Threshold. (a) Except as set forth in the last sentence of this Section 9.4(a) with respect to Buyer Non-Threshold Claims, neither Seller and Parent shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by any Buyer Indemnified Party for which they are entitled to indemnification hereunder (but for the operation of this proviso), exceed Three Hundred Thousand Dollars ($300,000, the "Threshold Amount") and then, Buyer Indemnified Parties shall only be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Buyer Indemnified Party arising out of, resulting from or relating or incident to any (i) any Excluded Liability, (ii) any Liability imposed upon any Buyer Indemnified Party by reason of Buyer's or Dayton's alleged status as transferee or successor of the Subject Business or the Subject Assets, (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Sections 5.1.1 (Ownership of Stock; Authorization of Parent), 5.1.2 (Organization of Seller; Authorization) (other than the third and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.5 (Title to and Condition of Subject Assets) (other than the first, second and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.9 (Taxes), Section 5.1.13 (Employee Benefit Plans), Section 5.1.14 (Compliance with Environmental Laws), Section 5.1.22 (Liabilities) or Section 5.1.23 (No Other Agreements to Sell the Assets) or (iv) any breach, non-fulfillment or non-performance of Section 8.5 hereof or the Transition Agreement (clauses (i) through (iv), the "Buyer Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in this Section 9.4(a) (all other Buyer Claims for which Buyer or Dayton is entitled to indemnification under Section 9.2, "Buyer Threshold Claims"). (b) Except as set forth in the last sentence of this Section 9.4(b) with respect to Seller Non-Threshold Claims, neither Buyer nor Dayton shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by any Seller Indemnified Party for which they are entitled to indemnification, individually or in the aggregate, hereunder (but for the operation of this proviso), exceed the Threshold Amount and then, Seller Indemnified Parties shall only be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Seller Indemnified Party arising out of, resulting from or relating or incident to any breach, non-fulfillment or non-performance with respect to (i) any Assumed Liability, subject to the terms of Section 2.3, (ii) under the Promissory Note, or (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Section 7.1.1 (Organization) or Section 7.1.2 (Authorization) (clauses (i) through (iii), the "Seller Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in the first sentence of this Section 9.4(b) (all other Seller Claims for which Seller or Parent is entitled to indemnification under Section 9.3, "Seller Threshold Claims").
Appears in 1 contract
Threshold. (ai) Except as set forth No claim for indemnification may be made under Section 7.2(a) (other than claims for recovery under Section 7.2(a)(i) for any breach or inaccuracy of the applicable Surviving Representations made by the Company, under Sections 7.2(a)(iii)-(vii), (xi) and (xiii), for any fraud by or on behalf of the Company in connection with any representation or warranty of the last sentence Company contained in this Agreement, the Certificates or other Merger-Related Agreements or for any fraud by or on behalf of a Company Stockholder in connection with any representation or warranty of such Company Stockholder contained in any Merger-Related Agreements delivered by such Company Stockholder) unless and until the aggregate amount of Losses of the Parent Indemnified Parties that may be claimed thereunder exceeds $300,000 (the “Threshold”), and once such Threshold has been reached, the Seller Indemnifying Parties shall be liable to the Parent Indemnified Parties for the full amount of all such Losses, subject to the other limitations contained herein.
(ii) No claim for indemnification may be made under Section 7.3(a) (other than claims for recovery under Section 7.3(a)(i) for any breach or inaccuracy of the applicable Surviving Representations made by Parent or Merger Sub or any fraud by or on behalf of Parent and Merger Sub in connection with any representation or warranty of Parent or Merger Sub contained in this Agreement) unless and until the aggregate amount of Losses of the Seller Indemnified Parties that may be claimed thereunder (together with any Losses that may be claimed under any other subsection of Section 9.4(a7.3(a)) with respect to Buyer Non-exceeds the Threshold, and once such Threshold Claimshas been reached, neither Seller and Parent shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by any Buyer Indemnified Party for which they are entitled to indemnification hereunder (but for the operation of this proviso), exceed Three Hundred Thousand Dollars ($300,000, the "Threshold Amount") and then, Buyer Indemnified Parties shall only be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Buyer Indemnified Party arising out of, resulting from or relating or incident to any (i) any Excluded Liability, (ii) any Liability imposed upon any Buyer Indemnified Party by reason of Buyer's or Dayton's alleged status as transferee or successor of the Subject Business or the Subject Assets, (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Sections 5.1.1 (Ownership of Stock; Authorization of Parent), 5.1.2 (Organization of Seller; Authorization) (other than the third and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.5 (Title to and Condition of Subject Assets) (other than the first, second and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.9 (Taxes), Section 5.1.13 (Employee Benefit Plans), Section 5.1.14 (Compliance with Environmental Laws), Section 5.1.22 (Liabilities) or Section 5.1.23 (No Other Agreements to Sell the Assets) or (iv) any breach, non-fulfillment or non-performance of Section 8.5 hereof or the Transition Agreement (clauses (i) through (iv), the "Buyer Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in this Section 9.4(a) (all other Buyer Claims for which Buyer or Dayton is entitled to indemnification under Section 9.2, "Buyer Threshold Claims").
(b) Except as set forth in the last sentence of this Section 9.4(b) with respect to Seller Non-Threshold Claims, neither Buyer nor Dayton shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by any Seller Indemnified Party for which they are entitled to indemnification, individually or in the aggregate, hereunder (but for the operation of this proviso), exceed the Threshold Amount and then, Seller Indemnified Parties shall only be entitled to indemnification hereunder to for the extent such full amount of all Losses with respect to which indemnification is sought pursuant to this Article IX exceed in excess of the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Seller Indemnified Party arising out of, resulting from or relating or incident to any breach, non-fulfillment or non-performance with respect to (i) any Assumed Liability, subject to the terms of Section 2.3, (ii) under the Promissory Note, or (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Section 7.1.1 (Organization) or Section 7.1.2 (Authorization) (clauses (i) through (iii), the "Seller Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in the first sentence of this Section 9.4(b) (all other Seller Claims for which Seller or Parent is entitled to indemnification under Section 9.3, "Seller Threshold Claims")Threshold.
Appears in 1 contract
Sources: Merger Agreement (Cafepress Inc.)
