Limitation on Indemnity/Commitments. (i) The indemnification obligation of the indemnifying party with respect to any Breach of any representation or warranty pursuant to Section 10.2(a)(i), (a)(iii) or (b)(i) shall be limited to Claims for Damages made prior to the last date of survival thereof referred to in Section 10.1. The indemnification obligation of the indemnifying party with respect to any Breach of any covenant or agreement pursuant to Section 10.2(a)(ii) or (b)(ii) shall survive indefinitely subject to the terms of this Agreement. (ii) The Seller Indemnified Parties may not recover Damages from the indemnifying party pursuant to Section 10.2(a)(i) and (iii) until the aggregate amount of Damages relating to such Claims for which the Seller Indemnified Parties, in the aggregate, are entitled to indemnification under Section 10.2(a)(i) and (iii) exceeds One Hundred Thousand Dollars ($100,000) (the "Threshold"); provided, however, in the event that the aggregate amount of Damages for which the Seller Indemnified Parties are seeking indemnification under Section 10.2(a)(i) exceeds such amount, the Seller Indemnified Parties may recover the full amount of such Damages; provided, further, however, that the maximum aggregate amount of such Damages for which the Sellers shall be liable shall not exceed an amount equal to the Closing Payment. The Seller Indemnified Parties shall have the right to make a Claim hereunder prior to the time at which the Threshold that is applicable to Claims under Section 10.2(a)(i) and (iii) has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation and any such Claim made within such period shall, to the extent such Threshold ultimately is met, survive until its final resolution. (iii) The Purchaser Indemnified Parties may not recover Damages from the Purchaser pursuant to Section 10.2(b)(i) until the aggregate amount of Damages relating to such Claims for which the Purchaser Indemnified Parties, in the aggregate, are entitled to indemnification under Section 10.2(b)(i) exceeds the Threshold; provided, however, in the event that the aggregate amount of Damages for which the Purchaser Indemnified Parties are seeking indemnification under Section 10.2(b)(i) exceeds such amount, the Purchaser Indemnified Parties may recover the full amount of such Damages; provided, further, however, that the maximum aggregate amount of Damages for which the Purchaser shall be liable pursuant to Section 10.2(b)(i) shall not exceed Two Million Dollars ($2,000,000). The Purchaser Indemnified Parties shall have the right to make a Claim hereunder prior to the time at which the Threshold that is applicable to Claims under Section 10.2(b)(i) has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation and any such Claim made within such period shall, to the extent such Threshold ultimately is met, survive until its final resolution. (iv) Neither (a) the termination of the representations or warranties contained herein, nor (b) the expiration of the indemnification obligations described above, will affect the rights of an indemnified party in respect of any Claim made by such indemnified party received by the Sellers prior to the expiration of the applicable survival period provided herein.
Appears in 1 contract
Sources: Stock Purchase Agreement (Corporate Staffing Resources Inc)
Limitation on Indemnity/Commitments. (i) The indemnification obligation obligations of the indemnifying party Seller with respect to any Breach breach of any representation or warranty pursuant to Section 10.2(a)(i), (a)(iii) or (b)(i7.2(a)(i) shall be limited to Claims for Damages made on or prior to the last date of survival thereof referred to in Section 10.17.1. The indemnification obligation obligations of the indemnifying party Seller with respect to any Breach other bases for indemnification obligations of any covenant or agreement Seller pursuant to clauses (ii), (iii) and (iv) of Section 10.2(a)(ii) or (b)(ii7.2(a) shall survive indefinitely until the expiration of the applicable statutes of limitations, subject to the terms of this Agreement.
(ii) The indemnification obligations of Buyer with respect to any breach of any representation or warranty pursuant to Sections 7.2(b)(i) shall be limited to Claims made on or prior to the last date of survival thereof referred to in Section 7.1. The indemnification obligations of Buyer with respect to any other bases for indemnification obligations of Buyer pursuant to clauses (ii), (iii) and (iv) of Section 7.2(b) shall survive until the expiration of the applicable statutes of limitations, subject to the terms of this Agreement.
