Common use of Basket Amount Clause in Contracts

Basket Amount. (i) Notwithstanding any provision of this Agreement to the contrary, except as set forth in clause (ii) of this Section 8.4(b), an Indemnified Party may not recover any Losses under Section 8.2(a)(i) hereof unless and until one or more Officer’s Certificates identifying such Losses under Section 8.2(a)(i) hereof in excess of $250,000 in the aggregate (the “Basket Amount”) (it being understood if a common or related set of occurrences, events or sets of facts results in Losses, such Losses shall be aggregated for purposes of determining if the Basket Amount has been satisfied) has or have been delivered to the Escrow Agent or Stockholder as provided in Section 8.4(c) hereof and such Losses are found to be valid and payable (if not for the terms of this Section 8.4(b) pursuant to the terms of Section 8.4, in which case Parent shall be entitled to recover all Losses in excess of the Basket Amount so identified in Officer’s Certificates and found to be payable pursuant to the terms of this Section 8.4 in excess of the Basket Amount. (ii) Parent shall be entitled to recover for, and the Basket Amount shall not apply as a threshold to, any and all claims or payments made with respect to all Losses (a) incurred pursuant to any intentional breach of a representation or warranty of the Company contained in this Agreement or any certificates or other instruments delivered by or on behalf of the Company pursuant to this Agreement (provided that for purposes of determining any such breach or inaccuracy and the amount of any Loss no effect will be given to any qualification as to “materiality,” a “Material Adverse Effect,” a “material adverse effect” or “Knowledge” contained therein), or (b) incurred pursuant to a breach of any Company Fundamental Representations or Stockholder Fundamental Representations or any Losses arising from intentional misrepresentation, fraud, criminal activity or willful misconduct.

Basket Amount. (i) Notwithstanding any provision of this Agreement to the contrary, but subject to SECTION 7.5 hereof, except as set forth in clause (ii) the second sentence of this Section 8.4(bSECTION 7.3(b), an Indemnified Party Parent may not recover any Losses under Section 8.2(a)(i) hereof SECTION 7.2 unless and until one or more Officer’s 's Certificates (as defined below) identifying such Losses under Section 8.2(a)(i) hereof SECTION 7.2 in excess of $250,000 1,500,000 in the aggregate (the “Basket Amount”) (it being understood if a common or related set of occurrences, events or sets of facts results in Losses, such Losses shall be aggregated for purposes of determining if the Basket Amount has been satisfied"BASKET AMOUNT") has or have been delivered to the Escrow Agent or and the Stockholder Representative as provided in Section 8.4(cSECTION 7.3(e) hereof hereof, and such Losses are found (x) agreed to by the Stockholder Representative, (y) not subject to an Objection Notice, validly delivered in accordance with the provisions of SECTION 7.3(f) hereof or (z) determined to be valid and payable (if not for the terms of this Section 8.4(b) subject to indemnification pursuant to the terms of Section 8.4SECTION 7.3(g) hereof, in which case Parent shall be entitled to recover all Losses in excess of the Basket Amount so identified in Officer’s Certificates and found to be payable pursuant to the terms of this Section 8.4 in excess of identified, including the Basket Amount. (ii) . Notwithstanding the foregoing, Parent shall be entitled to recover for, and the Basket Amount shall not apply as a threshold to, any and all claims or payments made with respect to all (A) Losses resulting from any Dissenting Share Payments, (aB) incurred pursuant Excess Third Party Expenses, (C) Losses relating to Stockholder claims relating to or arising out of this Agreement or the transactions contemplated hereby, and (D) Losses resulting from any intentional breach or inaccuracy of a any representation or warranty contained in SECTION 2.10 of this Agreement with respect to any sales, use, excise, transfer, or similar taxes ("SALES TAXES"), without regard to any information provided by the Company contained in this Agreement or the Disclosure Schedule regarding Sales Taxes; provided, however, that any certificates or other instruments delivered Sales Taxes giving rise to such Losses were initiated by or on behalf of the Company pursuant to this Agreement (provided that for purposes of determining any such breach or inaccuracy and the amount of any Loss no effect will be given to any qualification as to “materiality,” a “Material Adverse Effect,” a “material adverse effect” or “Knowledge” contained therein), or (b) incurred pursuant to a breach of any Company Fundamental Representations or Stockholder Fundamental Representations or any Losses arising from intentional misrepresentation, fraud, criminal activity or willful misconduct.tax