Threshold. (a) Except as set forth in the last sentence of this Other than for any Excluded Claim, Sellers shall not be liable, pursuant to Section 9.4(a) with respect to Buyer Non-Threshold Claims8.1, neither Seller and Parent shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of any Losses incurred, sustained or suffered by any Buyer Purchaser Indemnified Party for which they are entitled unless the aggregate of all Losses suffered by the Purchaser Indemnified Parties exceeds, on a cumulative basis, an amount equal to indemnification hereunder [REDACTED] of the Purchase Price (but for the operation of this proviso“Indemnity Threshold”), exceed Three Hundred Thousand Dollars ($300,000, the "Threshold Amount") and then, Buyer Indemnified Parties then Sellers shall only be entitled to indemnification hereunder liable to the extent of any such excess. Other than for any Excluded Claim, Purchaser shall not be liable, pursuant to Section 8.2, for any Losses suffered by the Seller Indemnified Parties unless the aggregate of all Losses suffered by the Seller Indemnified Parties exceeds, on a cumulative basis, the Indemnity Threshold, and then Purchaser shall only be liable to the extent of any such excess. Notwithstanding any other provision of this Agreement to the contrary, other than for any Excluded Claim, no Indemnifying Party shall be required to indemnify, defend or hold harmless any Indemnified Party pursuant to this Article VIII against, or reimburse any Indemnified Party for, any Losses with respect to which indemnification is sought pursuant any individual claims unless such claim involves Losses in excess of [REDACTED] (nor shall such item be applied to or considered for purposes of calculating the Indemnity Threshold). For the purposes of this Article IX exceed the Threshold Amount. Notwithstanding the foregoingAgreement, Losses incurred“Excluded Claims” means, sustained or suffered by any Buyer Indemnified Party arising out of, resulting from or relating or incident with respect to any Purchaser Indemnified Party, claims for (i) Tax Indemnification, (ii) indemnification pursuant to Section 8.1(a)(i) in connection with the Retained Liabilities other than [REDACTED] (iii) indemnification pursuant to Section 8.1(a)(iii) in connection with breaches of Sellers’ Fundamental Representations, (iv) indemnification pursuant to Section 8.1(a)(v) in connection with [REDACTED] (v) indemnification pursuant to Section 8.1(a)(ii) and (vi) fraud or willful and intentional breach, and with respect to any Excluded Seller Indemnified Party, claims for (i) indemnification pursuant to Section 8.2(a)(i) in connection with any Assumed Liability, (ii) any Liability imposed upon any Buyer Indemnified Party by reason indemnification pursuant to Section 8.2(a)(iii) in connection with breaches of Buyer's or Dayton's alleged status as transferee or successor of the Subject Business or the Subject AssetsPurchaser’s Fundamental Representations, (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Sections 5.1.1 (Ownership of Stock; Authorization of Parent), 5.1.2 (Organization of Seller; Authorization) (other than the third and fourth sentences thereof, which representations will be subject indemnification pursuant to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.5 (Title to and Condition of Subject Assets) (other than the first, second and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.9 (Taxes), Section 5.1.13 (Employee Benefit Plans), Section 5.1.14 (Compliance with Environmental Laws), Section 5.1.22 (Liabilities) or Section 5.1.23 (No Other Agreements to Sell the Assets8.2(a)(ii) or (iv) any breachfraud or willful and intentional breach (each, non-fulfillment or non-performance of Section 8.5 hereof or the Transition Agreement (clauses (i) through (iv), the "Buyer Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in this Section 9.4(a) (all other Buyer Claims for which Buyer or Dayton is entitled to indemnification under Section 9.2, "Buyer Threshold Claims"an “Excluded Claim”).
(b) Except as set forth in the last sentence of this Section 9.4(b) with respect to Seller Non-Threshold Claims, neither Buyer nor Dayton shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by any Seller Indemnified Party for which they are entitled to indemnification, individually or in the aggregate, hereunder (but for the operation of this proviso), exceed the Threshold Amount and then, Seller Indemnified Parties shall only be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Seller Indemnified Party arising out of, resulting from or relating or incident to any breach, non-fulfillment or non-performance with respect to (i) any Assumed Liability, subject to the terms of Section 2.3, (ii) under the Promissory Note, or (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Section 7.1.1 (Organization) or Section 7.1.2 (Authorization) (clauses (i) through (iii), the "Seller Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in the first sentence of this Section 9.4(b) (all other Seller Claims for which Seller or Parent is entitled to indemnification under Section 9.3, "Seller Threshold Claims").
Appears in 1 contract
Sources: Asset Purchase Agreement (Concordia Healthcare Corp.)
Threshold. (aSellers shall not have any liability or obligation to the Buyer Indemnified Parties under Section 8.2(a)(i) Except as set forth in the last sentence of this Section 9.4(a) with respect to Buyer Non-Threshold Claims, neither Seller and Parent shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurredLosses, sustained in the aggregate, accrued pursuant to Section 8.2(a)(i) is equal to or suffered by any Buyer Indemnified Party for which they are entitled to indemnification hereunder greater than $2,000,000 (but for the operation of this proviso“Indemnity Threshold”); provided, exceed Three Hundred Thousand Dollars ($300,000, the "Threshold Amount") and then, Buyer Indemnified Parties shall only be entitled to indemnification hereunder to the extent such Losses however that with respect to which indemnification any individual item under Section 8.2(a)(i) without aggregation with any other related or similar item where the Loss relating to such item or series of related items (excluding attorneys’ fees) is sought less than $10,000, such amounts shall not be taken into account for the purposes of determining the Indemnity Threshold. For purposes of determining the failure of any representations or warranties to be true and correct, the breach of any covenants, and calculating Losses under this Article 8, any materiality or Material Adverse Effect qualifications in the representations and warranties shall be disregarded. Once the aggregate amount of all Losses accrued pursuant to this Article IX Section 8.2(a)(i) equal or exceed the Threshold AmountIndemnity Threshold, Sellers shall be liable for only those Losses in excess of the Indemnity Threshold, subject to the terms and conditions of this Agreement and up to the limitations of Section 8.2(e)(ii). Notwithstanding the foregoing, the Indemnity Threshold shall not apply to any Losses incurred, sustained arising out of a breach of an Excluded Representation. Sellers shall not have any liability or suffered by any obligation to the Buyer Indemnified Party arising out of, resulting from or relating or incident to any (iParties for the Tax matters addressed as Covered Matters in Schedule 8.2(a) any Excluded Liability, (ii) any Liability imposed upon any Buyer Indemnified Party by reason of Buyer's or Dayton's alleged status as transferee or successor of the Subject Business or the Subject Assets, (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Sections 5.1.1 (Ownership of Stock; Authorization of Parent), 5.1.2 (Organization of Seller; Authorization) (other than the third and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.5 (Title to and Condition of Subject Assets) (other than the first, second and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.9 (Taxes), Section 5.1.13 (Employee Benefit Plans), Section 5.1.14 (Compliance with Environmental Laws), Section 5.1.22 (Liabilities) or Section 5.1.23 (No Other Agreements to Sell the Assets) or (iv) any breach, non-fulfillment or non-performance of Section 8.5 hereof or the Transition Agreement (clauses (i) through (iv), the "Buyer Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in this Section 9.4(a) (all other Buyer Claims for which Buyer or Dayton is entitled to indemnification under Section 9.2, "Buyer Threshold Claims").
