STOCK PURCHASE AGREEMENT Dated as of August 17, 2011 by and among CREE, INC., as the Buyer, ALL OF THE SHAREHOLDERS OF RUUD LIGHTING, INC., as the Sellers, CHRISTOPHER A. RUUD, as the Seller Representative, and the SUSAN B. RUUD STOVER LIVING TRUST

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

    The Stock Purchase Agreement contains representations and warranties by the parties thereto. A party’s representations and warranties were made solely for the benefit of the other party or parties and (i) were not intended to be treated as categorical statements of fact, but rather as a way of allocating the risk to the party or parties making the representation and warranty if it proves to be inaccurate; (ii) may have been qualified in the Stock Purchase Agreement by disclosures that were made to the other party or parties in connection with the negotiation of the Stock Purchase Agreement (provided that any specific facts that contradict the representations and warranties in the Stock Purchase Agreement in any material respect have been disclosed); (iii) may apply contract standards of “materiality” that are different from “materiality” under the applicable securities laws; and (iv) were made only as of the date of the Stock Purchase Agreement or such other date or dates as may be specified in the Stock Purchase Agreement.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

circumstances causing such failure shall be taken into account in determining whether a Material Adverse Effect has occurred); and (v) the announcement, execution, performance or consummation of this Agreement or the transactions contemplated by this Agreement; provided further that, in the case of clauses (i) and (ii), such changes or effects thereof are only exceptions to the extent they do not have a disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, and their businesses relative to their industry peers.

 

 

 

 

 

 

 

 

 

 

 

 

restrictions or limitations on the use of real property which, in each case, do not detract from the value of, or impair the use of, such property by the Company Group in the operation of their businesses; (c) Encumbrances for current Taxes, assessments or charges or levies of any Governmental or Regulatory Authority on property not yet due and delinquent or that are being contested in good faith; (d) statutory encumbrances, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s liens and other similar liens arising in the Ordinary Course of Business for amounts that are not yet due and delinquent or that are being contested in good faith; and (e) pledges or deposits to secure obligations under workers’ compensation, unemployment insurance or similar Laws.

 

 

 

 

 

 

 

 

 

surface water, groundwater, land surface or subsurface strata or within any building, structure, facility or fixture) which, individually or in the aggregate, would constitute a violation of any Environmental Law or Environmental Permit or would reasonably be expected to result in an Environmental Claim.

 

 

 

 

 

 

 

 

 

 

 

 

with the Closing in accordance with the terms of this Agreement or any other Transaction Document.

 

 

Terms	Reference in Agreement
Accounts Receivable	Section 3.8(a)
Agreement	Preamble
Audited Balance Sheets	Section 3.6
Audited Financial Statements	Section 3.6
Basket	Section 6.4(b)
Buyer	Preamble
Buyer Core Representations	Section 6.5(c)
Buyer Indemnified Persons	Section 6.2
Buyer SEC Reports	Section 4.4(a)
Buyer Welfare Plans	Section 5.8(b)
Charitable Transferee	Section 5.7(b)
Class A Stock	Section 3.3(a)
Class B Stock	Section 3.3(a)

 

 

Terms	Reference in Agreement
Closing	Section 2.3
Closing Cash Consideration	Section 2.2
Closing Share Consideration	Section 2.2
Closing Consideration	Section 2.2
Closing Date	Section 2.3
Company	Preamble
Company Audited Balance Sheet	Section 3.6
Company Audited Balance Sheet Date	Section 3.6
Company Audited Financial Statements	Section 3.6
Company Employee	Section 5.8(a)
Company Estimated Working Capital	Section 2.4(c)(ii)
Company Financial Statements	Section 3.6
Company Indemnified Party	Section 5.9(a)
Company Interim Balance Sheet	Section 3.6
Company Interim Financial Statements	Section 3.6
Company Sites	Section 3.14(l)
Company Stock	Section 3.3(a)
Current Insurance	Section 5.9(b)
Damages	Section 6.2
De Minimis Amount	Section 6.4(a)
E-conolight Audited Balance Sheet	Section 3.6
E-conolight Audited Balance Sheet Date	Section 3.6
E-conolight Audited Financial Statements	Section 3.6
E-conolight Estimated Working Capital	Section 2.4(c)(ii)
E-conolight Financial Statements	Section 3.6
E-conolight Interim Balance Sheet	Section 3.6
E-conolight Interim Financial Statements	Section 3.6
Escrow Agent	Section 2.3(b)(vii)
Escrow Agreement	Section 2.3(a)(v)
Escrow Funds	Section 2.3(b)(iv)
Escrow Release Date	Section 2.5(b)
Estimated E-conolight Re-acquisition Price	Section 2.3(a)(viii)
Final Balance Sheets	Section 2.4(a)
Final Calculation Statement	Section 2.4(a)
Final Cash Consideration	Section 2.2
Financial Statements	Section 3.6
Indemnified Person	Section 6.7(a)
Indemnifying Person	Section 6.7(a)
Initial Resolution Period	Section 2.4(b)(i)
Interim Balance Sheets	Section 3.6
Interim Financial Statements	Section 3.6
Material Contracts	Section 3.13(a)
Non-compete Agreements	Section 2.3(a)(vi)