(iii) The Seller Indemnified Parties may not recover Damages from the indemnifying party Seller pursuant to Section 10.2(a)(i) and (iii7.2(a)(i) until the aggregate amount of Damages relating to such Claims for which the Seller Indemnified Parties, in the aggregate, are entitled to seeking indemnification under Section 10.2(a)(i) and (iii7.2(a)(i) exceeds One an amount equal to Six Hundred Thousand Dollars ($100,000600,000) (the "“Threshold"”), at which point Seller shall be liable for, and the Seller Indemnified Parties shall be entitled to recover only the Damages in excess of the Threshold; provided, however, that Claims for Damages pursuant to Section 7.2(a)(i) resulting from common law fraud, intentional misrepresentation or a breach of the representations and warranties set forth in Section 3.2 (Authority; No Conflict), Section 3.8 (Taxes), and Section 3.14 (Environmental Matters) shall not be subject to the event that the aggregate amount of Damages for which the Seller Indemnified Parties are seeking indemnification under Section 10.2(a)(i) exceeds such amountThreshold, the Seller Indemnified Parties may recover the full amount of such Damages; provided, further, however, that the maximum aggregate amount of such Damages for which the Sellers and shall be liable shall not exceed an amount equal to recoverable from the Closing Paymentfirst dollar. The Seller Indemnified Parties shall have the right to make a Claim hereunder under Section 7.2(a)(i) prior to the time at which the Threshold that is applicable to Claims under Section 10.2(a)(i) and (iii) has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation and any such Claim made within such period shall, to the extent such the Threshold ultimately is met, survive until its final resolution. This Section 7.2(g)(ii) shall not apply to Claims for indemnification made pursuant to clauses (ii) or (iii) of Section 7.2(a).
(iiiiv) The Purchaser Indemnified Parties may not recover Damages from the Purchaser pursuant to Section 10.2(b)(i) until the aggregate amount of Damages relating that may be recovered by the Seller Indemnified Parties pursuant to such Claims for which the Purchaser Indemnified Parties, in the aggregate, are entitled to indemnification under Section 10.2(b)(i7.2(a)(i) exceeds the Thresholdshall not exceed Fifteen Million Dollars ($15,000,000); provided, however, that this limitation shall not apply to Claims for Damages pursuant to Section 7.2(a)(i) resulting from common law fraud, intentional misrepresentation or a breach of the representations and warranties set forth in Section 3.2 (Authority; No Conflict), Section 3.8 (Taxes), and Section 3.14 (Environmental Matters). This Section 7.2(f)(iii) shall not apply to Claims for indemnification made pursuant to clauses (ii) or (iii) of Section 7.2(a).
(v) For purposes of (x) determining, from and after the event that Closing Date, whether Seller has breached any representation or warranty set forth in Article III hereof and (y) calculating the aggregate amount of Damages for which the Purchaser Indemnified Parties are seeking that is subject to indemnification under Section 10.2(b)(i) exceeds this Agreement in connection with the breach of any such amountrepresentation or warranty, the Purchaser Indemnified Parties may recover determination of such breach and the full calculation of the amount of such Damages; provided, further, however, that Damages (as the maximum aggregate amount of Damages for which the Purchaser case may be) shall be liable pursuant determined without regard to Section 10.2(b)(i) shall not exceed Two Million Dollars ($2,000,000). The Purchaser Indemnified Parties shall have the right to make a Claim hereunder prior to the time at which the Threshold that is applicable to Claims under Section 10.2(b)(i) has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation and any “material,” “Seller Material Adverse Effect,” “Buyer Material Adverse Effect” or like materiality qualifier set forth in any such Claim made within such period shall, to the extent such Threshold ultimately is met, survive until its final resolutionrepresentation or warranty.
(ivvi) Neither (aA) the termination of the representations or warranties contained herein, nor (bB) the expiration of the indemnification obligations described above, will affect the rights of an indemnified party a Person in respect of any Claim made by such indemnified party received by the Sellers Person prior to the expiration of the applicable survival period provided herein.
(vii) To the extent that any Liability that is subject to indemnification under this Agreement is covered by insurance, the amount of any indemnity payment shall be net of the Net Proceeds of any insurance policy paid to the indemnified party with respect to such Liability. For purposes of this Section, “Net Proceeds” shall mean the insurance proceeds actually received, from any insurance source, less any expenses of recovery, deductibles, and/or co-payments. If any amounts are reimbursed under insurance coverage from any insurance source subsequent to indemnification under this Article, the indemnified party shall reimburse the indemnifying party in an amount equal to the amounts subsequently received under insurance coverage (net of the expenses of recovery).
(viii) Notwithstanding anything herein to the contrary, no breach of any representation, warranty, covenant or agreement contained herein will give rise to any right on the part of Buyer or Seller, after the Closing, to rescind this Agreement or any of the transactions contemplated hereby, and any and such rescission rights are hereby waived.
