the amount initial Buyer Loss or series of such related Buyer Losses that remain after deducting therefrom any third party insurance proceeds and any indemnity, contributions or other similar payment payable;
(g) the amount Seller Loss or series of indemnity payable pursuant to Section 9.2 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Final Working Capital Statement;
(h) any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article IX shall be required to use commercially reasonable efforts to mitigate such Loss and an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to mitigate following a reasonable request;
(i) in any case where a Buyer Indemnified Party recovers from any third party any amount in respect of a matter with respect to which related Seller has made indemnification payments to Buyer pursuant to this Agreement, such Buyer Indemnified Party shall promptly pay over to Seller the lesser of the amount so recovered and the aggregate of such indemnification payments;losses.
Appears in 1 contract
Liability Limits. (a) Notwithstanding anything to the contrary set forth in this Agreement, Seller’s obligation to indemnify, defend and hold the Buyer Purchaser Indemnified Parties harmless shall be limited as follows:
(a) no amounts of indemnity shall be payable pursuant to Section 9.2(a) not make a claim against the Shareholder for indemnification under this Article XI for Purchaser Losses unless and until the Buyer Indemnified Parties shall have suffered Buyer aggregate amount of Purchaser Losses in excess of exceeds $468,500 3.75 million (the “Deductible Amount”"Purchaser Basket"), and in any event only to the extent each individual Purchaser Loss or group of related individual Purchaser Losses which arise out of the same event or occurrence exceeds $50,000 (or, if the event or occurrence giving rise to such Purchaser Loss occurs after the date hereof and on or before the Closing Date, $100,000) in (the aggregate"Loss Threshold"), in which case event the Buyer Purchaser Indemnified Parties may claim indemnification for all such Purchaser Losses to the extent such Purchaser Losses exceed $1.5 million (the "Purchaser Deductible"); provided, however, (i) the Surviving Obligations, the Additional Surviving Obligations and the Surviving Representations shall not be subject to the Purchaser Basket, the Loss Threshold or the Purchaser Deductible, (ii) the first $5 million of Special Losses shall not be subject to any of the liability limits in this Section 11.5(a) (including, for the avoidance of doubt, the Purchaser Basket, the Loss Threshold, the Purchaser Deductible and the Purchaser Cap) and indemnification for the first $5 million of Special Losses shall not be counted for purposes of determining whether the Purchaser Cap has been exceeded and (iii) Special Losses exceeding $5 million (and only to the extent such Special Losses exceed $5 million) shall be entitled counted for purposes of determining whether the Purchaser Cap has been exceeded (but, for the avoidance of doubt, shall not be subject to recover only Buyer Losses in excess the Purchaser Basket, the Loss Threshold or the Purchaser Deductible). The total aggregate amount of liability of the Deductible AmountShareholder for Purchaser Losses shall be limited to $25 million (the "Purchaser Cap"); provided, however, that Buyer the Surviving Obligations (other than Special Losses arising under Section 9.2(a) to in excess of $5 million), the extent based on (i) Fundamental Additional Surviving Obligations and the Surviving Representations or (ii) Fraud shall not, in each case, not be subject to the Deductible Amount;
(b) in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(a) exceed the Cap Amount; provided, that the limitation set forth in this Section 9.6(b) shall not apply to (i) Fraud (it being understood that there shall be no limitation on the liability of Indemnifying Parties directly or indirectly involved in any Fraud) or (ii) the matters referred in Section 9.2(b) through Section 9.2(i);
(c) no Losses may be claimed by any Buyer Indemnified Party pursuant to Section 9.2(h) or shall be reimbursable by, Seller, other than Buyer Losses in excess of One Hundred Fifty Thousand Dollars ($150,000) (the “Environmental Threshold Amount”) resulting from a single claim or aggregated claims;
(d) in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(h) exceed Two Million Dollars ($2,000,000);
(e) notwithstanding anything to the contrary contained in Section 9.2, but subject to the other limitations contained in this Article IX, any liability for indemnification obligations for Buyer Losses under Section 9.2(a) shall be satisfied solely up to the Cap Amount and, in the event that a claim for indemnification is made pursuant to Section 9.2 in excess of the Cap Amount, then such Buyer Losses will remain unsatisfied other than as covered by the R&W Policy and no Buyer Indemnified Party shall be entitled to recover any such shortfalls from Seller;
(f) for purposes of computing the aggregate amount of indemnifiable claims against Seller, the amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to be an amount equal to, and any payments by Seller pursuant to Section 9.2 shall be limited to, the amount of such Buyer Losses that remain after deducting therefrom any third party insurance proceeds and any indemnity, contributions or other similar payment payable;
(g) the amount of indemnity payable pursuant to Section 9.2 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Final Working Capital Statement;
(h) any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article IX shall be required to use commercially reasonable efforts to mitigate such Loss and an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to mitigate following a reasonable request;
(i) in any case where a Buyer Indemnified Party recovers from any third party any amount in respect of a matter with respect to which Seller has made indemnification payments to Buyer pursuant to this Agreement, such Buyer Indemnified Party shall promptly pay over to Seller the lesser of the amount so recovered and the aggregate of such indemnification payments;Purchaser Cap.