 

 

 

 

Terms	Reference in Agreement
NPL List	Section 3.15(c)
Objection Notice	Section 2.4(b)(i)
Objection Period	Section 2.4(b)(i)
Offer Letters	Section 2.3(a)(iv)
Offer Packages	Section 2.3(a)(iv)
Pre-Closing Tax Period	Section 6.2(c)
Pre-Closing Taxes	Section 6.2(c)
Proposed Balance Sheets	Section 2.4(a)
Proposed Calculation Statement	Section 2.4(a)
Purchase Price	Section 2.2
Purchase Price Adjustment	Section 2.4(c)
Related Person Transactions	Section 3.26
Reporting Tail Endorsement	Section 5.9(b)
SEC	Section 4.4(a)
Section 338(h)(10) Election	Section 5.3(a)
Seller Core Representations	Section 6.4(c)
Seller Indemnified Persons	Section 6.3
Seller Inventions	Section 5.6
Seller Representative	Section 2.6(a)
Seller Surviving Representations	Section 6.4(d)
Sellers	Preamble
Share Consideration	Section 2.2
Shares	Section 3.3(a)
SOX	Section 4.4(a)
Special Litigation Retention	Section 2.5(b)
Straddle Period	Section 5.3(c)
Supplemental Escrow Retention	Section 2.5(b)
Support Agreements	Section 3.20(c)
Surviving Representation Retention	Section 2.5(b)
Third-Party Claim	Section 6.7(a)
Transfer	Section 5.7(a)
Transfer Restrictions	Section 5.7(b)

 

 

 

 

 

 

 

issue to the Sellers in the aggregate 6,074,833 shares of Buyer Common Stock (the “Closing Share Consideration” and, together with the Closing Cash Consideration, the “Closing Consideration”). The Closing Cash Consideration and, as applicable, the Closing Share Consideration shall be adjusted following the Closing by any Purchase Price Adjustment determined pursuant to Section 2.4 below (as so adjusted, the “Cash Consideration” and the “Share Consideration,” respectively, and, collectively, the “Purchase Price”).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Transaction Documents, as applicable, and (B) attaching the certificate of existence of the Buyer from the State of North Carolina dated as of a date within five (5) Business Days of the Closing Date;

 

 

 

 

 

 

 

 

 

 

 

 

 

conolight LLC) balance sheets of the Company and E-conolight LLC as of immediately prior to the Closing (the “Proposed Balance Sheets” and, in their final and binding form after resolution of any disputes pursuant to Section 2.4(b), the “Final Balance Sheets”).  Accompanying the Proposed Balance Sheets, the Buyer shall prepare and deliver a statement (the “Proposed Calculation Statement” and, in its final and binding form after resolution of any disputes pursuant to Section 2.4(b), the “Final Calculation Statement”) setting forth the Buyer’s determination in accordance with this Agreement of the E-conolight Re-acquisition Price, the Company Closing Working Capital, the E-conolight Closing Working Capital, and the resulting calculation of the Purchase Price Adjustment.  Notwithstanding anything herein to the contrary, Buyer’s determination of the Company Closing Working Capital and the E-conolight Closing Working Capital shall be calculated on a basis and in a manner consistent with the manner of preparation of the Audited Financial Statements and the Estimated Working Capital Statement (except where the notes to the Estimated Working Capital Statement require different treatment in the determination of Company Closing Working Capital or E-conolight Closing Working Capital, as applicable) and the determination of the Company Estimated Working Capital and the E-conolight Estimated Working Capital and in accordance with the accounting principles, methodologies, procedures and assumptions set forth on and used in preparing the Audited Financial Statements and the Estimated Working Capital Statement.