(ix) In addition to the limitations set forth in Section 11.17 and elsewhere in this Agreement, in no event shall an indemnifying party be liable for punitive damages sustained or claimed by an indemnified party except to the extent such damages arise from a third-party Claim. An indemnified party shall use reasonable efforts to mitigate any Damages. Damages shall be determined after taking into account any indemnity, contribution or other similar payment received by the indemnified party from any third-party with respect thereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (HD Partners Acquisition CORP)
Limitation on Indemnity/Commitments. (i) The indemnification obligation of the indemnifying party Company Stockholders and Buyer pursuant to Sections 10.2(a) or (b), respectively, with respect to any Breach of any representation or warranty pursuant to Section 10.2(a)(i), (a)(iii) or (b)(i) shall be limited to Claims for Damages made prior to the last date of survival thereof referred to in Section 10.1. The indemnification obligation of the indemnifying party Company Stockholders and Buyer with respect to any Breach of any covenant or agreement pursuant to Section 10.2(a)(iiSections 10.2(a) or (b)(ii) 10.2(b), respectively, shall survive indefinitely for the applicable statute of limitations, subject to the terms of this Agreement.
(ii) The Seller Indemnified Parties may not recover Damages from the indemnifying party pursuant to Section 10.2(a)(i) and (iii) until the aggregate amount of Damages relating to such Claims for which the Seller Indemnified Parties, in the aggregate, are entitled to indemnification under Section 10.2(a)(i) and (iii) exceeds One Hundred Thousand Dollars ($100,000) (the "Threshold"); provided, however, in the event that the aggregate amount of Damages for which the Seller Indemnified Parties are seeking indemnification under Section 10.2(a)(i) exceeds such amount, the Seller Indemnified Parties may recover the full amount of such Damages; provided, further, however, that the maximum aggregate amount of such Damages for which the Sellers shall be liable shall not exceed an amount equal to the Closing Payment. The Seller Indemnified Parties shall have the right to make a Claim hereunder prior to the time at which the Threshold that is applicable to Claims under Section 10.2(a)(i) and (iii) has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation and any such Claim made within such period shall, to the extent such Threshold ultimately is met, survive until its final resolution.
(iii) The Purchaser Indemnified Parties may not recover Damages from the Purchaser pursuant to Section 10.2(b)(i) until the aggregate amount of Damages relating to such Claims for which the Purchaser Indemnified Parties, in the aggregate, are entitled to indemnification under Section 10.2(b)(i) exceeds the Threshold; provided, however, in the event that the aggregate amount of Damages for which the Purchaser Indemnified Parties are seeking indemnification under Section 10.2(b)(i) exceeds such amount, the Purchaser Indemnified Parties may recover the full amount of such Damages; provided, further, however, that the maximum aggregate amount of Damages for which the Purchaser shall be liable pursuant to Section 10.2(b)(i) shall not exceed Two Million Dollars ($2,000,000). The Purchaser Indemnified Parties shall have the right to make a Claim hereunder prior to the time at which the Threshold that is applicable to Claims under Section 10.2(b)(i) has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation and any such Claim made within such period shall, to the extent such Threshold ultimately is met, survive until its final resolution.
(iv) Neither (a) the termination of the representations or warranties contained herein, nor (b) the expiration of the indemnification obligations described above, will affect the rights of an indemnified party a Person in respect of any Claim made by such indemnified party Person received by the Sellers indemnifying party prior to the expiration of the applicable survival period provided hereinset forth in Section 10.1.
(iii) Notwithstanding any other provision herein to the contrary, neither the Company Stockholders nor Buyer shall be required to indemnify any Person under this Article X in connection with Damages related to the failure to be true and correct of any representations or warranties of the Designated Stockholders and the Company, on the one hand, or Buyer, on the other hand, in Articles V and VI, respectively, (i) until the aggregate amount of Damages sustained, suffered or incurred pursuant by reason of or arising from breaches of such representations and warranties exceeds $35,000 in the aggregate (the "Deductible"), in which case the indemnifying party shall be responsible for all Damages in excess of the Deductible, and (ii) for an aggregate amount of Damages exceeding an amount equal to 40% of the aggregate Merger Consideration actually paid or due and payable by Buyer pursuant to this Agreement (the "Cap"); provided, that there shall be no Deductible or Cap with respect to Damages related to the failure to be true and correct of any of the representations and warranties in Sections 5.2(a), 5.3, 5.10, and 5.26 or 6.4, the matters set forth on Schedule 10.2(a) or for any Damages arising as a result of fraud or willful breach on the part of the indemnifying party.
(iv) For purposes of determining the Breach or failure of any representations or warranties to be true and correct, the Breach of any covenants and agreements, and calculating Damages hereunder, any materiality or Material Adverse Effect qualifications in the representations, warranties, covenants and agreements shall be disregarded.