Basket Amount. (i) Notwithstanding any provision of this Agreement to the contrary, except as set forth in clause (ii) of this Section 8.4(b7.4(b), an Indemnified Party may not recover any Losses under clause (i) of Section 8.2(a)(i7.2(a) hereof unless and until one or more Officer’s Certificates identifying such Losses under clause (i) of Section 8.2(a)(i7.2(a) hereof in excess of $250,000 500,000 in the aggregate (the “Basket Amount”) (it being understood if a common or related set of occurrences, events or sets of facts results in Losses, such Losses shall be aggregated for purposes of determining if the Basket Amount has been satisfied) has or have been delivered to the Escrow Agent or and the Stockholder Representative as provided in Section 8.4(c7.4(g) hereof and such Losses are found to be valid and payable (if not for the terms of this Section 8.4(b) pursuant to the terms of Section 8.4hereof, in which case Parent shall be entitled to recover all Losses in excess of the Basket Amount so identified in Officer’s Certificates and found to be payable pursuant to the terms of this Section 8.4 in excess of the Basket Amountidentified. (ii) Parent shall be entitled to recover for, and the Basket Amount shall not apply as a threshold to, any and all claims or payments made with respect to all Losses (a) incurred pursuant to any intentional breach clauses (ii) through (x) of a representation or warranty of the Company contained in this Agreement or any certificates or other instruments delivered by or on behalf of the Company pursuant to this Agreement (provided that for purposes of determining any such breach or inaccuracy and the amount of any Loss no effect will be given to any qualification as to “materiality,” a “Material Adverse Effect,” a “material adverse effect” or “Knowledge” contained therein)Section 7.2(a) hereof, or (b) incurred pursuant as a result of any breach or inaccuracy of the representations or warranties set forth in Section 2.2 (under the heading “Company Capital Structure”), Section 2.4 (under the heading “Authority”), or Section 2.15 hereof (under the heading “Intellectual Property”) and (c) that are Agreed Upon-Losses (as defined in Section 7.4(i)(v) hereof). (iii) For the purposes hereof, “Officer’s Certificate” shall mean a certificate signed by any officer of Parent: (1) stating that an Indemnified Party has paid, sustained, incurred, or properly accrued, or reasonably anticipates that it will have to a pay, sustain, incur, or accrue Losses, and (2) specifying in reasonable detail the individual items of Losses included in the amount so stated (and the method of computation of each such item of Loss, if applicable), the date each such item was paid, sustained, incurred, or properly accrued (in accordance with GAAP), or the basis for such reasonably anticipated Loss(es), and (3) the basis for indemnification under Section 7.2 to which such item of Loss is related (including, if applicable, the specific nature of the misrepresentation, breach of any Company Fundamental Representations warranty or Stockholder Fundamental Representations or any Losses arising from intentional misrepresentation, fraud, criminal activity or willful misconductcovenant to which such item is related).

Basket Amount. (i) Notwithstanding any provision of this Agreement to the contrary, except as set forth in clause (ii) of this Section 8.4(b8.4(c), an Indemnified Party may not recover any Losses under Section 8.2(a)(i) hereof unless and until one or more Officer’s Certificates identifying such Losses under Section 8.2(a)(i) hereof in excess of $250,000 100,000 in the aggregate (the “Basket Amount”) (it being understood if a common or related set of occurrences, events or sets of facts results in Losses, such Losses shall be aggregated for purposes of determining if the Basket Amount has been satisfied) has or have been delivered to the Escrow Agent or Stockholder and the Shareholder Representative as provided in Section 8.4(c8.4(f) hereof and such Losses are found to be valid and payable (if not for the terms of this Section 8.4(b) pursuant to the terms of Section 8.4hereof, in which case Parent shall be entitled to recover all Losses in excess of the Basket Amount so identified in Officer’s Certificates and found to be payable pursuant to the terms of this Section 8.4 in excess of the Basket Amountidentified. (ii) Parent shall be entitled to recover for, and the Basket Amount shall not apply as a threshold to, any and all claims or payments made with respect to all Losses (a1) incurred pursuant to clauses (ii) through (xi) of Section 8.2(a) hereof, and (2) that are Agreed-Upon Losses (as defined below). (iii) For the purposes hereof, “Officer’s Certificate” shall mean a certificate signed by any intentional breach officer of a representation Parent: (1) stating that an Indemnified Party has paid, sustained, incurred, or warranty properly accrued, or reasonably anticipates that it will have to pay, sustain, incur, or accrue Losses, (2) specifying in reasonable detail the individual items of Losses included in the Company contained in this Agreement or any certificates or other instruments delivered by or on behalf of the Company pursuant to this Agreement amount so stated (provided that for purposes of determining any such breach or inaccuracy and the amount method of any Loss no effect will be given to any qualification as to “materiality,” a “Material Adverse Effect,” a “material adverse effect” computation of each such item of Loss, if applicable), the date each such item was paid, sustained, incurred, or “Knowledge” contained thereinproperly accrued (in accordance with GAAP), or the basis for such reasonably anticipated Loss(es); and (b3) incurred pursuant the basis for indemnification under Section 8.2(a) to a which such item of Loss is related (including, if applicable, the specific nature of the misrepresentation, breach of any Company Fundamental Representations warranty or Stockholder Fundamental Representations or any Losses arising from intentional misrepresentation, fraud, criminal activity or willful misconductcovenant to which such item is related).