 

 

 

 

 

 

shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits.  For example, if the Seller Representative challenges the calculation of the Purchase Price Adjustment in the Proposed Balance Sheets and in the Proposed Calculation Statement by an amount of $100,000, but the Accounting Firm determines that the Seller Representative has a valid claim for only $40,000 (i.e., the Seller Representative prevails as to 40% of its claim), the Buyer shall bear 40% of the fees and expenses of the Accounting Firm and the Seller Representative (on behalf of the Sellers) shall bear the other 60% of such fees and expenses.  The Buyer and the Seller Representative shall use commercially reasonable efforts to cause the Accounting Firm to determine (and written notice thereof shall be given to the Seller Representative and the Buyer) as promptly as practicable, but in any event within thirty (30) days following the date on which the Proposed Balance Sheets and the Proposed Calculation Statement are delivered to the Accounting Firm, based on written submissions detailing the disputed items and forwarded to it and such other evidence (including live testimony) as the Accounting Firm requests or allows, only with respect to the disputed items submitted to the Accounting Firm, whether and to what extent (if any) the Proposed Balance Sheets, the Proposed Calculation Statement, the adjustments and/or the resulting calculation of the Purchase Price Adjustment require adjustment in order to be in compliance with this Agreement and a written explanation in reasonable detail of each such required adjustment, including the basis therefor.  All negotiations pursuant to this Section 2.4(b) shall be treated as compromise and settlement negotiations for purposes of Rule 408 of the Federal Rules of Evidence and comparable state rules of evidence, and all negotiations, submissions to the Accounting Firm, and proceedings under this Section 2.4(b) shall be treated as confidential information.  The Accounting Firm shall be bound by a mutually agreeable confidentiality agreement and in connection with the engagement of the Accounting Firm the Buyer and the Seller Representative shall supply such documents and information as the Accounting Firm shall reasonably request or as such party reasonably deems appropriate.  The procedures of this Section 2.4(b) are exclusive and, except as set forth below, the determination of the Accounting Firm shall be final and binding on the parties.  The decision rendered pursuant to this Section 2.4(b) may be filed as a judgment in any court of competent jurisdiction.  Either party may seek specific enforcement or take other necessary legal action to enforce any decision under this Section 2.4(b).  The other party’s only defense to such a request for specific enforcement or other legal action shall be fraud by or upon the Accounting Firm.  Absent such fraud, such other party shall reimburse the party seeking enforcement for its expenses related to such enforcement.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

respectively, and (iv) in the case of releases from the Supplemental Escrow Retention in respect of Seller Surviving Representations, only Buyer Common Stock shall be released, not cash.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

reorganization, moratorium or other similar Laws affecting creditors’ rights generally or by general equitable principles.  Each of the Sellers and the Seller Representative has the absolute and unrestricted right, power, authority and capacity to execute and deliver this Agreement and the other Transaction Documents and to perform his, her or its obligations hereunder and thereunder and consummate the transactions contemplated hereby and thereby, and the execution, delivery and performance of this Agreement and the other Transaction Documents by each of the Sellers and the Seller Representative a party thereto, and their consummation of the transactions contemplated hereby and thereby by each of them, have been duly and validly authorized by all action required of each of the Sellers and the Seller Representative by applicable Law or otherwise.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

flows for the period ended December 26, 2010 and the notes thereto (the “E-conolight Audited Financial Statements” and, together with the Company Audited Financial Statements, the “Audited Financial Statements”); (e) E-conolight LLC’s unaudited balance sheet as of June 26, 2011 (the “E-conolight Interim Balance Sheet” and, together with the Company Interim Balance Sheet, the “Interim Balance Sheets”) and the related statements of operations, members’ equity and cash flows for the six (6) months then ended and the notes thereto; and (f) the unaudited balance sheet of E-conolight LLC as of May 28, 2011 (together with the financial statements set forth in subclause (e), the “E-conolight Interim Financial Statements”; the E-conolight Interim Financial Statements and the E-conolight Audited Financial Statements, the “E-conolight Financial Statements; the Company Interim Financial Statements and the E-conolight Interim Financial Statements, the “Interim Financial Statements”; and the Company Financial Statements and the E-conolight  Financial Statements, the “Financial Statements”).  The Financial Statements have been prepared in accordance with GAAP, consistently applied throughout the periods involved, and fairly present in all material respects the consolidated financial condition of the Company and E-conolight LLC, as applicable, as of their respective dates and the consolidated results of operations and cash flows of the Company and E-conolight LLC, as applicable, for the periods indicated, except that the Interim Financial Statements are subject to normal and recurring year-end adjustments that were or will not be material in amount or effect and, with respect to the unaudited consolidated balance sheets of the Company and E-conolight as of May 28, 2011, for the absence of footnote disclosures.