(v) The indemnity obligations of the Company Stockholders (including the obligation of ▇▇. ▇▇▇▇▇▇▇▇ individually pursuant to Section 10.2(c)) hereunder may be satisfied through payment of cash or forfeiture to Buyer of shares of restricted Buyer Common Stock valued at the Stock Price per share as determined at the election of the Stockholder Representative.
(vi) Following the Closing, except with respect to claims for fraud or willful breach, the rights of the Indemnified Parties under this Article X shall be the sole and exclusive remedy of the Indemnified Parties with respect to claims resulting from or relating to any misrepresentation or any Breach of any representation, warranty, covenant, agreement or other provision of this Agreement, any certificate, instrument, or other document delivered in connection herewith.
Appears in 1 contract
Sources: Merger Agreement (Commerce Planet)
Limitation on Indemnity/Commitments. (i) The indemnification obligation of the indemnifying party with respect to any Breach of any representation or warranty pursuant to Section 10.2(a)(i), (a)(iii) or (b)(i) shall be limited to Claims for Damages made prior to the last date of survival thereof referred to in Section 10.1. The indemnification obligation of the indemnifying party with respect to any Breach of any covenant or agreement pursuant to Section 10.2(a)(ii) or (b)(ii) shall survive indefinitely subject to the terms of this Agreement.
(ii) The Seller Shareholders' Indemnified Parties may not recover Damages from the indemnifying party Shareholders pursuant to Section 10.2(a)(i) and (iii) until the aggregate amount of Damages relating to such Claims for which the Seller Shareholders Indemnified Parties, in the aggregate, are entitled to seeking, or have sought, indemnification under Section 10.2(a)(i) and (iii) exceeds One Hundred Fifty Thousand Dollars ($100,00050,000) (the "Threshold"); provided, however, that in the event that the aggregate amount of Damages for which the Seller Shareholders' Indemnified Parties are seeking seeking, or have sought, indemnification under pursuant to Section 10.2(a)(i) exceeds such amountthe Threshold, the Seller Shareholders' Indemnified Parties may recover the full amount of such Damages; Damages and provided, further, howeverthat (A) Claims for Damages pursuant to Section 10.2(a)(i) resulting from a Breach of the representations and warranties contained in Sections 5.3 or 5.6 and indemnification for Taxes pursuant to Section 10.3, that (B) Claims for Damages pursuant to Section 10.2(a)(ii) resulting from a Breach of any of the maximum aggregate amount of payment obligations contained in Article III, and (C) Claims for Damages pursuant to Section 10.2(a)(vi) (such Damages for which the Sellers shall be liable claims in (A), (B) and (C), "Excluded Claims") shall not exceed an amount equal be subject to the Closing PaymentThreshold. The Seller Shareholders' Indemnified Parties shall have the right to make a Claim hereunder prior to the time at which the Threshold that is applicable to Claims under such Claim has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation and any such Claim made within such period shall, to the extent such Threshold ultimately is met, survive until its final resolution.
(ii) The Parent Indemnified Parties may not recover Damages from the Parent pursuant to Section 10.2(a)(i10.2(b)(i) and (iiiuntil the aggregate amount of Damages for which the Parent Indemnified Parties, in the aggregate, are seeking indemnification pursuant to Section 10.2(b)(i) exceeds the Threshold; provided, however, that in the event the aggregate amount of Damages for which the Parent Indemnified Parties are seeking pursuant to Section 10.2(b)(i) exceeds the Threshold, the Parent Indemnified Parties may recover the full amount of such Damages. The Parent Indemnified Parties shall have the right to make a Claim hereunder prior to the time at which the Threshold that is applicable to such Claim has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation and any such Claim made within such period shall, to the extent such Threshold ultimately is met, survive until its final resolution.