(b) Except as set forth in the last sentence of this Section 9.4(b) with respect to Seller Non-Threshold Claims, neither Buyer nor Dayton shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurredLosses, sustained or suffered by any Seller Indemnified Party for which they are entitled to indemnification, individually or in the aggregate, hereunder (but pertaining to such Covered Matters is equal to or greater than $100,000. Once the aggregate amount of all Losses pertaining to such Tax matters equals or exceeds $100,000, Sellers shall be liable for the operation only those Losses in excess of this proviso), exceed the Threshold Amount and then, Seller Indemnified Parties shall only be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Seller Indemnified Party arising out of, resulting from or relating or incident to any breach, non-fulfillment or non-performance with respect to (i) any Assumed Liability$100,000, subject to the terms and conditions of this Agreement and up to the limitations of Section 2.3, (ii) under the Promissory Note, or (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Section 7.1.1 (Organization) or Section 7.1.2 (Authorization) (clauses (i) through (iii), the "Seller Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in the first sentence of this Section 9.4(b) (all other Seller Claims for which Seller or Parent is entitled to indemnification under Section 9.3, "Seller Threshold Claims"8.2(e)(ii).
Appears in 1 contract
Threshold. (a) Except as Subject to the other limitations set forth in the last sentence of this Agreement, including this Section 9.4(a7.2, no amount shall be payable by any Indemnifying Party pursuant to, under, relating to or in connection with Section 7.1(a)(i) unless and until the aggregate amount of all Losses otherwise payable in connection with respect such breach exceeds an amount equal to Buyer Non-Threshold Claims$145,000 (the “Threshold”), neither Seller and Parent after which the Indemnifying Party shall be liable for all Losses and not just those Losses that are in excess of the Threshold; provided, that the foregoing limitation shall not apply in respect of any Losses relating to (y) any breach of or inaccuracy in any Fundamental Representation, or (z) any intentional or fraudulent breaches of any representations or warranties. With respect to any claim any GTY Party may be entitled to indemnification claimspursuant to Section 7.1(a)(i), individually or other than with respect to the Fundamental Representations, no amount shall by payable by any Indemnifying Party unless and until such amounts, in the aggregate, hereunder unless exceed $25,000. TABLE OF CONTENTS (c) Liability Cap. $2,900,000 shall serve as the maximum liability of any Indemnifying Party which may be recovered from the Indemnifying Party pursuant to, under, relating to or in connection with Section 7.1(a)(i); provided, that the foregoing limitation shall not apply in respect of any Losses (and until the amount of Losses incurred, sustained or suffered by any Buyer Indemnified Party for which they are entitled to indemnification hereunder (but for the operation of this proviso), exceed Three Hundred Thousand Dollars ($300,000, the "Threshold Amount") and then, Buyer Indemnified Parties shall only be entitled to indemnification hereunder to the extent such Losses with respect shall not reduce the foregoing limitation) relating to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Buyer Indemnified Party arising out of, resulting from or relating or incident to any (i) any Excluded Liabilitybreach of or inaccuracy in any Fundamental Representation (in which case liability will be capped at the total amount of the Merger Consideration), (ii) any Liability imposed upon any Buyer Indemnified Party by reason of Buyer's intentional or Dayton's alleged status as transferee or successor of the Subject Business or the Subject Assets, (iii) any inaccuracy, misrepresentation or breach fraudulent breaches of any representation representations or warranty under Sections 5.1.1 (Ownership of Stock; Authorization of Parent), 5.1.2 (Organization of Seller; Authorization) (other than the third and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.5 (Title to and Condition of Subject Assets) (other than the first, second and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.9 (Taxes), Section 5.1.13 (Employee Benefit Plans), Section 5.1.14 (Compliance with Environmental Laws), Section 5.1.22 (Liabilities) or Section 5.1.23 (No Other Agreements to Sell the Assets) or (iv) any breach, non-fulfillment or non-performance of Section 8.5 hereof or the Transition Agreement (clauses (i) through (iv), the "Buyer Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in this Section 9.4(a) (all other Buyer Claims for which Buyer or Dayton is entitled to indemnification under Section 9.2, "Buyer Threshold Claims").
(b) Except as set forth in the last sentence of this Section 9.4(b) with respect to Seller Non-Threshold Claims, neither Buyer nor Dayton shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by any Seller Indemnified Party for which they are entitled to indemnification, individually or in the aggregate, hereunder (but for the operation of this proviso), exceed the Threshold Amount and then, Seller Indemnified Parties shall only be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Seller Indemnified Party arising out of, resulting from or relating or incident to any breach, non-fulfillment or non-performance with respect to (i) any Assumed Liability, subject to the terms of Section 2.3, (ii) under the Promissory Note, warranties or (iii) any inaccuracy, misrepresentation or breach of or inaccuracy in any representation or warranty of the representations and warranties set forth in Section 2.11, in which case the maximum liability of any Indemnifying Party under Section 7.1.1 (Organization) or Section 7.1.2 (Authorization) (clauses (i) through this clause (iii), the "Seller Non-Threshold Claims") shall be due $4,350,000 (which limitation shall not be reduced by any Losses recovered hereunder except for Losses relating to a breach of or inaccuracy of the representations and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount warranties set forth in Section 2.11). In no event will any OC Holder be liable to the first sentence GTY Indemnitees for any amounts in excess of this Section 9.4(b) the portion of the Merger Consideration actually received by, or in the case of any escrowed amounts hereunder, allocated to, such OC Holder (all other Seller Claims for which Seller except with respect to fraud or Parent is entitled to indemnification under Section 9.3, "Seller Threshold Claims"intentional misrepresentation committed by such OC Holder).
Appears in 1 contract
Sources: Agreement and Plan of Merger (GTY Technology Holdings Inc.)
Threshold. (a) Except Subject to Section 11.3(b), the Selling Shareholders shall not be required to make any indemnification payment pursuant to Section 11.2 until such time as set forth the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise become subject, exceeds the amount equal to the positive Working Capital as shown in the last sentence of this Section 9.4(a) with respect to Buyer Non-Threshold ClaimsAudited Balance Sheet, neither Seller and Parent shall be liable for indemnification claimsif any, individually or in (the aggregate, hereunder unless and until "Deductible"). At such time as the total amount of Losses incurred, sustained or suffered by any Buyer Indemnified Party for which they are entitled to indemnification hereunder (but for Damages exceeds the operation of this proviso), exceed Three Hundred Thousand Dollars ($300,000Deductible, the "Threshold Amount") and then, Buyer Indemnified Parties Indemnitees shall only be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by be indemnified against any Buyer Indemnified Party arising out of, resulting from or relating or incident to any (i) any Excluded Liability, (ii) any Liability imposed upon any Buyer Indemnified Party by reason of Buyer's or Dayton's alleged status as transferee or successor Damages in excess of the Subject Business or the Subject Assets, (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Sections 5.1.1 (Ownership of Stock; Authorization of Parent), 5.1.2 (Organization of Seller; Authorization) (other than the third and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.5 (Title to and Condition of Subject Assets) (other than the first, second and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.9 (Taxes), Section 5.1.13 (Employee Benefit Plans), Section 5.1.14 (Compliance with Environmental Laws), Section 5.1.22 (Liabilities) or Section 5.1.23 (No Other Agreements to Sell the Assets) or (iv) any breach, non-fulfillment or non-performance of Section 8.5 hereof or the Transition Agreement (clauses (i) through (iv), the "Buyer Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in this Section 9.4(a) (all other Buyer Claims for which Buyer or Dayton is entitled to indemnification under Section 9.2, "Buyer Threshold Claims")Deductible.