 

 

 

 

 

 

 

 

operation of the real property in the conduct of the Company Group’s business do not violate any applicable Law, Order, covenant, condition, restriction, easement, license, Permit or agreement. No material improvements constituting a part of the real property owned or, to the Company’s Knowledge, leased or used by the Company Group encroach on real property owned or leased by a Person other than a member of the Company Group. There are no Legal Proceedings pending or, to the Company’s Knowledge, threatened against or affecting the real property required to be listed on Schedule 3.7(b) or any portion thereof or interest therein in the nature or in lieu of condemnation or eminent domain proceedings.

 

 

 

 

 

 

 

 

 

 

 

 

continued conduct of the Company Group’s business after the Closing in substantially the same manner as conducted during the twelve (12) months preceding the Closing.

 

 

 

 

 

 

 

 

 

 

 

accumulation of inventory, payment of liabilities, or offering of discounts or other sales incentives;

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

used in the business of the Company Group as currently conducted, free and clear of all Encumbrances (other than restrictions imposed by Contracts pursuant to which the Company Group is authorized to use Third Party Intellectual Property).  The Company Intellectual Property, together with the Third Party Intellectual Property licensed by the Company Group to which the Company Group has legally enforceable non-exclusive rights, constitutes all of the Intellectual Property necessary for the Company Group to conduct its business as currently conducted.

 

 

 

 

 

 

 

 

 

 

 

 

 

Property of a confidential nature not otherwise disclosed in published patents or patent applications, and there has been no breach of these measures that has had or would reasonably be expected to have a Material Adverse Effect on the Company Group

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

financial reporting used by the Company Group is sufficient in all material respects to provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP. The minute books of the Company Group, all of which have been made available to the Buyer, contain accurate and complete records in all material respects of all meetings held and actions taken by the shareholders or equity owners of the Company Group and the boards of directors (or similar governing bodies) of the Company Group and any committee thereof.

 

 

 

 

 

 

 

 

 

 

 

established, maintained or contributed to, or had any obligation to establish, maintain or contribute to (i) any Plan that is subject to Title IV of ERISA or the funding requirements of Code §412; (ii) any multi-employer plan as defined in Section 4001(a)(3) of ERISA; or (iii) any multiple employer plan as defined in Code §413(c).

 

 

 

 

 

 

 

 

 

 

 

Schedule 3.17(o), the Buyer shall not have any obligation or liability of any kind or nature for any compensation or benefits of any kind or nature to the employees or consultants of the Company Group for services rendered prior to the Closing.

 

 

 

 

 

 

 

 

 

 

the Company Group have any present intention to terminate the employment or engagement of any of the foregoing.

 

 

 

 

 

 

 

 

Company Group nor, to the Company’s Knowledge, any other party is in breach or default, and no event has occurred which, with notice or the lapse of time, would reasonably be likely to constitute such a breach or default, or permit termination or modification; and (z) the Company Group is not subject to a retroactive rate adjustment, loss sharing arrangement or other actual or contingent liability. Such insurance policies are sufficient for compliance with all Laws applicable to the Company Group and for compliance in all material respects with the Company Group’s obligations under its Contracts.  There has been no failure to give any notice or present any claim under any insurance policy in a timely fashion or in the manner or detail required by the policy, except where the Company Group has reasonably determined that the cost of pursuing such claim together with any increase in premiums or other costs or expenses would exceed the value of the claim.  The Company Group has not been refused any property and casualty insurance, nor have any of its coverages been limited by any insurance carrier to which it has applied for insurance or with which it has carried insurance since January 1, 2009, and the Company Group has been covered at all times since January 1, 2009 by insurance in scope and amount reasonable and customary for the business in which it has engaged and the nature and amount of the liabilities it has incurred or would reasonably be expected to incur. Since January 1, 2009, no written notice of cancellation or non-renewal or disallowance (other than reservation of rights by the insurer) of any material claim has been received with respect to any insurance policy of the Company Group.