Basket Amount. (i) Notwithstanding any provision of anything contained in this Agreement to the contrary, except as set forth in clause (ii) of this Section 8.4(b), an Indemnified Party may not recover the Buyer Indemnitees’ shall have no right to indemnification for any Losses under pursuant to Section 8.2(a)(i) hereof 11.2 unless and until one or more Officer’s Certificates identifying the aggregate amount of all such Losses under Section 8.2(a)(i) hereof in excess of incurred by the Buyer Indemnitees, exceeds $250,000 in the aggregate 100,000 (the “Basket Amount”), and then only to the extent of such excess; provided, the foregoing limitation shall not apply with respect to Losses arising from, in connection with, or relating to: (i) a breach by the Seller or Parent of any representation or warranty contained in Sections 4.1 (Organizational Status) or 4.7(a) (it being understood if Authorization of Transaction); (ii) a common breach of any covenant by Seller or related set of occurrences, events or sets of facts results in Losses, such Losses shall be aggregated for purposes of determining if the Basket Amount has been satisfied) has or have been delivered to the Escrow Agent or Stockholder as provided in Section 8.4(c) hereof and such Losses are found to be valid and payable (if not for the terms of this Section 8.4(b) pursuant to the terms of Section 8.4, in Parent which case Parent shall be entitled to recover all Losses in excess of the Basket Amount so identified in Officer’s Certificates and found to be payable is required pursuant to the terms of this Section 8.4 in excess of the Basket Amount. Agreement; or (iiiii) Parent shall be entitled to recover for, and the Basket Amount shall not apply as a threshold to, any and all claims fraud or payments made with respect to all Losses (a) incurred pursuant to any intentional breach misrepresentation of a representation or warranty of the Company material fact. Similarly, notwithstanding anything contained in this Agreement or to the contrary, the Seller Indemnitees shall have no right to indemnification for any certificates or other instruments delivered by or on behalf of the Company Losses pursuant to this Agreement (provided that for purposes of determining any such breach or inaccuracy Section 11.3 unless and until the aggregate amount of any Loss no effect will be given all such Losses incurred by the Seller Indemnitees exceeds the Basket Amount, and then only to any qualification as the extent of such excess; provided, the forgoing limitation shall not apply with respect to “materiality,” a “Material Adverse Effect,” a “material adverse effect” or “Knowledge” contained therein)Losses arising from, in connection with, or relating to (bi) incurred pursuant to a breach by the Buyer of any representation or warranty contained in Sections 5.1 (Organizational Status) or 5.2(a) (Authorization of Transaction); or (ii) a breach of any Company Fundamental Representations covenant by Buyer which is required pursuant to the terms of this Agreement; or Stockholder Fundamental Representations (iii) fraud or any Losses arising from intentional misrepresentation, fraud, criminal activity or willful misconductmisrepresentation of a material fact.

Basket Amount. (i) Notwithstanding any provision of this Agreement to the contrary, except as set forth in clause (ii) of this Section 8.4(b7.4(b), an Indemnified Party may not recover any Losses under Section 8.2(a)(i7.2(a) hereof unless and until one or more Officer’s Certificates identifying such Losses under Section 8.2(a)(i7.2(a) hereof in excess of $250,000 1,000,000 in the aggregate (the “Basket Amount”) (it being understood if a common or related set of occurrences, events or sets of facts results in Losses, such Losses shall be aggregated for purposes of determining if the Basket Amount has been satisfied) has or have been delivered to the Escrow Agent or and the Stockholder Representative as provided in Section 8.4(c7.4(f) hereof and such Losses are found to be valid and payable (if not for the terms of this Section 8.4(b) pursuant to the terms of Section 8.4hereof, in which case Parent shall be entitled to recover all Losses in excess of the Basket Amount so identified in Officer’s Certificates and found to be payable pursuant to the terms of this Section 8.4 in excess of the Basket Amountidentified. (ii) Parent shall be entitled to recover for, and the Basket Amount shall not apply as a threshold to, any and all claims or payments made with respect to all Losses (a) incurred pursuant to any intentional fraud, gross negligence or willful misconduct resulting in a breach or inaccuracy of a representation or warranty of the Company contained in this Agreement or any certificates or other instruments delivered by or on behalf of the Company pursuant to this Agreement (provided that that, in the event of such breach, solely for purposes of determining any such breach or inaccuracy and the amount of any Loss no effect will be given to any qualification as to “materiality,” a “Company Material Adverse Effect,” a “material adverse effect” or “Knowledge” contained therein), or (b) incurred pursuant to a breach clauses (ii) through (ix) of Section 7.2(a) hereof, (c) relating to the Specified Representations, or (d) resulting from the failure of any Company Fundamental Representations Stockholder to pay Agent Interpleader Expenses or Stockholder Fundamental Representations or any Losses arising from intentional misrepresentation, fraud, criminal activity or willful misconductAgent Indemnification Expenses pursuant to clauses (vi) and (vii) of Section 7.4(j) hereof.