Appears in 1 contract
Sources: Stock Purchase Agreement (CNF Inc)
Liability Limits. Notwithstanding anything to the contrary set forth in this Agreement, Seller’s obligation to indemnify, defend and hold the Buyer Indemnified Parties harmless shall be limited as follows:
(a) no amounts of indemnity shall be payable pursuant to Section 9.2(a) unless and until the Buyer Indemnified Parties shall have suffered Buyer Losses in excess of $468,500 (the “Deductible Amount”) in the aggregate, in which case the Buyer Indemnified Parties shall be entitled to recover only Buyer Losses in excess of the Deductible Amount; provided, however, that Buyer Losses arising under Section 9.2(a) to the extent based on (i) Fundamental Representations or (ii) Fraud shall not, in each case, be subject to the Deductible Amount;
(b) in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(a) exceed the Cap Amount; provided, that the limitation set forth in this Section 9.6(b) shall not apply to (i) Fraud (it being understood that there shall be no limitation on the liability of Indemnifying Parties directly or indirectly involved in any Fraud) or (ii) the matters referred in Section 9.2(b) through Section 9.2(i);
(c) no Losses may be claimed by any Buyer Indemnified Party pursuant to Section 9.2(h) or shall be reimbursable by, Seller, other than Buyer Losses in excess of One Hundred Fifty Thousand Dollars ($150,000) (the “Environmental Threshold Amount”) resulting from a single claim or aggregated claims;
(d) in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(h) exceed Two Million Dollars ($2,000,000);
(e) notwithstanding anything to the contrary contained in Section 9.2, but subject to the other limitations contained in this Article IX, any liability for indemnification obligations for Buyer Losses under Section 9.2(a) shall be satisfied solely up to the Cap Amount and, in the event that a claim for indemnification is made pursuant to Section 9.2 in excess of the Cap Amount, then such Buyer Losses will remain unsatisfied other than as covered by the R&W Policy and no Buyer Indemnified Party shall be entitled to recover any such shortfalls from Seller;
(f) for purposes of computing the aggregate amount of indemnifiable claims against Seller, the amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to be an amount equal to, and any payments by Seller pursuant to Section 9.2 shall be limited to, the amount of such Buyer Losses that remain after deducting therefrom any third party insurance proceeds and any indemnity, contributions or other similar payment payable;
(g) the amount of indemnity payable pursuant to Section 9.2 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Final Working Capital Statement;
(h) any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article IX shall be required to use commercially reasonable efforts to mitigate such Loss and an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to mitigate following a reasonable request;
(i) in any case where a Buyer Indemnified Party recovers from any third party any amount in respect of a matter with respect to which Seller has made indemnification payments to Buyer pursuant to this Agreement, such Buyer Indemnified Party shall promptly pay over to Seller the lesser of the amount so recovered and the aggregate of such indemnification payments;
Appears in 1 contract
Liability Limits. (a) Notwithstanding anything to the contrary set forth in this Agreement, Seller’s obligation to indemnify, defend and hold the Buyer Purchaser Indemnified Parties harmless shall be limited as follows:
(a) no amounts of indemnity shall be payable pursuant to Section 9.2(a) not make a claim against the Sellers for indemnification under this Article XI for Purchaser Losses unless and until the Buyer Indemnified Parties shall have suffered Buyer aggregate amount of such Purchaser Losses in excess of exceeds $468,500 500,000 (the “Deductible Threshold Amount”) in the aggregate), in which case event the Buyer Purchaser Indemnified Parties shall be entitled to may recover only Buyer the amount of such Purchaser Losses in excess of the Deductible Threshold Amount; provided, however, that Buyer Losses arising under Section 9.2(a) claims with respect to the extent based on Seller Fundamental Representations, the Seller Fundamental Obligations, Section 5.14 (iTax Returns; Taxes), Section 5.22 (Transactions with Affiliates) Fundamental Representations or and Section 7.13 (iiTax Matters) Fraud shall not, in each case, not be subject to the Deductible Amount;limitations set forth in this Section 11.5(a).
(b) Notwithstanding anything to the contrary set forth in this Agreement, the Seller Indemnified Parties shall not make a claim against Purchaser for indemnification under this Article XI for Seller Losses unless and until the aggregate amount of such Seller Losses exceeds the Threshold Amount, provided, however, that claims with respect to the Purchaser Fundamental Representations and the Purchaser Fundamental Obligations shall not be subject to the limitations set forth in this Section 11.5(b).