(iii) The Purchaser Indemnified Parties may not recover Notwithstanding anything to the contrary in this Agreement, the liability of the Shareholders for Damages from the Purchaser pursuant to Section 10.2(b)(i10.2(a) until and the aggregate amount liability of the Parent for Damages relating to such Claims for which the Purchaser Indemnified Parties, in the aggregate, are entitled to indemnification under Section 10.2(b)(i) exceeds the Threshold; provided, however, in the event that the aggregate amount of Damages for which the Purchaser Indemnified Parties are seeking indemnification under Section 10.2(b)(i) exceeds such amount, the Purchaser Indemnified Parties may recover the full amount of such Damages; provided, further, however, that the maximum aggregate amount of Damages for which the Purchaser shall be liable pursuant to Section 10.2(b)(i10.2(b) shall not exceed Two Million Dollars ($2,000,000). The Purchaser Indemnified Parties shall have the right to make a Claim hereunder prior aggregate Merger Consideration actually paid to the time at which Shareholders (including any amounts or shares held in escrow); provided that shares of Parent Common Stock included in the Threshold that is applicable Merger Consideration and issued pursuant to Claims under a specific Section 10.2(b)(i) has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation Agreement (including, without limitation, Sections 2.4(b)(i), 2.4(b)(ii), 2.7(a)(i) and any such Claim made within such period shall, 2.7(a)(ii)) shall be valued at an amount equal to the extent number of shares issued pursuant to such Threshold ultimately is met, survive until its final resolution.
(iv) Neither (a) Section multiplied by the termination price per share attributed to such shares pursuant to such Section; and provided further the liability of the representations or warranties contained herein, nor (b) the expiration of the indemnification obligations described above, will affect the rights of an indemnified party Shareholders for Damages in respect of any Claim made by such indemnified party received by the Sellers prior to the expiration of the applicable survival period provided hereinExcluded Claims shall be unlimited.
Appears in 1 contract
Limitation on Indemnity/Commitments. (i) The indemnification obligation of the indemnifying party and the Purchaser with respect to any Breach of any representation or warranty pursuant to Section 10.2(a)(i), (a)(iii) or (b)(i) shall be limited to Claims for Damages made prior to the last date of survival thereof referred to in Section 10.1. The indemnification obligation of the indemnifying party with respect to any Breach of any covenant or agreement pursuant to Section 10.2(a)(ii), (b)(ii) or (b)(iib)(iii) shall survive indefinitely subject to the terms of this Agreement.
(ii) The Except as provided in Section 10.2(e)(iii), the Seller Indemnified Parties may not recover Damages from the indemnifying party pursuant to Section 10.2(a)(i) and (iii) until the aggregate amount of Damages relating to such Claims for which the Seller Indemnified Parties, in the aggregate, are entitled to indemnification under Section 10.2(a)(i) and (iii) exceeds One Hundred Thousand Dollars ($100,000) (the "Threshold"); provided, however, in the event that the aggregate amount of Damages for which the Seller Indemnified Parties are seeking indemnification under Section 10.2(a)(i) exceeds such amount, the Seller Indemnified Parties may recover the full amount of such Damages; provided, further, however, that the maximum aggregate amount of such Damages for which the Sellers shall be liable shall not exceed an amount equal to the Closing PaymentThree Million Dollars ($3,000,000). The Seller Indemnified Parties shall have the right to make a Claim hereunder prior to the time at which the Threshold that is applicable to Claims under Section 10.2(a)(i) and (iii) has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation and any such Claim made within such period shall, to the extent such Threshold ultimately is met, survive until its final resolution.
(iii) The Threshold and maximum damages limitations in Section 10.2(e)(ii) shall not apply to any Damages incurred in connection with, arising out of or resulting from any Breach of any representation or warranty made by the Sellers in Section 5.3, 5.9, 5.11 with respect to ERISA plans, and 5.17.
(iv) The Purchaser Indemnified Parties may not recover Damages from the Purchaser pursuant to Section 10.2(b)(i) until the aggregate amount of Damages relating to such Claims for which the Purchaser Indemnified Parties, in the aggregate, are entitled to indemnification under Section 10.2(b)(i) exceeds the Threshold; provided, however, in the event that the aggregate amount of Damages for which the Purchaser Indemnified Parties are seeking indemnification under Section 10.2(b)(i) exceeds such amount, the Purchaser Indemnified Parties may recover the full amount of such Damages; provided, further, however, that the maximum aggregate amount of Damages for which the Purchaser shall be liable pursuant to Section 10.2(b)(i) shall not exceed Two Million Dollars ($2,000,000). The Purchaser Indemnified Parties shall have the right to make a Claim hereunder prior to the time at which the Threshold that is applicable to Claims under Section 10.2(b)(i) has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation and any such Claim made within such period shall, to the extent such Threshold ultimately is met, survive until its final resolution.
(ivv) Neither (a) the termination of the representations or warranties contained herein, nor (b) the expiration of the indemnification obligations described above, will affect the rights of an indemnified party in respect of any Claim made by such indemnified party received by the Sellers prior to the expiration of the applicable survival period provided herein.
