Common use of Indemnity Cap Clause in Contracts

Indemnity Cap. Notwithstanding anything to the contrary, express or implied contained in this Agreement, except with respect to (i) any fraud or willful misconduct by the Company Stockholder in connection with this Agreement, or (ii) any Pre-Closing Tax Liabilities payable by the Company Stockholder for which the Company Stockholder is liable pursuant to Section 4.11 of this Agreement (for which there shall be no “Indemnity Cap”), the Parent’s sole and exclusive right to recover any Damages from the Company Stockholder under this Article VI with respect to Claims resulting from or relating to any misrepresentation or breach of warranty or failure to perform any covenant or agreement by the Company Stockholder contained in this Agreement shall be limited to the sum of Four Million ($4,000,000) Dollars (the “Indemnity Cap”). Payment of any indemnified amount by the Company Stockholder shall be paid solely by returning to the Parent, first the appropriate amount of Additional Shares (valued at the closing price of the Parent’s Common Stock, as traded on the Nasdaq Capital Markets (or other national securities exchange) on the trading day immediately prior to the Closing Date) and, then, only if the amount of the Claim exceeds the then value of the Additional Shares, an appropriate number of Make-Whole Shares, valued at the 2018 Market Value, subject to the $5.00 floor price. Notwithstanding the foregoing, the exercise of any indemnity provisions, including calculation of the Indemnity Cap, as to the Additional Merger Consideration and the Make-Whole Shares, shall be net of any tax liability arising from or related to the satisfaction of any indemnity obligations through return of any Additional Merger Consideration and Make-Whole Shares. There shall be no Indemnity Cap in respect of the Assumed Liabilities for which the Parent is liable under Section 6.2.

Indemnity Cap. Notwithstanding anything to the contrary, express or implied contained in this AgreementThe Parties acknowledge and agree that, except with respect to as otherwise provided in the last sentence of this paragraph, (i) in no event shall Seller ever be required to indemnify the Buyer Indemnified Parties for Indemnity Claims made pursuant to Section 7.2(a) of this Agreement in any fraud or willful misconduct by amount exceeding an aggregate of thirty-five percent (35%) of the Company Stockholder in connection with this AgreementPurchase Price, or and (ii) any Pre-Closing Tax Liabilities payable by in no event shall Buyer ever be required to indemnify the Company Stockholder Seller Indemnified Parties for which the Company Stockholder is liable Indemnity Claims made pursuant to Section 4.11 7.1(a) of this Agreement in any amount exceeding Fifteen Percent (for which there shall be no “Indemnity Cap”)15%) of the Purchase Price (each, the Parent’s sole and exclusive right to recover any Damages from the Company Stockholder under this Article VI with respect to Claims resulting from or relating to any misrepresentation or breach of warranty or failure to perform any covenant or agreement by the Company Stockholder contained in this Agreement shall be limited to the sum of Four Million ($4,000,000) Dollars (the an “Indemnity Cap”). Payment of Each Party agrees to use its best efforts to mitigate any indemnified amount by the Company Stockholder shall be paid solely by returning Claim. Whenever an Indemnifying Party is required to the Parentindemnify and hold harmless an Indemnified Party from and against, first the appropriate amount of Additional Shares (valued at the closing price of the Parent’s Common Stockor to reimburse an Indemnified Party for, as traded on the Nasdaq Capital Markets (or other national securities exchange) on the trading day immediately prior to the Closing Date) anda Claim, then, only if the amount of the Claim exceeds the then value of the Additional Shares, an appropriate number of Make-Whole Shares, valued at the 2018 Market Valuesuch Indemnifying Party will, subject to the $5.00 floor priceprovisions of this Article VII, pay the Indemnified Party the amount of such Claim, reduced by the net proceeds of any insurance policy or any Tax benefits realized by the Indemnified Party with respect to such Claim. The Parties hereby agree that any indemnification payments made pursuant to this Agreement shall be treated for all Tax purposes as an adjustment to the Purchase Price. Notwithstanding the foregoing, the exercise Parties agree that the Indemnity Cap shall not apply in the case of any indemnity provisionsIndemnity Claim that arises out of or relates to (w) the breach of, including calculation or the failure to perform or satisfy any of, the representations, warranties or covenants made in Sections 1.6 (but only with respect to Seller’s obligations to make payments of amounts received by Seller on Buyer’s behalf pursuant to such Section 1.6), 2.8, the Indemnity Capfirst two sentences of 2.9(a), as to the Additional Merger Consideration and the Make-Whole Shares2.11 or 2.17, shall be net (x) an act or omission (or series of any tax liability arising from acts or related to the satisfaction of any indemnity obligations through return of any Additional Merger Consideration and Make-Whole Shares. There shall be no Indemnity Cap in respect of the Assumed Liabilities for omissions) which the Parent is liable under Section 6.2constitutes fraud or willful concealment; (y) a Permitted Lien, or (z) an Excluded Liability.