(c) The Sellers shall not be required to pay an aggregate amount in excess of $8,000,000 in respect of Purchaser Losses; provided, however, that claims with respect to the Seller Fundamental Representations, the Seller Fundamental Obligations, Section 5.14 (Tax Returns; Taxes), Section 5.22 (Transactions with Affiliates) and Section 7.13 (Tax Matters) shall not be subject to such limitation; provided, further, that in no event shall the Sellers be required to pay an aggregate amount in excess of indemnity the Purchase Price, as adjusted pursuant to this Agreement (the “Cap”), under this Article XI in respect of Purchaser Losses.
(d) Purchaser shall not be required to be paid by pay an aggregate amount in excess of $8,000,000 in respect of Seller pursuant to Section 9.2(a) exceed the Cap AmountLosses; provided, however, that claims with respect to the limitation set forth in this Section 9.6(b) Purchaser Fundamental Representations and the Purchaser Fundamental Obligations shall not apply be subject to such limitation; provided, further, that in no event shall Purchaser be required to pay an aggregate amount in excess of the Cap under this Article XI in respect of Seller Losses.
(e) The amount which an Indemnifying Party is or may be required to pay to an Indemnified Party in respect of Purchaser Losses or Seller Losses, as applicable, for which indemnification is provided under this Agreement will be reduced by any amounts actually received (including amounts received under insurance policies) by or on behalf of the Indemnified Party from third parties, in respect of such Purchaser Losses or Seller Losses, as applicable, (such amounts are referred to herein as “Indemnity Reduction Amounts”). If any Indemnified Party receives any Indemnity Reduction Amounts in respect of an any claim for which indemnification is provided under this Agreement after the full amount of such claim has been paid by an Indemnifying Party or after an Indemnifying Party has made a partial payment of such claim and such Indemnity Reduction Amounts exceed the remaining unpaid balance of such claim, then the Indemnified Party will promptly remit to the Indemnifying Party an amount equal to the excess (if any) of (i) Fraud (it being understood that there shall be no limitation on the liability amount theretofore paid by the Indemnifying Party in respect of Indemnifying Parties directly or indirectly involved in any Fraud) or such claim, less (ii) the matters referred amount of the indemnity payment that would have been due if such Indemnity Reduction Amounts in respect thereof had been received before the indemnity payment was made. An insurer or other third party who would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof or have any subrogation rights with respect thereto. It is expressly understood and agreed that no insurer or any other third party shall be entitled to any benefit they would not be entitled to receive in the absence of the indemnification provisions by virtue of the indemnification provisions hereof. To mitigate the amount of Purchaser Losses or Seller Losses, as applicable, for which indemnification is provided under this Agreement, each Party will use commercially reasonable efforts to obtain any and all amounts recoverable under insurance policies which would reduce a claim for indemnification; provided, however, that, except as provided in Section 9.2(b) through Section 9.2(i11.5(f);, neither Purchaser nor the Sellers shall be required to first pursue such insurance policies prior to pursuing any of Purchaser’s or the Sellers’ respective other rights or remedies.
(cf) In connection with any Purchaser Losses for which any Purchaser Indemnified Party is entitled to indemnification pursuant to Section 11.1(h), the Purchaser Indemnified Party shall use commercially reasonable efforts to obtain any and all amounts recoverable under the Product Liabilities Policy or any replacement policy in respect thereof prior to seeking satisfaction of any such indemnification obligations directly from the Sellers, and no Losses may amount shall be claimed recovered by any Buyer a Purchaser Indemnified Party pursuant to Section 9.2(h11.1(h) unless and until the earliest of (i) the date on which such Purchaser Indemnified Party has been denied insurance coverage under the Product Liabilities Policy or shall be reimbursable byany replacement policy in respect thereof, Seller, other than Buyer Losses in excess of One Hundred Fifty Thousand Dollars ($150,000ii) (the “Environmental Threshold Amount”) resulting from a single claim or aggregated claims;
(d) in no event shall date on which such Purchaser Indemnified Party has exhausted the aggregate applicable coverage amount of indemnity required to be paid by Seller pursuant to Section 9.2(h) exceed Two Million Dollars ($2,000,000);
(e) notwithstanding anything to the contrary contained in Section 9.2, but subject to the other limitations contained in this Article IX, any liability for indemnification obligations for Buyer such Purchaser Losses under Section 9.2(athe Product Liabilities Policy or any replacement policy in respect thereof or (iii) shall be satisfied solely up to the Cap Amount and, in the event date that a is six (6) months after which such Purchaser Indemnified Party initiates its claim for indemnification insurance coverage under the Product Liabilities Policy or any replacement policy in respect thereof, if such Purchaser Indemnified Party has theretofore used commercially reasonable efforts to obtain any and all amounts recoverable under the Product Liabilities Policy or such replacement policy but has not as of such date obtained pursuant thereto the full amount to which such Purchaser Indemnified Party is made pursuant to Section 9.2 entitled in excess respect of the Cap Amountsuch claim, then it being understood that any such Buyer Losses will remain unsatisfied other than as covered by the R&W Policy and no Buyer Purchaser Indemnified Party shall be entitled to recover any give the putative Indemnifying Party notice of such shortfalls from Seller;
(f) for purposes of computing the aggregate amount of indemnifiable claims against Seller, the amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to be an amount equal to, and any payments by Seller indemnity pursuant to Section 9.2 shall be limited to11.1(h) at any time on or after it initiates a claim for insurance coverage under the Product Liabilities Policy or any replacement policy in respect thereof. Notwithstanding such denial, exhaustion or other failure to obtain coverage, the amount of such Buyer Losses that remain after deducting therefrom any third party insurance proceeds and any indemnity, contributions or other similar payment payable;
(g) the amount of indemnity payable pursuant to Section 9.2 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Final Working Capital Statement;
(h) any applicable Purchaser Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article IX shall be required to use commercially reasonable efforts to mitigate seek coverage under Product Liabilities Policy or any replacement policy in respect thereof and to seek recovery from the insurer thereunder in the event such Loss coverage is reinstated. Any such recovery under Product Liabilities Policy or any replacement policy in respect thereof shall be treated in accordance with the provisions of Section 11.5(e) above.