Appears in 1 contract
Sources: Stock Purchase Agreement (Corporate Staffing Resources Inc)
Limitation on Indemnity/Commitments. (i) The indemnification obligation of the indemnifying party Sellers and the Purchaser with respect to any Breach of any representation or warranty pursuant to Section 10.2(a)(i), (a)(iii) or (b)(i) shall be limited to Claims for Damages made prior to the last date of survival thereof referred to in Section 10.1. The indemnification obligation of the indemnifying party Sellers and the Purchaser with respect to any Breach of any covenant or agreement pursuant to Section 10.2(a)(ii) or (b)(ii) shall survive indefinitely subject to the terms of this Agreement.
(ii) The Seller Indemnified Parties may not recover Damages from the indemnifying party Sellers pursuant to Section 10.2(a)(i) and (iiior 10.3(a)(iii) until the aggregate amount of Damages relating to such Claims for which the Seller Indemnified Parties, in the aggregate, are entitled to indemnification under Section 10.2(a)(i) and (iiior 10.3(a)(iii) exceeds One Hundred Thousand Dollars ($100,000) (the "Threshold"); provided, however, in the event that the aggregate amount of Damages for which the Seller Indemnified Parties are seeking indemnification under Section 10.2(a)(i) or 10.3(a)(iii) exceeds such amount, the Seller Indemnified Parties may recover the full amount of such Damages; provided. Except as provided in Section 10.2(e)(iii), further, however, that the maximum aggregate amount of such Damages for which the Sellers shall be liable pursuant to this Section 10.2 shall not exceed an amount equal to the Closing Paymentbe Two Million Dollars ($2,000,000). The Seller Indemnified Parties shall have the right to make a Claim hereunder prior to the time at which the Threshold that is applicable to Claims under Section 10.2(a)(i) and (iii) such Claim has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation and any such Claim made within such period shall, to the extent such Threshold ultimately is met, survive until its final resolution.
(iii) The maximum damages limitations in Section 10.2(f) (ii) shall not apply to any Damages incurred in connection with, arising out of, or resulting from any Breach of any representation or warranty made by the Sellers in Sections 5.3, 5.10, 5.11, 5.12 and 5.18.
(iv) The Purchaser Indemnified Parties may not recover Damages from the Purchaser pursuant to Section 10.2(b)(i) until the aggregate amount of Damages relating to such Claims for which the Purchaser Indemnified Parties, in the aggregate, are entitled to indemnification under Section 10.2(b)(i) exceeds the Threshold; provided, however, in the event that the aggregate amount of Damages for which the Purchaser Indemnified Parties are seeking indemnification under Section 10.2(b)(i) exceeds such amount, the Purchaser Indemnified Parties may recover the full amount of such Damages; provided. Notwithstanding the foregoing, further, however, that the maximum aggregate amount of Damages for which the Purchaser 57 59 shall be liable pursuant to this Section 10.2(b)(i) 10.2 shall not exceed be an amount equal to Two Million Dollars ($2,000,000). The Purchaser Indemnified Parties shall have the right to make a Claim hereunder prior to the time at which the Threshold that is applicable to Claims under Section 10.2(b)(i) such Claim has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation and any such Claim made within such period shall, to the extent such Threshold ultimately is met, survive until its final resolution.
(ivv) Neither (a) the termination of the representations or warranties contained herein, nor (b) the expiration of the indemnification obligations described above, will affect the rights of an indemnified party in respect of any Claim made by such indemnified party received by the Sellers prior to the expiration of the applicable survival period provided herein.
Appears in 1 contract
Sources: Stock Purchase Agreement (Corporate Staffing Resources Inc)
Limitation on Indemnity/Commitments. (i) The indemnification obligation of the indemnifying party parties hereto with respect to any Breach breach of any representation or warranty pursuant to Section 10.2(a)(i), (a)(iiiSections 9.3(a) or (b)(ib) shall be limited to Claims for Damages made prior to the last date of survival thereof referred to in Section 10.19.2. The indemnification obligation of the indemnifying party parties hereto with respect to any Breach breach of any covenant or agreement pursuant to Section 10.2(a)(iiSections 9.3(a) or (b)(iib) shall survive indefinitely subject to the terms of this Agreement.