Indemnity Cap. (i) Notwithstanding anything any provision contained to the contrary, express or implied contained contrary in this Agreement, except with respect to (i) any fraud or willful misconduct by the Company Stockholder in connection with this Agreement, or (ii) any Pre-Closing Tax Liabilities payable by Exhibits and the Company Stockholder for which the Company Stockholder is liable pursuant to Section 4.11 of this Agreement (for which there shall be no “Indemnity Cap”)related agreements, the Parent’s sole aggregate liability of Xx. Xxxxx, on behalf of the Sellers and exclusive right to recover any Damages from the Company Stockholder under this Article VI with respect to Claims resulting from or relating to any misrepresentation or breach of warranty or failure to perform any covenant or agreement by the Company Stockholder contained in this Agreement Companies hereunder, shall be limited to the sum of Four Eight Million Five Hundred Ten Thousand Dollars ($4,000,0008,510,000) Dollars (the “Indemnity CapCap Amount”). Payment The Indemnity Cap Amount applies to, but is not limited to, all representations, warranties indemnification obligations, covenants Indebtedness, Indemnifiable Claims, Third Party Claims, Claims Liabilities or Adverse Consequences resulting from any Basis; the Indemnity Cap Amount is absolute; and Buyer absolutely, unconditionally and irrevocably waives, releases and forever discharges the right to pursue any amounts greater than the Indemnity Cap Amount, except as explicitly excluded from the Indemnity Cap Amount in this §8(i)(i). The Indemnity Cap Amount shall not apply to any breach of any indemnified amount representations, warranties and/or covenants and/or any indemnification obligations given by Xx. Xxxxx, on behalf of the Company Stockholder shall be paid solely by returning Sellers and the Companies, with respect to any matters that concern or pertain to the Parent, first the appropriate amount of Additional Shares following: (valued at the closing price A) Taxes of the Parent’s Common Stock, as traded on the Nasdaq Capital Markets (or other national securities exchange) on the trading day immediately Sellers and/or Companies prior to the Closing Date; (B) and, then, only if the amount Medicare and Medicaid obligations of the Claim exceeds the then value of the Additional Shares, an appropriate number of Make-Whole Shares, valued at the 2018 Market Value, subject Sellers and/or Companies prior to the $5.00 floor priceClosing Date; (C) fraud or intentional misrepresentations asserted by Buyer made by Xx. Notwithstanding the foregoing, the exercise of any indemnity provisionsXxxxx in this Agreement, including calculation of the Indemnity CapExhibits and Disclosure Schedules attached hereto; and (D) fraud or intentional misrepresentations asserted by third parties shall not be capped after final judgments not appealable by right are obtained by such third parties containing specific findings that Xx. Xxxxx, as Dr. Fireman or Companies engaged in fraud or intentional misrepresentations, (however, nothing shall preclude Buyer from seeking indemnification for third party fraud or intentional misrepresentation claims up to the Additional Merger Consideration and the Make-Whole Shares, shall be net of any tax liability arising from or related to the satisfaction of any indemnity obligations through return of any Additional Merger Consideration and Make-Whole Shares. There shall be no such Indemnity Cap in respect of the Assumed Liabilities for which the Parent amount until such final judgment not appealable by right is liable under Section 6.2issued).