(g) The amount of Purchaser Losses or Seller Losses, as applicable, for which indemnification is provided under this Agreement will be reduced (or subject to partial repayment) to take account of any permanent, net Tax benefit actually realized by the Indemnified Party in cash, cash equivalents or the reduction in any amount then payable, arising from the incurrence or payment of any such Purchaser Losses or Seller Losses, as applicable (determined (i) after taking into account any Tax detriment arising from the receipt of the indemnification payment hereunder and (ii) only taking into account the indemnification payments hereunder after any and all other items of income, gain, loss deduction or credit of the Indemnified Party, and any applicable Affiliates).
(h) Notwithstanding anything to the contrary set forth in Section 11.1, the Sellers will not have any obligation to indemnify any Purchaser Indemnified Party with respect to any matter if the Purchaser Losses arise from a change in the accounting or Tax policies or practices of the Company or its Subsidiaries after the Closing Date, unless such change was required to be made in order to comply with GAAP or applicable Tax Law, in each case, in effect as of the date of this Agreement.
(i) Notwithstanding anything to the contrary set forth in Section 11.1 or Section 11.2, no Party will be entitled to recovery under Section 11.1 or Section 11.2 for Purchaser Losses or Seller Losses, as applicable, to the extent speculative, remote or not reasonably foreseeable (it being understood that any Purchaser Losses or Seller Losses required to be paid by an Indemnified Party to a third party that is not an Affiliate of Guarantor shall be deemed reasonably foreseeable for purposes hereof), and in no event shall Purchaser Losses or Seller Losses, as applicable, include punitive or exemplary damages, except to the extent required to be paid to a third party that is not an Affiliate of Guarantor ; provided, however, that in no event shall any Purchaser Indemnified Party be entitled to recovery under Section 11.1 for Purchaser Losses (i) resulting from any claim against Guarantor by any one or more of its shareholders, in its or their capacity as such (including derivative claims brought by such shareholder(s) in the name of Guarantor), notwithstanding whether such claim is characterized as a third-party claim, or (ii) in respect of a diminution in the stock price of Guarantor (it being understood that neither (i) nor (ii) shall prohibit a Party from recovery under Section 11.1 for Purchaser Losses resulting from the underlying cause of, or the facts, circumstances or occurrences giving rise or contributing to, any such claim against, or diminution in the stock price of, Guarantor); provided, further, that if an Indemnifying Party shall not have been properly notified of a claim for indemnity under Section 11.1 prior to the one (1) year anniversary of the Closing Date, in no event shall any Purchaser Indemnified Party be entitled to recovery under Section 11.1 for Purchaser Losses in respect of such claim to the extent determined (or increased) based on any diminution in value based on any multiple of any financial measure (including earnings, sales or other benchmarks) that might have been used by Purchaser in its valuation of the Company and its Subsidiaries or the Business.