(ii) The Seller Buyer Indemnified Parties may not recover Damages from the indemnifying party any Seller pursuant to Section 10.2(a)(i) and (iii9.3(a)(i) until the aggregate amount of Damages relating to such Claims for which the Seller Buyer Indemnified Parties, in the aggregate, are entitled to seeking indemnification under Section 10.2(a)(i) and (iii9.3(a)(i) exceeds One Hundred Thousand Dollars two hundred and fifty thousand dollars ($100,000) (the "Threshold"250,000); providedPROVIDED, howeverHOWEVER, in the event that the aggregate amount of Damages for which the Seller Buyer Indemnified Parties are seeking indemnification under Section 10.2(a)(i9.3(a)(i) exceeds such amount, the Buyer Indemnified Parties may recover the full amount of such Damages less two hundred thousand dollars ($200,000) (the "DEDUCTIBLE"). Notwithstanding the foregoing, the maximum amount of Damages for which the Sellers shall be liable pursuant to this Section 9.3 shall be $20,000,000 plus (in the case of payments to the Sellers pursuant to Section 3.1(c)) or minus (in the case of payments to Buyer pursuant to Section 3.1(b)) the amount of any post closing adjustment as set forth in Section 3.1 hereof. The Buyer Indemnified Parties shall have the right to make a Claim hereunder prior to the time at which the Deductible (if any) that is applicable to such Claim has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation, and any such Claim made within such period shall, to the extent such Deductible ultimately is met, survive until its final resolution.
(iii) The Seller Indemnified Parties may not recover Damages from Buyer pursuant to Section 9.3(b)(i) until the aggregate amount of Damages for which the Seller Indemnified Parties, in the aggregate, are seeking indemnification exceeds two hundred and fifty thousand dollars ($250,000); PROVIDED, HOWEVER, in the event that the aggregate amount of Damages for which the Sellers Indemnified Parties, are seeking indemnification under Section 9.3(b)(i) exceeds such amount, the Seller Indemnified Parties may recover the full amount of such Damages; providedDamages less the Deductible. Notwithstanding the foregoing, further, however, that the maximum aggregate amount of such Damages for which the Sellers Buyer shall be liable pursuant to this Section 9.3 shall not exceed be an amount equal to the Closing Payment$10,000,000. The Seller Indemnified Parties shall have the right to make a Claim hereunder prior to the time at which the Threshold Deductible (if any) that is applicable to Claims under Section 10.2(a)(i) and (iii) such Claim has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation obligation, and any such Claim made within such period shall, to the extent such Threshold ultimately is met, survive until its final resolution.
(iii) The Purchaser Indemnified Parties may not recover Damages from the Purchaser pursuant to Section 10.2(b)(i) until the aggregate amount of Damages relating to such Claims for which the Purchaser Indemnified Parties, in the aggregate, are entitled to indemnification under Section 10.2(b)(i) exceeds the Threshold; provided, however, in the event that the aggregate amount of Damages for which the Purchaser Indemnified Parties are seeking indemnification under Section 10.2(b)(i) exceeds such amount, the Purchaser Indemnified Parties may recover the full amount of such Damages; provided, further, however, that the maximum aggregate amount of Damages for which the Purchaser shall be liable pursuant to Section 10.2(b)(i) shall not exceed Two Million Dollars ($2,000,000). The Purchaser Indemnified Parties shall have the right to make a Claim hereunder prior to the time at which the Threshold that is applicable to Claims under Section 10.2(b)(i) has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation and any such Claim made within such period shall, to the extent such Threshold Deductible ultimately is met, survive until its final resolution.
(iv) The Sellers' liability under the indemnification provisions of Section 9.3(a) hereof or otherwise under this Agreement shall be subject to reduction in an amount equal to the value of any (i) net tax benefit (giving effect to the time value of money at a discounting rate of 10%) realized by Buyer (by reason of a tax deduction, basis adjustment, shifting of income, credits and/or deductions or otherwise from one or more fiscal periods to another); (ii) insurance benefit realized by Buyer in connection with the loss or damage suffered by Buyer which forms the basis of the Sellers' liability hereunder and (iii) third party (i.e., non- Seller) indemnified benefit realized by Buyer in connection with the loss or damage suffered by Buyer which forms the basis of Sellers' liability hereunder; PROVIDED, HOWEVER, that Buyer shall have no obligation to pursue any benefits described in clause (iii) above but shall be required to pursue benefits described in clause (ii) above, in each case before making a claim against the Sellers pursuant to the terms of this Section 9.3;
(v) Buyer's liability under the indemnification provisions of Section 9.3(b) hereof or otherwise under this Agreement shall be subject to reduction in an amount equal to the value of any (i) net tax benefit any Seller (giving effect to the time value of money at a discounting rate of 10%) realized (by reason of a tax deduction, basis adjustment, shifting of income, credits and/or deductions or otherwise from one or more fiscal periods to another); (ii) insurance benefit realized by any Seller in connection with the loss or damage suffered by such Seller which forms the basis of Buyer's liability hereunder and (iii) third party (i.e., non- Buyer) indemnified benefit realized by Buyer in connection with the loss or damage suffered by the Sellers which forms the basis of Buyer's liability hereunder; PROVIDED, HOWEVER, that the Sellers shall have no obligation to pursue any benefits described in clause (iii) above but shall be required to pursue benefits described in clause (ii) above, in each case before making a claim against Buyer pursuant to the terms of this Section 9.3;
(vi) Neither (a) the termination of the representations or warranties contained herein, nor (b) the expiration of the indemnification obligations described above, will affect the rights of an indemnified party a Person in respect of any Claim made by such indemnified party Person received by the Sellers indemnifying party prior to the expiration of the applicable survival period provided herein;
(vii) It is specifically understood and agreed that in the event a misrepresentation made herein or pursuant hereto or a breach of any representation, warranty or covenant contained herein is discovered by any party hereto and asserted by it after the Closing, the remedy of such party shall be limited to indemnification as set forth in Section 9.3(a) (in the case of Buyer) and Section 9.3(b) (in the case of the Sellers) hereof (as limited by the provisions set forth in this Section or elsewhere in this Agreement), and such party shall not be entitled to the rescission of this Agreement, nor shall a multiplier be used in the computation of Damages as the amount of a Claim, nor shall such party otherwise be entitled to any consequential damages including, without limitation, lost profits.