Indemnity Cap. Notwithstanding anything to the contrary, express or implied contained in this Agreement, except with respect to (i) any fraud or willful misconduct by the Company Stockholder in connection with this Agreement, or (ii) any Pre-Closing Tax Liabilities payable by the Company Stockholder for which the Company Stockholder is liable pursuant to Section 4.11 of this Agreement (for which there shall be no “Indemnity Cap”), the Parent’s sole and exclusive right to recover any Damages from the Company Stockholder under this Article VI with respect to Claims resulting from or relating to any misrepresentation or breach of warranty or failure to perform any covenant or agreement by the Company Stockholder contained in this Agreement shall be limited to the sum of Four Million ($4,000,000) Dollars (the “Indemnity Cap”). Payment of any indemnified amount by the Company Stockholder shall be paid solely by returning to the Parent, first the appropriate amount of Additional Shares (valued at the closing price of the Parent’s Common Stock, as traded on the Nasdaq Capital Markets (or other national securities exchange) on the trading day immediately prior to the Closing Date) and, then, only if the amount of the Claim exceeds the then value of the Additional Shares, an appropriate number of Make-Whole Shares, valued at the 2018 Market Value, subject to the $5.00 floor price. Notwithstanding the foregoing, the exercise of any indemnity provisions, including calculation of the Indemnity Cap, as to the Additional Merger Consideration and the Make-Whole Shares, shall be net of any tax liability arising from or related to the satisfaction of any indemnity obligations through return of any Additional Merger Consideration and Make-Whole Shares. There shall be no Indemnity Cap in respect of the Assumed Liabilities for which the Parent is liable under Section 6.2.

Indemnity Cap. Notwithstanding anything to the contrary, express or implied contained in this Agreement, except with respect to (i) any fraud or willful misconduct by the Company Stockholder Stockholders in connection with this Agreement, or (ii) any Pre-Closing Tax Excluded Liabilities payable by the Company Stockholder described in Section 1.4 above, for which the Company Stockholder is Company, DiscCo and the Stockholders are and shall remain solely liable pursuant to Section 4.11 of this Agreement (and for which there shall be no “Indemnity Cap”), the Parent’s Buying Indemnified Parties’ sole and exclusive right to recover any Damages from the Company Stockholder Selling Indemnifying Parties, or any of them, under this Article VI with respect to Claims resulting from or relating to any misrepresentation or breach of warranty or failure to perform any covenant or agreement by the Company Stockholder contained in this Agreement shall be limited to $7,500,000 or fifty (50%) percent of the sum cash amount of Four Million ($4,000,000) Dollars the Base Purchase Price paid at Closing to both of the Stockholders on the Closing Date (the “Indemnity Cap”). Payment For the avoidance of any indemnified amount by doubt, (i) the Company Stockholder shall be paid solely by returning to the Parent, first the appropriate aggregate amount of Additional Shares (valued at the closing price of the Parent’s Common Stock, as traded on the Nasdaq Capital Markets (or other national securities exchange) on the trading day immediately prior Damages for which all Selling Indemnifying Parties may be liable pursuant to the Closing Date) and, then, only if the amount of the Claim exceeds the then value of the Additional Shares, an appropriate number of Make-Whole Shares, valued at the 2018 Market Value, subject to the $5.00 floor price. Notwithstanding the foregoing, the exercise of any indemnity provisions, including calculation of this Article VI shall not exceed the Indemnity Cap, as ; and (ii) the aggregate amount of Damages for which any one Stockholder may be liable pursuant to the Additional Merger Consideration and the Make-Whole Shares, this Article VI shall be net limited to an aggregate total of any tax liability arising $3,750,000 from or related to the satisfaction of any indemnity obligations through return of any Additional Merger Consideration and Make-Whole Shareseach Stockholder. There shall be no Indemnity Cap in respect of Excluded Liabilities or Pre-Closing Tax liabilities for which the Selling Indemnifying Parties are liable under Section 6.1(b), or Assumed Liabilities for which the Parent is Buying Indemnifying Parties are liable under Section 6.26.2(b).