(j) The Sellers shall be jointly and severally liable for any Loss Purchaser Losses up to the amount of the Indemnity Holdback and any Purchaser Indemnified Party shall initially seek satisfaction of any such joint and several indemnification obligations from the Indemnity Holdback. If the Indemnity Holdback has been released or exhausted, (i) the Sellers shall thereafter be jointly and severally liable for any Purchaser Losses arising under Section 11.1(b), Section 11.1(d), Section 11.1(f), Section 11.1(g), Section 11.1(h), Section 11.1(i), Section 11.1(j), Section 11.1(k), Section 11.1(l), Section 11.1(m), Section 11.1(n) or Section 7.13 and (ii) each Seller shall thereafter be severally liable for any Purchaser Losses arising under Section 11.1(a), Section 11.1(c) or Section 11.1(e), but in no event shall the aggregate amount of Purchaser Losses recoverable from any Seller by the Purchaser Indemnified Parties pursuant to this Article XI exceed the portion of the Purchase Price received by such Seller (including the portion of the Indemnity Holdback attributable to such Seller). In addition, in no event shall a Purchaser Indemnified Party be entitled to indemnification pursuant to Sections 11.1(l), 11.1(m), or 11.1(n) to the extent that it such Purchaser Indemnified Party is attributable indemnified for such amounts pursuant to the Indemnified Party’s failure to mitigate following a reasonable request;Section 10.1 of any Minority Purchase Agreement.
(ik) in Any Purchaser Losses for which any case where a Buyer Purchaser Indemnified Party recovers from any third party any amount in respect is entitled to indemnification under this Article XI shall be determined without duplication of a matter with respect to which Seller has made indemnification payments to Buyer pursuant to this Agreement, such Buyer Indemnified Party shall promptly pay over to Seller the lesser recovery by reason of the amount so recovered state of facts giving rise to such Purchaser Losses constituting a breach of more than one representation and the aggregate warranty or covenant.
(l) The indemnification limitations set forth in Section 11.5 shall not apply to any claims arising out of such indemnification payments;or relating to intentional breach, fraud or willful misconduct.
Appears in 1 contract
Sources: LLC Interest Purchase Agreement (Vitamin Shoppe, Inc.)
Liability Limits. Notwithstanding anything to the contrary set ---------------- forth in this Agreementherein, Seller’s obligation to indemnify, defend and hold the Buyer Purchaser Indemnified Parties harmless shall be limited as follows:
(anot make a claim against MSAI or the Seller for indemnification under Section 10.01(d) no amounts of indemnity shall be payable pursuant to Section 9.2(a) for Purchaser Losses unless and until the Buyer aggregate amount of such Purchaser Losses exceeds One-Hundred Fifty Thousand Dollars ($150,000.00) (the "Purchaser Basket"), in ---------------- which event the Purchaser Indemnified Parties shall have suffered Buyer Losses in excess of may claim indemnification for all Purchaser Losses, including the initial $468,500 (the “Deductible Amount”) in the aggregate, in which case the Buyer Indemnified Parties shall be entitled to recover only Buyer Losses in excess of the Deductible Amount150,000.00; provided, however, that Buyer Losses arising under Section 9.2(a) to the extent based on (i) Fundamental -------- ------- the Surviving Representations or (ii) Fraud shall not, in each case, not be subject to the Deductible Amount;
Purchaser Basket, and (bii) for purposes of calculating the Purchaser Basket, the dollar value of any breaches of any representation or warranty shall be calculated without reference to any materiality or adverse effect qualifier or exception set forth in no event shall the such representation or warranty. The total aggregate amount of indemnity required to be paid by the liability of the Company and the Seller for Purchaser Losses with respect any claims made pursuant to Section 9.2(a) exceed the Cap Amount; provided, that the limitation set forth in this Section 9.6(b10.01(d) shall not apply be limited to (i) Fraud (it being understood that there shall be no limitation on the liability of Indemnifying Parties directly or indirectly involved in any Fraud) or (ii) the matters referred in Section 9.2(b) through Section 9.2(i);
(c) no Losses may be claimed by any Buyer Indemnified Party pursuant an amount equal to Section 9.2(h) or shall be reimbursable by, Seller, other than Buyer Losses in excess of One Hundred Fifty Four Million Fifty-Thousand Dollars ($150,0004,050,000) (the “Environmental Threshold Amount”) resulting from a single claim or aggregated claims;
(d) in no event shall "Purchaser Cap"): provided, however, ------------- -------- ------- that the total aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(h) exceed Two Million Dollars ($2,000,000);
(e) notwithstanding anything to the contrary contained in Section 9.2, but subject to the other limitations contained in this Article IX, any liability for indemnification obligations for Buyer Losses under Section 9.2(a) shall be satisfied solely up to the Cap Amount and, in the event that a claim for indemnification is made pursuant to Section 9.2 in excess of the Cap AmountCompany and the Seller for Purchaser Losses arising out of fraud, then such Buyer Losses will remain unsatisfied other than as covered by the R&W Policy and no Buyer Indemnified Party shall be entitled to recover any such shortfalls from Seller;
(f) for purposes willful misconduct or a violation of computing the aggregate amount of indemnifiable claims against Seller, the amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to be an amount equal to, and any payments by Seller pursuant to Section 9.2 shall be limited to, the amount of such Buyer Losses that remain after deducting therefrom any third party insurance proceeds and any indemnity, contributions applicable securities or other similar payment payable;
(g) the amount of indemnity payable pursuant to Section 9.2 with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected on the Final Working Capital Statement;
(h) any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article IX shall be required to use commercially reasonable efforts to mitigate such Loss and an Indemnifying Party laws shall not be liable subject to any limits. In addition, the aggregate liability of Purchaser and Parent to all Seller Indemnified Parties for any Loss Seller Losses associated with any breach or failure by Purchaser or Parent to the extent that it is attributable to the Indemnified Party’s failure to mitigate following a reasonable request;
(i) in any case where a Buyer Indemnified Party recovers from any third party any amount in respect perform under Section 6.12 of a matter with respect to which Seller has made indemnification payments to Buyer pursuant to this Agreement, such Buyer Indemnified Party or arising from any inability of Seller to sell the Issued Securities in the public market, shall promptly pay over to Seller the lesser of the amount so recovered and the aggregate of such indemnification payments;not exceed $500,000.