(b) Except as The limitation on the Selling Shareholders' indemnification obligations that is set forth in the last sentence of this Section 9.4(bSections 11.3(a) with respect to Seller Non-Threshold Claims, neither Buyer nor Dayton and 11.7 shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by any Seller Indemnified Party for which they are entitled to indemnification, individually or in the aggregate, hereunder (but for the operation of this proviso), exceed the Threshold Amount and then, Seller Indemnified Parties shall only be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Seller Indemnified Party arising out of, resulting from or relating or incident to any breach, non-fulfillment or non-performance with respect not apply to (i) any Assumed LiabilityBreach of any of the Specified Representations, subject to the terms of Section 2.3, or (ii) any act or omission ruled by a non-appealable judgment to have been fraud by Havoc or any of the Selling Shareholders in connection with the Transaction. In no event shall any Selling Shareholder's liability for the Specified Representations exceed its or his pro rata share of the Purchase Price and the then fair market value of the AEND Shares. A Selling Shareholder can satisfy this obligation by delivery of his or its pro rata share of the Purchase Price and the AEND Shares. To the extent that a Selling Shareholder does not deliver AEND Shares, then his or its liability under the Promissory Note, or (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Section 7.1.1 (Organization) or Section 7.1.2 (Authorization) (clauses (i) through (iii), the "Seller Non-Threshold Claims") this subsection shall be due and payable immediately subject limited to and in accordance with his or its pro rata share of the terms hereof without Purchase Price plus the necessity fair market value of meeting the AEND Shares he or exceeding it still owns plus the Threshold Amount set forth in proceeds received by the first sentence Selling Shareholder from the sale of this Section 9.4(b) (all other Seller Claims for which Seller such AEND Shares, net of brokerage or Parent is entitled to indemnification under Section 9.3, "Seller Threshold Claims")underwriting commissions only.
Appears in 1 contract
Sources: Stock Exchange Agreement (American Enterprise Development Corp)
Threshold. (a) Except Subject to Section 9.4(b), the Company shall not be required to make any indemnification payment pursuant to Sections 9.2(a)(i), 9.2(a)(ii) or 9.2(a)(iii) for any Breach as set forth in such Section until such time as the last sentence total amount of this Section 9.4(aall Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) with respect that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to Buyer Non-Threshold Claimswhich any one or more of the Indemnitees has or have otherwise become subject, neither Seller and Parent shall be liable for indemnification claims, individually or exceeds Fifty Thousand Dollars ($50,000.00) in the aggregate. At such time as the total amount of such Damages exceeds Fifty Thousand Dollars ($50,000.00) in the aggregate, hereunder unless and until the Indemnitees shall be entitled to be indemnified against the full amount of Losses incurred, sustained or suffered by any Buyer Indemnified Party for which they are entitled to indemnification hereunder such Damages (but for and not merely the operation portion of this proviso), exceed Three Hundred such Damages exceeding Fifty Thousand Dollars ($300,00050,000.00).
(b) The Parent or Surviving Corporation shall not be required to make any indemnification payment pursuant to Section 9.3 for any Breach as set forth in such Section until such time as the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Company Indemnitees, or to which any one or more of the Company Indemnitees has or have otherwise become subject, exceeds Fifty Thousand Dollars ($50,000.00) in the aggregate. At such time as the total amount of such Damages exceeds Fifty Thousand Dollars ($50,000.00) in the aggregate, the "Threshold Amount") and then, Buyer Indemnified Parties Indemnitees shall only be entitled to be indemnified against the full amount of such Damages (and not merely the portion of such Damages exceeding Fifty Thousand Dollars ($50,000.00). The limitations on the Parent’s indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Buyer Indemnified Party arising out of, resulting from or relating or incident to any (i) any Excluded Liability, (ii) any Liability imposed upon any Buyer Indemnified Party by reason of Buyer's or Dayton's alleged status as transferee or successor of the Subject Business or the Subject Assets, (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Sections 5.1.1 (Ownership of Stock; Authorization of Parent), 5.1.2 (Organization of Seller; Authorization) (other than the third and fourth sentences thereof, which representations will be subject to the Threshold Amount obligations that are set forth in the first sentence of this Section 9.4(a)), Section 5.1.5 (Title 9 shall not apply to and Condition of Subject Assets) (other than the first, second and fourth sentences thereof, which representations will be subject any Breach relating to the Threshold Amount set forth in payment of the first sentence of this Section 9.4(a)), Section 5.1.9 Purchase Price by Parent.
(Taxes), Section 5.1.13 (Employee Benefit Plans), Section 5.1.14 (Compliance with Environmental Laws), Section 5.1.22 (Liabilitiesc) or Section 5.1.23 (No Other Agreements to Sell The limitations on the Assets) or (iv) any breach, non-fulfillment or non-performance of Section 8.5 hereof or the Transition Agreement (clauses (i) through (iv), the "Buyer Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount Company’s indemnification obligations that are set forth in this Section 9.4(a) shall not apply to (all other Buyer Claims i) any Breach of any of the Specified Representations, or (ii) any Breach arising directly or indirectly from any circumstance of which the Company had Knowledge on or prior to the Closing Date or (iii) any Specific Indemnity Liability. None of the limitations on the Company’s indemnification obligations that are set forth in this Section 9 shall apply to, or in any manner limit the rights and remedies of the Parent and the Surviving Corporation with respect to, any Breach based on any fraudulent (excluding any claims of so –called “negligent fraud”) or any criminal act or conduct of a material nature of the Company or any Stockholder (the “Fraud Claims”).
(d) Notwithstanding anything to the contrary, in the event of any Damages for which Buyer or Dayton is any Indemnitee would be entitled to indemnification, no Indemnitee shall be entitled to indemnification under Section 9.2, "Buyer Threshold Claims").
(b) Except as set forth 9.2 to the extent that such Damages are specifically included in the last sentence of Final Closing Date Balance Sheet. For example, if on February 28, 2010, an Indemnitee incurs $75,000 in Damages arising from a matter for which such Indemnitee would be entitled to indemnity under this Section 9.4(b9.2 and such $75,000, or portion thereof, was expensed or booked as a Liability on the Final Closing Date Balance Sheet, thereby reducing the Closing Date Net Working Capital of the Company for purposes of determining the adjustment pursuant to Section 1.6(f) with respect to Seller Non-Threshold Claimshereof, neither Buyer nor Dayton shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by any Seller Indemnified Party for which they are entitled to indemnification, individually or in the aggregate, hereunder (but for the operation of this proviso), exceed the Threshold Amount and then, Seller Indemnified Parties shall only then such Indemnitee would not be entitled to indemnification hereunder under this Agreement for such $75,000, or applicable portion thereof, in Damages. Subject to any Fraud Claims, the Stockholders shall not be liable in any manner under this Agreement, and the Indemnitees shall look solely to an offset against the Escrow Funds in accordance with Section 9.2 hereof.