 

 

 

 

 

 

safety risk.  Except as set forth on Schedule 3.20(b), there is no presently pending or, to the Company’s Knowledge, threatened, and, to the Company’s Knowledge, there is no reasonable basis for, any Legal Proceeding or demand letter, and there is no pending or, to the Company’s Knowledge, expected recall or similar action, or any post-sale warning, relating to any alleged hazard or alleged defect in design, manufacture, materials or workmanship, including any failure to warn or alleged breach of express or implied warranty or representation, relating to any of the Company Group’s products or services, nor have the Company Group or its products or services been subject to any such Legal Proceeding, demand letter, recall or similar action, or post-sale warning since January 1, 2009.  Except as set forth on Schedule 3.20(b), since January 1, 2009, the Company Group has not received any material warranty claims, contractual terminations or requests for settlement exceeding $100,000, material refund or other material reduction in price due to the failure of its products or services to meet their specifications or otherwise to satisfy end user needs or for harm or damage to any third party.  The Financial Statements reflect reserves reasonably adequate in accordance with GAAP for any such claims Known by the Company for the applicable periods presented therein.

 

 

 

 

 

 

 

 

 

available to the Buyer correct and complete copies of all federal income Tax Returns since the date of the end of the Company’s fiscal 2007.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Company’s Knowledge, the Company and E-conolight LLC were the sole operators of E-conolight.  Pursuant to the E-conolight Re-acquisition Agreement, the Company acquired all of the outstanding membership interests in E-conolight LLC. The representations and warranties of the Company contained in such agreement are true, complete and correct in all respects.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable.  The Buyer Common Stock is listed for quotation on the NASDAQ Global Select Market.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

prices of shares of Buyer Common Stock on the Closing Date (without discount or premium).  The Buyer, the Company, the Company’s Subsidiaries, and the Sellers shall file all Tax Returns (including amended returns and claims for refund) and information reports in a manner consistent with such allocation and will not take any position contrary thereto for Tax purposes.  The Buyer and the Sellers agree that no portion of the Purchase Price shall be allocated to the Non-compete Agreements.

 

 

 

 

 

the Closing Date; provided (i) the amended Tax Return shall comply with all requirements of Law, (ii) the amendment of the Tax Return shall not adversely affect the Buyer, the Company or any of the Company’s Subsidiaries in any material respect, and (iii) any such amended Tax Return shall be reasonably acceptable to the Buyer.  Nothing in this Section 5.3(d) shall limit Sellers’ indemnification obligations under this Agreement.

 

 

 

 

 

 

 

inclusion of such financial statements and information obtained by the Buyer pursuant to this Section 5.4, by or at the request of the Buyer, in any filings by the Buyer with the SEC or any other securities regulatory authority or exchange.  The Sellers further agree that each of them will use, as applicable, commercially reasonable efforts to cause the Company Group’s auditors, at the Buyer’s expense, to provide to the Buyer (or the Buyer’s successor) such auditor’s consent to the inclusion of any such financial statements or the information contained therein, in any filings by or on behalf of the Buyer (or the Buyer’s successor) with the SEC or any other securities regulatory authority or exchange.

 

 

 

 

 

 

 

 

 

 

be for such purpose or to have such effect) and (y) each such Charitable Transferee agrees to be bound by the Transfer Restrictions and to not Transfer the Share Consideration until the completion of the six (6) month period commencing on the Closing Date; further provided that, in all events, any Transfer by any Seller or any transferee thereof must be in accordance with the requirements of (1) all applicable Laws (including the Securities Act and the securities Laws of any other applicable jurisdiction), (2) Section 5.7(a), and (3) any applicable policies (including ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and hedging policies) of the Buyer as may be in effect from time to time on or after the Closing Date.  The Buyer agrees that no portion of the Share Consideration delivered to the Escrow Agent as part of the Escrow Funds shall have its Transfer Restrictions lapse while held in escrow and that the Share Consideration delivered to the Sellers at Closing and not placed in escrow shall have priority with respect to the lapse of the Transfer Restrictions.

 

 

 

 

 

 

 

 

 

 

 

 

Company Employees who were enrolled immediately prior to the Closing Date in the comparable Company Plans, with the deductibles, co-payments and out-of-pocket expenses with which these Company Employees had been credited under such Plans for that plan year.