Appears in 1 contract
Liability Limits. Notwithstanding anything to the contrary set forth in this Agreement, Seller’s obligation to indemnify, defend and hold herein: Neither Corporation nor the Buyer Indemnified Parties harmless Shareholder shall be limited as follows:
liable to Purchaser for Losses arising hereunder until the aggregate of such Losses incurred by Purchaser exceed $75,000 (a) no amounts of indemnity the "Seller Basket Amount"); and then Corporation and the Shareholder shall be payable pursuant to Section 9.2(a) unless and until liable for all such Losses (not just the Buyer Indemnified Parties shall have suffered Buyer Losses amount in excess of $468,500 (the “Deductible Amount”) in the aggregate, in which case the Buyer Indemnified Parties shall be entitled to recover only Buyer Losses in excess of the Deductible Amount75,000); provided, however, that Buyer Losses arising under or pursuant to Section 9.2(a) 9.01(a)(ii), Losses relating to the extent any breach of Section 2.02 and Losses based on (i) Fundamental Representations or (ii) Fraud fraud shall not, in each case, not be subject to the Deductible Seller Basket Amount;
(b) , and the amount of any such Losses shall not be included with other Losses in no event determining whether the Seller Basket Amount has been reached. Purchaser shall not be liable to Seller for any Losses arising hereunder until the aggregate amount of indemnity required to be paid such Losses incurred by Seller exceed $75,000 (the "Purchaser Basket Amount") and then Purchaser shall be liable for all such Seller Losses (not just the amount in excess of $75,000); provided, however, that Losses arising under or pursuant to Section 9.2(a9.01(b)(ii) exceed of this Agreement and Losses based on fraud shall not be subject to the Purchaser Basket Amount, and that the amount of any such Losses shall not be included with other Losses in determining whether the Purchaser Basket Amount has been reached. Except for Losses based on fraud (with respect to which there will be no limitation), the aggregate indemnification obligation of Corporation and the Shareholder hereunder shall not exceed, in the aggregate, an amount equal to the Purchase Price (the "Seller Cap Amount"); provided, however, that the limitation set forth in this neither Losses arising under or pursuant to Section 9.6(b9.01(a)(ii) nor Losses relating to any breach of Sections 2.02, 2.11, or 2.14(d)-(j) shall not apply be subject to (i) Fraud (it being understood that the Seller Cap Amount and there shall be no limitation on the liability of Indemnifying Parties directly or indirectly involved in any Fraud) or (ii) the matters referred in Section 9.2(b) through Section 9.2(i);
(c) no Losses may be claimed by any Buyer Indemnified Party pursuant to Section 9.2(h) or shall be reimbursable by, Seller, other than Buyer Losses in excess of One Hundred Fifty Thousand Dollars ($150,000) (the “Environmental Threshold Amount”) resulting from a single claim or aggregated claims;
(d) in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(h) exceed Two Million Dollars ($2,000,000);
(e) notwithstanding anything to the contrary contained in Section 9.2, but subject to the other limitations contained in this Article IX, any liability for indemnification obligations for Buyer Losses under Section 9.2(a) shall be satisfied solely up to of Corporation and the Cap Amount and, in the event that a claim for indemnification is made pursuant to Section 9.2 in excess of the Cap Amount, then such Buyer Losses will remain unsatisfied other than as covered by the R&W Policy and no Buyer Indemnified Party shall be entitled to recover any such shortfalls from Seller;
(f) for purposes of computing the aggregate amount of indemnifiable claims against Seller, the amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to be an amount equal to, and any payments by Seller pursuant to Section 9.2 shall be limited to, the amount of such Buyer Losses that remain after deducting therefrom any third party insurance proceeds and any indemnity, contributions or other similar payment payable;
(g) the amount of indemnity payable pursuant to Section 9.2 Shareholder with respect to any Buyer Loss shall be reduced to the extent such Buyer Loss is reflected Losses. Except for Losses based on the Final Working Capital Statement;
fraud (h) any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article IX shall be required to use commercially reasonable efforts to mitigate such Loss and an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to mitigate following a reasonable request;
(i) in any case where a Buyer Indemnified Party recovers from any third party any amount in respect of a matter with respect to which Seller has made there will be no limitation), Purchaser's indemnification payments obligations hereunder shall not exceed, in the aggregate, an amount equal to Buyer the Purchase Price (the "Purchaser Cap Amount"); provided, however, that Losses arising under or pursuant to Section 9.01(b)(ii) of this Agreement shall not be subject to the Purchaser Cap Amount and there shall be no limitation on the indemnification obligations of Purchaser with respect to Losses arising under or pursuant to such provision. Escrow Agreement. As security for the indemnification obligations of Seller hereunder, such Buyer Indemnified Party shall promptly pay over the Escrowed Amount will be placed in escrow with the Escrow Agent pursuant to Seller the lesser terms of the amount so recovered and the aggregate of such indemnification payments;Escrow Agreement.