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Limitation on Indemnity/Commitments. (i) The indemnification obligation of the indemnifying party Surviving Corporation with respect to any Breach of any representation or warranty pursuant to Section under Sections 10.2(a)(i), (a)(iii) or (b)(iand 10.2(b)(i) hereof shall be limited to Claims for Damages made prior to the last date of survival thereof referred to in Section 10.1. The indemnification obligation of the indemnifying party with respect to any Breach of any covenant or agreement pursuant to Section 10.2(a)(ii) or (b)(ii) shall survive indefinitely subject to the terms of this Agreementthereof.
(ii) The Seller MFSC Indemnified Parties may not recover Damages from the indemnifying party pursuant to seek indemnification under Section 10.2(a)(i) and or (iii) until the aggregate amount of Damages relating to such Claims for which the Seller MFSC Indemnified Parties, in the aggregate, Parties are entitled to seeking indemnification under Section 10.2(a)(i) and (iii) exceeds One Five Hundred Thousand Dollars ($100,000) (the "Threshold"500,000); provided, however, in the event that the aggregate amount of Damages for which the Seller MFSC Indemnified Parties are seeking indemnification under Section 10.2(a)(i) exceeds such amount, the Seller MFSC Indemnified Parties may recover the full amount of such Damages; provided, further, however, that the maximum aggregate amount of such Damages for which the Sellers shall be liable shall not exceed an amount equal to the Closing Payment. The Seller Indemnified Parties shall have the right to make a Claim hereunder prior to the time at which the Threshold that is applicable to Claims under Section 10.2(a)(i) and (iii) has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation and any such Claim made within such period shall, to the extent such Threshold ultimately is met, survive until its final resolution.
(iii) The Purchaser CSR Indemnified Parties may not recover Damages from the Purchaser pursuant to seek indemnification under Section 10.2(b)(i) or (iii) until the aggregate amount of Damages relating to such Claims for which the Purchaser CSR Indemnified Parties, in the aggregate, Parties are entitled to seeking indemnification under Section 10.2(b)(i) exceeds the ThresholdFive Hundred Thousand Dollars ($500,000); provided, however, in the event that the aggregate amount of Damages for which the Purchaser CSR Indemnified Parties are seeking indemnification under Section 10.2(b)(i) exceeds such amount, the Purchaser CSR Indemnified Parties may recover the full amount of such Damages; provided, further, however, that the maximum aggregate amount of Damages for which the Purchaser shall be liable pursuant to Section 10.2(b)(i) shall not exceed Two Million Dollars ($2,000,000). The Purchaser Indemnified Parties shall have the right to make a Claim hereunder prior to the time at which the Threshold that is applicable to Claims under Section 10.2(b)(i) has been surpassed for the purpose of asserting such Claim within the relevant survival period of the applicable indemnification obligation and any such Claim made within such period shall, to the extent such Threshold ultimately is met, survive until its final resolution.
(iv) Neither (a) the termination of the representations or warranties contained herein, nor (b) the expiration of the indemnification obligations described above, will affect the rights of an indemnified party a Person in respect of any Claim made by such indemnified party Person received by the Sellers indemnifying Party prior to the expiration of the applicable survival period provided herein.
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Sources: Merger Agreement (Corporate Staffing Resources Inc)