(e) Subject to any Fraud Claims, the maximum liability to the extent such Losses with respect to which indemnification is sought Indemnitees, pursuant to this Article IX exceed Agreement, shall be limited to the Threshold Amountremaining funds, if any, contained in the Escrow Funds or the Microsoft Escrow Funds, as applicable. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Seller Indemnified Party arising out of, resulting from or relating or incident Subject to any breachFraud Claims, non-fulfillment or non-performance with respect to (i) any Assumed Liability, subject to the terms of Section 2.3, (ii) under the Promissory Note, or (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Section 7.1.1 (Organization) or Section 7.1.2 (Authorization) (clauses (i) through (iii), the "Seller Non-Threshold Claims") in no event shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in the first sentence of this Section 9.4(b) (all other Seller Claims for which Seller or Parent is entitled to indemnification under Section 9.3, "Seller Threshold Claims").any
Appears in 1 contract
Threshold. (a) Except Subject to Section 9.3(b), Foudy shall not be required to make any indemnification payment pursuant to Sections 9.2(a)(i) or 9.2(a)(iii) for any Breach as set forth in such Sections until such time as the last sentence total amount of this Section 9.4(aall Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) with respect that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to Buyer Non-Threshold Claimswhich any one or more of the Indemnitees has or have otherwise become subject, neither Seller and Parent shall be liable for indemnification claims, individually or exceeds $50,000.00 in the aggregate (the "Basket"). At such time as the total amount of such Damages exceeds $50,000.00 in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by any Buyer Indemnified Party for which they are entitled to indemnification hereunder (but for the operation of this proviso), exceed Three Hundred Thousand Dollars ($300,000, the "Threshold Amount") and then, Buyer Indemnified Parties Indemnitees shall only be entitled to be indemnified against the full amount of such Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to contrary contained herein, in no event shall the indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX obligations of Foudy exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Buyer Indemnified Party arising out of, resulting from or relating or incident to any (i) any Excluded Liability, (ii) any Liability imposed upon any Buyer Indemnified Party by reason of Buyer's or Dayton's alleged status as transferee or successor aggregate amount and value of the Subject Business or Closing Consideration, Escrow Fund, and Earnout Consideration received by all of the Subject AssetsSelling Stockholders, including, without limitation, Foudy (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Sections 5.1.1 (Ownership of Stock; Authorization of Parent), 5.1.2 (Organization of Seller; Authorization) (other than the third and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.5 (Title to and Condition of Subject Assets) (other than the first, second and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.9 (Taxes), Section 5.1.13 (Employee Benefit Plans), Section 5.1.14 (Compliance with Environmental Laws), Section 5.1.22 (Liabilities) or Section 5.1.23 (No Other Agreements to Sell the Assets) or (iv) any breach, non-fulfillment or non-performance of Section 8.5 hereof or the Transition Agreement (clauses (i) through (iv), the "Buyer Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in this Section 9.4(a) (all other Buyer Claims for which Buyer or Dayton is entitled to indemnification under Section 9.2, "Buyer Threshold ClaimsIndemnity Limitation").
(b) Except as The Basket limitation set forth in the last sentence of this Section 9.4(b9.3(a) with respect to Seller Non-Threshold Claims, neither Buyer nor Dayton shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by any Seller Indemnified Party for which they are entitled to indemnification, individually or in the aggregate, hereunder (but for the operation of this proviso), exceed the Threshold Amount and then, Seller Indemnified Parties shall only be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Seller Indemnified Party arising out of, resulting from or relating or incident to any breach, non-fulfillment or non-performance with respect not apply to (i) any Assumed LiabilityBreach of any of the Specified Representations, subject to the terms of Section 2.3, or (ii) under any Breach arising directly or indirectly from any circumstance of which the Promissory NoteCompany or any of the Selling Stockholders had Knowledge on or prior to the Closing Date, or (iii) any inaccuracyBreach based on any acts or misconduct of the Company and one or more of the Selling Stockholders, with an intent to defraud or to make a willful, intentional or reckless misrepresentation or breach willful omission of any representation a material fact in connection with this Agreement and the transactions contemplated hereby or warranty under Section 7.1.1 thereby (Organization) or Section 7.1.2 (Authorization) (clauses (i) through (iii"Fraud Claims"), the "Seller Non-Threshold Claims"or (iv) shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount any Specific Indemnity Liability. The Indemnity Limitation set forth in Section 9.3(a) shall not apply to any Fraud Claims.
(c) The Purchaser shall not be required to make any indemnification payment pursuant to Section 9.6 for any Breach as set forth in such Section until such time as the first sentence total amount of this Section 9.4(b) all Damages (including the Damaged arising from such Breach and all other Seller Claims for Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by the Selling Stockholder, or to which Seller any one or Parent is more of the Selling Stockholders has or have otherwise become subject, exceeds $50,000.00 in the aggregate. At such time as the total amount of such Damages exceeds $50,000.00 in the aggregate, the Selling Stockholders shall be entitled to be indemnified against the full amount of such Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to the contrary contained herein, in no event shall the indemnification obligations of the Purchaser, with respect to each Selling Stockholder, exceed the aggregate amount and value of the Closing Consideration, Escrow Fund, Closing Shares and Earnout Consideration received by such Selling Stockholder.
(d) In the event that the Indemnitees are entitled to indemnification under Section 9.3for Damages from the Selling Stockholders, "Seller Threshold Claims"Foudy shall satisfy any such claim for Damages with cash, until the aggregate cash portion of the Indemnity Limitation (consisting of the Upfront Consideration, the cash portion of the Escrow Fund, and any Cash Consideration (as defined in the Earnout Agreement)) has been reached. Upon satisfaction of the aggregate cash portion of the Indemnity Limitation, any remaining Damages incurred by the Purchaser shall be satisfied by Foudy's Closing Shares and/or Earnout Shares; provided, however, with respect to Foudy's indemnification obligations only, during the period in which the Closing Shares or the Earnout Shares are subject to any restrictions contained in the Lockup Agreement, the value of each Closing Share or Earnout Share shall be equal to the value of each Closing Share or Earnout Share as of the date of Foudy's receipt regardless of the actual value of each Closing Share or Earnout Share as of the date of the claim.