Appears in 1 contract
Liability Limits. (a) The Seller shall not have any indemnification obligations for Purchaser Losses with respect to claims made pursuant to Section 7.1(a) or Section 7.1(b) in respect to each individual item, or group of items arising out of the same event unless the aggregate amount of all such Purchaser Losses exceed Fifty Thousand Dollars ($50,000), and once such amount is exceeded Purchaser may recover all Purchaser Losses, including the initial Fifty Thousand Dollars ($50,000) of Purchaser Losses, and the total aggregate liability of the Seller for Purchaser Losses with respect to any claims made pursuant to Section 7.1(a) or Section 7.1(b) shall be limited to the Cap Amount. Notwithstanding the foregoing, the limitations set forth in this Section 7.5(a) shall not apply to any Purchaser Losses arising out of or related to (i) fraud, intentional misrepresentation or intentional breach, (ii) claims made pursuant to Section 7.1(c), Section 7.1(d) or Section 7.1(e), or (ii) a breach of any Fundamental Representation, and the Seller shall be liable for all Purchaser Losses with respect thereto; provided, however, the total aggregate liability of the Seller for such Purchaser Losses shall be limited to the Aggregate Cap Amount. All payments made by the Seller for Purchaser Losses with respect to claims made pursuant to Section 7.1(a) or Section 7.1(b) under this Agreement shall be made exclusively by reduction, forfeiture or return, as the case may be, of the Closing Shares and/or any shares of Parent Common Stock paid or payable to the Seller in connection with any Earnout Payment and by reduction of the amount payable to the Seller under any Note, in each case in proportion to the amounts payable pursuant to the Closing Shares and/or any shares of Parent Common Stock actually paid to the Seller in connection with any Earnout Payment, on the one hand, and the amount payable to the Seller under any Note, on the other hand. The set-off against the Closing Shares and/or shares of Parent Common Stock and against the amounts payable to the Seller under any Note as provided for in the immediately preceding sentence shall constitute the Purchaser’s sole and exclusive remedy against the Seller under this Agreement and pursuant to this Section 7 with respect to claims made pursuant to Section 7.1(a) or Section 7.1(b). If any such set-off is made, the value assigned to the Closing Shares or other shares of Parent Common Stock, as the case may be, shall be the average per share closing price of Parent Common Stock as reported in The Wall Street Journal for each of the thirty (30) consecutive trading days ending with the third trading day immediately preceding the date such Closing Shares and/or shares of Parent Common Stock are used to set-off any amount or right it may be entitled to pursuant to this Section 7.
(b) The total aggregate liability of the Purchaser for Seller Losses with respect to any claims made pursuant to Section 7.2 shall be limited to the Cap Amount. Notwithstanding the foregoing, the limitations set forth in this Section 7.5(b) shall not apply to any Seller Losses arising out of or related to fraud, intentional misrepresentation or intentional breach.