 

 

 

 

 

 

 

supplant the primary availability of any insurance that would be available in the absence of such indemnity.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

which Company or any of its Subsidiaries holds a beneficial interest shall be deemed to terminate at such time) and the amount of other Taxes of the Company and its Subsidiaries for a Straddle Period that relates to the Pre-Closing Tax Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the number of days in such Straddle Period;

 

 

 

 

 

 

 

 

 

 

 

 

or series of related items, where the Damages related thereto for which the Buyer Indemnified Person would otherwise be entitled to indemnification are less than $100,000 (the “De Minimis Amount”); provided, however, that if the Damages related thereto for which the Buyer Indemnified Person would otherwise be entitled to indemnification equal or exceed the De Minimis Amount, then the Buyer Indemnified Person shall be entitled to indemnification in full for all breaches of such representations and/or warranties without regard to the De Minimis Amount (but subject to the other limitations set forth in this Section 6.4 or in Section 6.6).

 

 

 

 

 

 

 

paid to the Buyer Indemnified Persons solely in cash; and (ii) Damages for breaches of any Seller Core Representation or any claim for indemnification or reimbursement to the extent not arising under Section 6.2(a) or 6.2(f) shall be capped at the amount of the Purchase Price actually paid to such Seller.

 

 

 

 

 

 

 

Sellers will settle among themselves any right to contribution or indemnity with regard to amounts paid from the Escrow Funds.

 

 

 

 

 

 

 

 

 

 

 

Representation may be made by the Buyer on or before the first Business Day that is at least thirty (30) months after the Closing Date and (ii) any claim with respect to a breach of a Seller Core Representation or any claim for indemnification or reimbursement to the extent not arising under Section 6.2(a) or 6.2(f) (which time limitations are set forth in Section 6.4(g)) may be made by the Buyer at any time prior to thirty (30) days following the expiration of the applicable statute of limitations period.

 

 

 

 

 

 

 

 

Claim), to assume the defense of such Third-Party Claim with counsel satisfactory to the Indemnified Person.  After notice from the Indemnifying Person to the Indemnified Person of its election to assume the defense of such Third-Party Claim, the Indemnifying Person shall not, so long as it diligently conducts such defense, be liable to the Indemnified Person under this Article VI for any fees of other counsel or any other expenses with respect to the defense of such Third-Party Claim, in each case subsequently incurred by the Indemnified Person in connection with the defense of such Third-Party Claim, other than reasonable costs of investigation.  If the Indemnifying Person assumes the defense of a Third-Party Claim, (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third-Party Claim are within the scope of and subject to indemnification, (ii) no compromise or settlement of such Third-Party Claims may be effected by the Indemnifying Person without the Indemnified Person’s Consent unless (A) there is no finding or admission that the Indemnified Person violated any Law or any rights of any Person; and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Person; and (iii) the Indemnified Person shall have no liability with respect to any compromise or settlement of such Third-Party Claims effected without its Consent.  If notice is given to an Indemnifying Person of the assertion of any Third-Party Claim and the Indemnifying Person does not, within twenty (20) days after the Indemnified Person’s notice is given, give notice to the Indemnified Person of its election to assume the defense of such Third-Party Claim, the Indemnifying Person will be bound by any determination made in such Third-Party Claim or any compromise or settlement effected by the Indemnified Person.

 

 

 

 

 

 

 

remedy available to an Indemnified Person in connection with any breach of this Agreement and/or any Damages arising out of the matters set forth in this Agreement or the transactions contemplated hereunder; provided, however, that nothing herein will limit any Indemnified Person’s rights hereunder or otherwise to injunctive or other equitable relief to enforce its rights under this Agreement or otherwise in connection with the transactions contemplated hereby; and provided further that nothing contained in this Agreement shall limit or restrict any Person who is a party to any other Transaction Document that is a Contract to obtain Damages or any other legal or equitable relief from any other Person who is a party to any such agreement in connection with the breach of such agreement by such other Person pursuant to the terms thereof.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

if delivered personally to the intended recipient; and (d) one (1) Business Day following deposit with an overnight courier service, in each case addressed as follows:

 

 

 

 

 

 

 

 

 

or to such other address or number as shall be furnished in writing by any such party in such manner, and such notice or communication shall be deemed to have been given as of the date so delivered, sent by telecopier, e-mail, pdf format or mailed.