Appears in 1 contract
Sources: Stock Purchase Agreement (Edgewater Technology Inc/De/)
Threshold. (a) Except as set forth Anything contained in Article VII to the last sentence of contrary notwithstanding, the Parent Indemnified Persons shall not be entitled to indemnification pursuant to this Section 9.4(a) Article VII with respect to Buyer Non-Threshold Claims, neither Seller and any Parent shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and Losses until the aggregate amount of such Parent Losses incurred, sustained or suffered by any Buyer Indemnified Party for which they are entitled to indemnification hereunder exceeds $50,000 (but for the operation of this proviso), exceed Three Hundred Thousand Dollars ($300,000, the "Threshold Amount") (other than any Parent Losses arising out of or in connection with the representations and thenwarranties contained in Section 2.13 hereof which shall not be subject to such Threshold Amount), Buyer whereupon the Parent Indemnified Parties Persons shall only be entitled to indemnification hereunder to the extent such for all Parent Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Buyer Indemnified Party arising out of, resulting from or relating or incident to any (i) any Excluded Liability, (ii) any Liability imposed upon any Buyer Indemnified Party by reason in excess of Buyer's or Dayton's alleged status as transferee or successor of the Subject Business or the Subject Assets, (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Sections 5.1.1 (Ownership of Stock; Authorization of Parent), 5.1.2 (Organization of Seller; Authorization) (other than the third and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in up to $21,000,000 (the first sentence "Indemnification Cap"); provided, -------- however, that if the Parent Indemnifying Persons shall have delivered all of this Section 9.4(a)), Section 5.1.5 the ------- Purchaser Shares (Title to and Condition of Subject Assetsand/or any cash proceeds received from the sale thereof) (other than the first, second and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Parent Indemnified Persons pursuant to Section 9.4(a)), Section 5.1.9 (Taxes), Section 5.1.13 (Employee Benefit Plans), Section 5.1.14 (Compliance with Environmental Laws), Section 5.1.22 (Liabilities7.2(a) or Section 5.1.23 (No Other Agreements to Sell the Assets) or (iv) any breach, non-fulfillment or non-performance of Section 8.5 hereof or the Transition Agreement (clauses (i) through (iv)hereof, the "Buyer Non-Threshold Claims") Indemnification Cap shall be due reduced to an amount equal to the aggregate Fair Market Value of the cash and payable immediately subject to and Purchaser Shares (determined in accordance with Section 7.2(a)(iv)) delivered to the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in this Parent Indemnified Persons pursuant to Section 9.4(a7.2(a) (all other Buyer Claims for which Buyer or Dayton is entitled to indemnification under Section 9.2, "Buyer Threshold Claims")hereof.
(b) Except as set forth Anything contained in Article VII to the last sentence of this Section 9.4(b) with respect to Seller Non-Threshold Claimscontrary notwithstanding, neither Buyer nor Dayton the Sole Shareholder shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by any Seller Indemnified Party for which they are entitled to indemnification, individually or in the aggregate, hereunder (but for the operation of this proviso), exceed the Threshold Amount and then, Seller Indemnified Parties shall only not be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed VII with respect to any Sole Shareholder Losses until the aggregate amount of such Sole Shareholder Losses exceeds the Threshold Amount. Notwithstanding , whereupon the foregoing, Sole Shareholder shall be entitled to indemnification for all Sole Shareholder Losses incurred, sustained or suffered by any Seller Indemnified Party arising out of, resulting from or relating or incident to any breach, non-fulfillment or non-performance with respect to (i) any Assumed Liability, subject in excess of the Threshold Amount up to the terms Indemnification Cap; provided, however, that if the Parent Indemnifying Persons -------- ------- shall have delivered all of the Purchaser Shares (and/or any cash proceeds received from the sale thereof) to the Parent Indemnified Persons pursuant to Section 2.3, (ii7.2(a) under the Promissory Note, or (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Section 7.1.1 (Organization) or Section 7.1.2 (Authorization) (clauses (i) through (iii)hereof, the "Seller Non-Threshold Claims") Indemnification Cap shall be due reduced to an amount equal to the aggregate Fair Market Value of the cash and payable immediately subject to and Purchaser Shares (determined in accordance with Section 7.2(a)(iv)) delivered to the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in the first sentence of this Parent Indemnified Persons pursuant to Section 9.4(b7.2(a) (all other Seller Claims for which Seller or Parent is entitled to indemnification under Section 9.3, "Seller Threshold Claims")hereof.
Appears in 1 contract
Threshold. (aNotwithstanding any other provision in this Agreement to the contrary, no indemnification claims may be asserted by any party pursuant to Section 10.1(a) Except as set forth in the last sentence or Section 10.2(a) of this Section 9.4(a) with respect to Buyer Non-Threshold Claims, neither Seller and Parent shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and Agreement until the aggregate amount of Losses incurredall such indemnification claims of the Methode Indemnified Parties, sustained on one hand, or suffered by any Buyer Gemtron Indemnified Party for which they are entitled to indemnification hereunder (but for Parties on the operation of this proviso)other hand, exceed Three exceeds Five Hundred Thousand Dollars ($300,000, 500,000) in the "aggregate (the “Aggregate Threshold Amount") and then”), Buyer Indemnified Parties at which time the party seeking indemnification shall only be entitled to assert all individual indemnification hereunder to claims or groups of related claims that exceed Twenty-Five Thousand Dollars ($25,000) (the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the “Individual Threshold Amount. Notwithstanding ”) in excess of the foregoingAggregate Threshold Amount; provided that Claims relating to indemnification claims based upon Sections 10.1(b) through (d), Losses incurred, sustained or suffered by any Buyer Indemnified Party arising out of, resulting from or relating or incident to any Sections 10.2(b) through (i) any Excluded Liability), (ii) any Liability imposed Section 10.3 and Claims relating to indemnification claims based upon any Buyer Indemnified Party by reason of Buyer's or Dayton's alleged status as transferee or successor a breach of the Subject Business or the Subject Assets, representations and warranties set forth in Sections 4.3 (iiiStock Ownership) any inaccuracy, misrepresentation or breach and 4.5 (Capitalization) of any representation or warranty under Sections 5.1.1 (Ownership of Stock; Authorization of Parent), 5.1.2 (Organization of Seller; Authorization) (other than the third and fourth sentences thereof, which representations will this Agreement shall be subject to the Individual Threshold Amount set forth in the first sentence of this Section 9.4(a))Amount, Section 5.1.5 (Title to and Condition of Subject Assets) (other than the first, second and fourth sentences thereof, which representations will but not be subject to the Aggregate Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.9 (Taxes), Section 5.1.13 (Employee Benefit Plans), Section 5.1.14 (Compliance with Environmental Laws), Section 5.1.22 (Liabilities) or Section 5.1.23 (No Other Agreements to Sell the Assets) or (iv) any breach, non-fulfillment or non-performance of Section 8.5 hereof or the Transition Agreement (clauses Amount; provided further that (i) through no indemnification claims may be asserted by Methode Indemnified Parties pursuant to Section 10.1(h) until the aggregate amount of such Claims exceeds Fifty Thousand Dollars (iv), the "Buyer Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in this Section 9.4(a$50,000) (all other Buyer Claims for which Buyer or Dayton is entitled to indemnification under Section 9.2, "Buyer the “Special Threshold Claims").