(c) Notwithstanding the foregoing or anything to the contrary set forth in this Section 7 or otherwise in this Agreement, Seller’s obligation to indemnify, defend the Purchaser hereby acknowledges and hold agrees that no stockholder of the Buyer Indemnified Parties harmless Seller shall be limited liable for, and neither the Purchaser, the Parent nor any of their Affiliates shall seek from any stockholder of the Seller, an amount of Purchaser Losses greater than such stockholders’ pro rata share of any Purchaser Losses that exceed the Cap Amount and, irrespective of the foregoing, no stockholder of the Seller shall be liable for, and neither the Purchaser, the Parent nor any of their Affiliates shall seek from any stockholder of the Seller, under any circumstances whatsoever, any Purchaser Losses that exceed the portion of the Purchase Price actually received by such stockholder in connection with this Agreement and the consummation of the transactions contemplated hereby. All payments of any Purchaser Losses made by any stockholder of the Seller shall be made in the same form of consideration actually received by such stockholder and in the same proportions as follows:
actually received by such stockholder; provided that, (ai) no if any stockholder of Seller sells any shares of Parent Common Stock held by such stockholder for cash and (ii) all of the other shares of Parent Common Stock held by such stockholder have been used by such stockholder to pay for Purchaser Losses, the remaining payments of any Purchaser Losses made by such stockholder, if any, shall be made in cash and by forfeiture of the amount actually paid to the stockholder under any Note in proportion to the amounts actually paid to the stockholder in shares of indemnity Parent Common Stock, on the one hand, and actually paid to the stockholder under any Note, on the other hand; and, provided further, that the amount of cash that shall be payable pursuant by such stockholder in accordance with this Section 7.5(c) with respect to the shares of Parent Common Stock sold by such stockholder shall not exceed the lesser of (X) the value of such shares of Parent Common Stock as of the date set forth at the end of Section 9.2(a7.5(a), or (Y) unless and until the Buyer Indemnified Parties amount of cash actually received by such stockholder in connection with such stockholder’s sale(s) of such shares of Parent Common Stock (i.e., net of any taxes, fees or other costs related to such sale(s)). For purposes of this Agreement, a stockholder’s “pro rata share” shall have suffered Buyer Losses in excess equal the percentage determined by dividing the portion of $468,500 (the “Deductible Amount”) Purchase Price actually received by such stockholder by the total Purchase Price, in the aggregate, in which case the Buyer Indemnified Parties shall be entitled to recover only Buyer Losses in excess actually received by all of the Deductible Amount; provided, however, that Buyer Losses arising under Section 9.2(astockholders of the Company (including all Earnout Payments).
(d) If the Seller distributes any portion of the Purchase Price to the extent based on any of its stockholders (i) Fundamental Representations or (ii) Fraud shall notany such distribution, in each case, be subject a “ Distribution”), the Seller shall, within ten (10) days following each Distribution, send written notice to the Deductible Amount;
(b) in no event shall Purchaser setting forth the aggregate amount details of indemnity required to be paid by Seller pursuant to Section 9.2(a) exceed such Distribution, including the Cap Amount; provided, that the limitation set forth in this Section 9.6(b) shall not apply to (i) Fraud (it being understood that there shall be no limitation on the liability of Indemnifying Parties directly or indirectly involved in any Fraud) or (ii) the matters referred in Section 9.2(b) through Section 9.2(i);
(c) no Losses may be claimed by any Buyer Indemnified Party pursuant to Section 9.2(h) or shall be reimbursable by, Seller, other than Buyer Losses in excess of One Hundred Fifty Thousand Dollars ($150,000) (the “Environmental Threshold Amount”) resulting from a single claim or aggregated claims;
(d) in no event shall the aggregate amount of indemnity required to be paid by Seller pursuant to Section 9.2(h) exceed Two Million Dollars ($2,000,000);
(e) notwithstanding anything to the contrary contained in Section 9.2, but subject to the other limitations contained in this Article IX, any liability for indemnification obligations for Buyer Losses under Section 9.2(a) shall be satisfied solely up to the Cap Amount and, in the event that a claim for indemnification is made pursuant to Section 9.2 in excess identity of the Cap Amount, then such Buyer Losses will remain unsatisfied other than as covered by the R&W Policy and no Buyer Indemnified Party shall be entitled to recover any such shortfalls from Seller;
(f) for purposes of computing the aggregate amount of indemnifiable claims against Sellerstockholder, the amount of each claim for Buyer Losses by a Buyer Indemnified Party shall be deemed to be an amount equal to, the Distribution and any payments by Seller pursuant to Section 9.2 shall be limited to, the amount form of such Buyer Losses that remain after deducting therefrom any third party insurance proceeds and any indemnity, contributions or other similar payment payable;
(g) the amount of indemnity payable pursuant to Section 9.2 with respect to any Buyer Loss shall be reduced consideration distributed to the extent such Buyer Loss is reflected on stockholder in connection with the Final Working Capital Statement;
(h) any Indemnified Party that becomes aware of a Loss for which it seeks indemnification under this Article IX shall be required to use commercially reasonable efforts to mitigate such Loss and an Indemnifying Party shall not be liable for any Loss to the extent that it is attributable to the Indemnified Party’s failure to mitigate following a reasonable request;
(i) in any case where a Buyer Indemnified Party recovers from any third party any amount in respect of a matter with respect to which Seller has made indemnification payments to Buyer pursuant to this Agreement, such Buyer Indemnified Party shall promptly pay over to Seller the lesser of the amount so recovered and the aggregate of such indemnification payments;Distribution.
Appears in 1 contract