Basket Amount. (i) Notwithstanding any provision of this Agreement to the contrary, except as set forth in clause (ii) of this Section 8.4(b7.4(b), an Indemnified Party may not recover any Losses under Section 8.2(a)(i7.2(a) hereof unless and until one or more Officer’s Certificates identifying such Losses under Section 8.2(a)(i7.2(a) hereof in excess of $250,000 300,000 in the aggregate (the “Basket Amount”) (it being understood if a common or related set of occurrences, events or sets of facts results in Losses, such Losses shall be aggregated for purposes of determining if the Basket Amount has been satisfied) has or have been delivered to the Escrow Agent or Stockholder the Shareholder Representative as provided in Section 8.4(c7.4(e)(iii) hereof and such Losses are found to be valid and payable (if not for the terms of this Section 8.4(b) pursuant to the terms of Section 8.4hereof, in which case Parent shall be entitled to recover all Losses in excess of the Basket Amount so identified in Officer’s Certificates and found to be payable pursuant to the terms of this Section 8.4 in excess of the Basket Amountidentified. (ii) Parent shall be entitled to recover for, and the Basket Amount shall not apply as a threshold to, any and all claims or payments made with respect to all Losses (a) incurred pursuant to any intentional breach of a representation or warranty of the Company contained in this Agreement or any certificates or other instruments delivered by or on behalf of the Company pursuant to this Agreement (provided that that, in the event of such breach, for purposes of determining any such breach or inaccuracy and the amount of any Loss no effect will be given to any qualification as to “materiality,” a “Company Material Adverse Effect,” a “material adverse effect” or “Knowledge” contained therein), or (b) incurred pursuant to a breach clauses (ii) through (xi) of Section 7.2(a) hereof, (c) relating to the Specified Representations, or (d) resulting from the failure of any Company Fundamental Representations Shareholder to pay Agent Interpleader Expenses or Stockholder Fundamental Representations or any Losses arising from intentional misrepresentation, fraud, criminal activity or willful misconductAgent Indemnification Expenses pursuant to clauses (vi) and (vii) of Section 7.4(j) hereof.

Basket Amount. (i) Notwithstanding any provision of this Agreement to the contrary, except as set forth in clause (ii) of this Section 8.4(b7.4(b), an Indemnified Party may not recover any Losses under Section 8.2(a)(i7.2(a) hereof unless and until one or more Officer’s Certificates identifying such Losses under Section 8.2(a)(i7.2(a) hereof in excess of $250,000 400,000 in the aggregate (the “Basket Amount”) (it being understood if a common or related set of occurrences, events or sets of facts results in Losses, such Losses shall be aggregated for purposes of determining if the Basket Amount has been satisfied) has or have been delivered to the Escrow Agent or the Stockholder Representative as provided in Section 8.4(c7.4(e)(iii) hereof and such Losses are found to be valid and payable (if not for the terms of this Section 8.4(b7.4(b) pursuant to the terms of Section 8.47.4, in which case Parent shall be entitled to recover all Losses in excess of the Basket Amount so identified in Officer’s Certificates and found to be payable pursuant to the terms of this Section 8.4 7.4 in excess of the Basket Amount. (ii) Parent shall be entitled to recover for, and the Basket Amount shall not apply as a threshold to, any and all claims or payments made with respect to all Losses (a) incurred pursuant to any intentional breach of a representation or warranty of the Company contained in this Agreement or any certificates or other instruments delivered by or on behalf of the Company pursuant to this Agreement (provided that that, in the event of such breach, for purposes of determining any such breach or inaccuracy and the amount of any Loss no effect will be given to any qualification as to “materiality,” a “Company Material Adverse Effect,” a “material adverse effect” or “Knowledge” contained therein), or (b) incurred pursuant to a breach clauses (ii) through (vii) of Section 7.2(a) hereof, (c) relating to the Specified Representations or (d) resulting from the failure of any Company Fundamental Representations Stockholder to pay Agent Interpleader Expenses or Stockholder Fundamental Representations or any Losses arising from intentional misrepresentation, fraud, criminal activity or willful misconductAgent Indemnification Expenses pursuant to clauses (vi) and (vii) of Section 7.4(j) hereof.