(bAmount”) Except as set forth in the last sentence of this Section 9.4(b) with respect to Seller Non-Threshold Claimsaggregate, neither Buyer nor Dayton after which Gemtron shall be liable for indemnification claimsall such Claims regardless of the Individual Threshold Amount or the Aggregate Threshold Amount, individually or in the aggregate, hereunder unless and until (ii) the amount of Losses incurred, sustained or suffered any Claims asserted by any Seller Indemnified Party for which they are entitled to indemnification, individually or in the aggregate, hereunder (but for the operation of this proviso), exceed the Threshold Amount and then, Seller Methode Indemnified Parties shall only be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Seller Indemnified Party arising out of, resulting from or relating or incident to any breach, non-fulfillment or non-performance with respect to (i) any Assumed Liability, subject to the terms of Section 2.3, (ii) under the Promissory Note, or (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Section 7.1.1 (Organization) or Section 7.1.2 (Authorization) (clauses (i) through (iii), the "Seller Non-Threshold Claims"10.1(h) shall be due and payable immediately subject added to and in accordance with the terms hereof without amount of any Claims pursuant to Section 10.2(a) for purposes of satisfying the necessity of meeting or exceeding the Aggregate Threshold Amount set forth in the first sentence of this Section 9.4(b) (all other Seller Claims for which Seller or Parent is entitled to indemnification under Section 9.3, "Seller Threshold Claims")Amount.
Appears in 1 contract
Sources: Securities Purchase Agreement (Methode Electronics Inc)
Threshold. Anything to the contrary contained herein notwithstanding, (ai) Except as set forth in the last sentence of this Section 9.4(a) Company Stockholders shall not be obligated to indemnify the Indemnified Parties with respect to Buyer Non-Threshold Claims, neither Seller and Parent shall be liable any claim for indemnification claims, individually resulting from or arising out of matters described in the aggregate, hereunder Section 8.2 unless and until the aggregate amount of Losses incurredall such claims exceeds $1,750,000 (the “Primary Threshold”) (provided, sustained that such threshold for any claim for indemnification resulting from or suffered by any Buyer Indemnified Party for which they are entitled to indemnification hereunder arising out of matters described in the Second Special Indemnity Sections (but for other than the operation of this provisoClause (xii) Special Indemnity Matter) shall be $250,000 (the “Secondary Threshold”)), exceed Three Hundred Thousand Dollars ($300,000, in which event the "Threshold Amount") and then, Buyer Indemnified Parties shall only be entitled to recover the full amount of Damages (including any amounts of Damages within the Primary Threshold or Secondary Threshold, as applicable) resulting from or arising out of such matters in accordance with this Section 8, and (ii) no individual claim for indemnification hereunder to resulting from or arising out of matters described in Section 8.2 shall be counted towards the extent Primary Threshold or the Secondary Threshold unless and until the aggregate amount of such Losses claim exceeds $5,000 (the “Per Claim Threshold”), in which event the full amount of Damages with respect to which indemnification is sought pursuant to this Article IX exceed such claim shall count towards the Primary Threshold Amountor the Secondary Threshold, as applicable. Notwithstanding anything to the foregoingcontrary in this Section 8.6(c), Losses incurredthe Primary Threshold, sustained or suffered Secondary Threshold and Per Claim Threshold limits imposed by any Buyer Indemnified Party arising out of, resulting from or relating or incident this Section 8.6(c) shall not apply to any Damages (i) indemnifiable under Section 8.2(a)(i) solely with respect to any Excluded LiabilityFundamental Representation or Second Level Representation, (ii) indemnifiable under Section 8.2(a)(iv) solely with respect to claims brought by or on behalf of any Liability imposed upon any Buyer Indemnified Party by reason of Buyer's or Dayton's alleged status as transferee or successor individual listed in Section 2.2(a) of the Subject Business or Disclosure Schedule under the Subject Assetsheading “Promised but Ungranted Options”, (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Sections 5.1.1 (Ownership of Stock; Authorization of Parent), 5.1.2 (Organization of Seller; Authorization) (other than the third and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)8.2(a)(viii), Section 5.1.5 (Title to and Condition of Subject Assets) (other than the first, second and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.9 (Taxes), Section 5.1.13 (Employee Benefit Plans), Section 5.1.14 (Compliance with Environmental Laws), Section 5.1.22 (Liabilities8.2(a)(ix)(a) or Section 5.1.23 (No Other Agreements to Sell the Assets) or (iv) any breach, non-fulfillment or non-performance of Section 8.5 hereof or the Transition Agreement (clauses (i) through (iv), the "Buyer Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in this Section 9.4(a) (all other Buyer Claims for which Buyer or Dayton is entitled to indemnification under Section 9.2, "Buyer Threshold Claims").
(b) Except as set forth in the last sentence of this Section 9.4(b) with respect to Seller Non-Threshold Claims, neither Buyer nor Dayton shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by any Seller Indemnified Party for which they are entitled to indemnification, individually or in the aggregate, hereunder (but for the operation of this proviso), exceed the Threshold Amount and then, Seller Indemnified Parties shall only be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Seller Indemnified Party arising out of, resulting from or relating or incident to any breach, non-fulfillment or non-performance with respect to (i) any Assumed Liability, subject to the terms of Section 2.3, (ii) under the Promissory NoteFirst Special Indemnity Section, or (iii) arising out of or in connection with any inaccuracy, misrepresentation or breach of any representation or warranty under Section 7.1.1 (Organization) or Section 7.1.2 (Authorization) (clauses (i) through (iii), the "Seller Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in the first sentence of this Section 9.4(b) (all other Seller Claims for which Seller or Parent is entitled to indemnification under Section 9.3, "Seller Threshold Claims")Fraud.
Appears in 1 contract
Sources: Merger Agreement (LogMeIn, Inc.)
Threshold. The Participating Rights Holders and the Founders will not be required to indemnify any Holdco Indemnitee pursuant to Section 11.2(a): (ai) Except as set forth unless any claim or series of related claims involves Damages in excess of $25,000 (the last sentence “Mini-Basket”) and if such Damages do not exceed the Mini-Basket, such Damages shall not be applied to or considered for the Threshold or otherwise for the purposes of this Section 9.4(a) with respect to Buyer Non-Threshold Claims, neither Seller and Parent shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until aggregating the amount of Losses Damages under this Section 11.5(a); and (ii) until such time as the aggregate amount of Damages under Section 11.2(a), actually paid or incurred, sustained or suffered by any Buyer Indemnified Party for which they the Holdco Indemnitees are otherwise entitled to indemnification hereunder pursuant to this Agreement exceeds $2,500,000 (but for the operation of this proviso“Threshold”), exceed Three Hundred Thousand Dollars ($300,000, at which time the "Threshold Amount") Participating Rights Holders and then, Buyer Indemnified Parties the Founders shall only be entitled obligated to indemnification hereunder indemnify the Holdco Indemnitees for any Damages under Section 11.2(a) in excess of the Threshold. Notwithstanding anything to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Buyer Indemnified Party arising out of, resulting from or relating or incident to any (i) any Excluded Liability, (ii) any Liability imposed upon any Buyer Indemnified Party by reason of Buyer's or Dayton's alleged status as transferee or successor of the Subject Business or the Subject Assets, (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Sections 5.1.1 (Ownership of Stock; Authorization of Parent), 5.1.2 (Organization of Seller; Authorization) (other than the third and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.5 (Title to and Condition of Subject Assets) (other than the first, second and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.9 (Taxes), Section 5.1.13 (Employee Benefit Plans), Section 5.1.14 (Compliance with Environmental Laws), Section 5.1.22 (Liabilities) or Section 5.1.23 (No Other Agreements to Sell the Assets) or (iv) any breach, non-fulfillment or non-performance of Section 8.5 hereof or the Transition Agreement (clauses (i) through (iv), the "Buyer Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth contrary in this Section 9.4(a11.5, the threshold limits imposed by this Section 11.5(a) shall not apply to any Damages arising out of or in connection with (all other Buyer Claims A) any breach by Valor of any Special Representations, (B) any Special Claims, and (C) fraud. In addition, any Damages described in the foregoing sentence shall not count towards the Threshold for which Buyer purposes of determining whether the threshold limits have been exceeded. Notwithstanding anything to the contrary in this Agreement, in no event shall the Participating Rights Holders or Dayton is entitled the Founders be required to indemnification indemnify any Holdco Indemnitee under Section 9.2, "Buyer Threshold Claims").
(b11.2(a) Except as set forth in the last sentence of this Section 9.4(b) with respect to Seller Non-Threshold Claims, neither Buyer nor Dayton shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by any Seller Indemnified Party for which they are entitled to indemnification, individually or in the aggregate, hereunder (but for the operation of this proviso), exceed inability to utilize any Valor Tax Attribute in a Tax period (or portion thereof) after the Threshold Amount and then, Seller Indemnified Parties shall only be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Seller Indemnified Party arising out of, resulting from or relating or incident to any breach, non-fulfillment or non-performance with respect to (i) any Assumed Liability, subject to the terms of Section 2.3, (ii) under the Promissory Note, or (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Section 7.1.1 (Organization) or Section 7.1.2 (Authorization) (clauses (i) through (iii), the "Seller Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in the first sentence of this Section 9.4(b) (all other Seller Claims for which Seller or Parent is entitled to indemnification under Section 9.3, "Seller Threshold Claims")Closing Date.
Appears in 1 contract
Sources: Business Combination Agreement (HeartWare International, Inc.)
Threshold. (a) Except Subject to Section 11.3(b), the Selling Shareholders shall not be required to make any indemnification payment pursuant to Section 11.2 until such time as set forth the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise become subject, exceeds the amount equal to the positive Working Capital as shown in the last sentence of this Section 9.4(a) with respect to Buyer Non-Threshold ClaimsAudited Balance Sheet, neither Seller and Parent shall be liable for indemnification claimsif any, individually or in (the aggregate, hereunder unless and until "DEDUCTIBLE"). At such time as the total amount of Losses incurred, sustained or suffered by any Buyer Indemnified Party for which they are entitled to indemnification hereunder (but for Damages exceeds the operation of this proviso), exceed Three Hundred Thousand Dollars ($300,000Deductible, the "Threshold Amount") and then, Buyer Indemnified Parties Indemnitees shall only be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by be indemnified against any Buyer Indemnified Party arising out of, resulting from or relating or incident to any (i) any Excluded Liability, (ii) any Liability imposed upon any Buyer Indemnified Party by reason of Buyer's or Dayton's alleged status as transferee or successor Damages in excess of the Subject Business or the Subject Assets, (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Sections 5.1.1 (Ownership of Stock; Authorization of Parent), 5.1.2 (Organization of Seller; Authorization) (other than the third and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.5 (Title to and Condition of Subject Assets) (other than the first, second and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.9 (Taxes), Section 5.1.13 (Employee Benefit Plans), Section 5.1.14 (Compliance with Environmental Laws), Section 5.1.22 (Liabilities) or Section 5.1.23 (No Other Agreements to Sell the Assets) or (iv) any breach, non-fulfillment or non-performance of Section 8.5 hereof or the Transition Agreement (clauses (i) through (iv), the "Buyer Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in this Section 9.4(a) (all other Buyer Claims for which Buyer or Dayton is entitled to indemnification under Section 9.2, "Buyer Threshold Claims")Deductible.
(b) Except as The limitation on the Selling Shareholders' indemnification obligations that is set forth in the last sentence of this Section 9.4(bSections 11.3(a) with respect to Seller Non-Threshold Claims, neither Buyer nor Dayton and 11.7 shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by any Seller Indemnified Party for which they are entitled to indemnification, individually or in the aggregate, hereunder (but for the operation of this proviso), exceed the Threshold Amount and then, Seller Indemnified Parties shall only be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Seller Indemnified Party arising out of, resulting from or relating or incident to any breach, non-fulfillment or non-performance with respect not apply to (i) any Assumed LiabilityBreach of any of the Specified Representations, subject to the terms of Section 2.3, or (ii) any act or omission ruled by a non-appealable judgment to 47. have been fraud by Assist or any of the Selling Shareholders in connection with the Transaction. In no event shall any Selling Shareholder's liability for the Specified Representations exceed its or his pro rata share of the Purchase Price and the then fair market value of the Cayenta Shares. A Selling Shareholder can satisfy this obligation by delivery of his or its pro rata share of the Purchase Price and the Cayenta Shares. To the extent that a Selling Shareholder does not deliver Cayenta Shares, then his or its liability under the Promissory Note, or (iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Section 7.1.1 (Organization) or Section 7.1.2 (Authorization) (clauses (i) through (iii), the "Seller Non-Threshold Claims") this subsection shall be due and payable immediately subject limited to and in accordance with his or its pro rata share of the terms hereof without Purchase Price plus the necessity fair market value of meeting the Cayenta Shares he or exceeding it still owns plus the Threshold Amount set forth in proceeds received by the first sentence Selling Shareholder from the sale of this Section 9.4(b) (all other Seller Claims for which Seller such Cayenta Shares, net of brokerage or Parent is entitled to indemnification under Section 9.3, "Seller Threshold Claims")underwriting commissions only.
Appears in 1 contract
Sources: Stock Exchange and Stock Purchase Agreement (Cayenta Inc)
Threshold. No Indemnifying Party will be required to indemnify an Indemnified Party hereunder with respect to any Damages arising on account of or related to any breach of any of the Company Representations and Warranties or of any of the Cubist Representations and Warranties, as applicable, until such time as the aggregate amount of Damages for which (ai) Except as Cubist Indemnified Parties, on the one hand, or (ii) the Shareholders, on the other hand, are otherwise entitled to indemnification pursuant to this Section 4 exceeds $300,000 (the "Warranty Threshold"), whereupon such Indemnified Party will be entitled to indemnification for the full amount of all such Damages, without regard to such threshold amount. The foregoing provisions of this Section 4.5(b) shall not apply to any breach by the Company of the representation and warranty set forth in Section 2.15(h) of the last sentence of this Section 9.4(a) with respect to Buyer Non-Threshold ClaimsAcquisition Agreement, neither Seller and Parent the Shareholders shall be liable required to indemnify the Cubist Indemnified Parties for indemnification claims, individually or in Damages resulting from any such breach without regard to whether the aggregate, hereunder unless and until the amount of Losses incurred, sustained or aggregate Damages suffered by any Buyer Cubist Indemnified Party Parties for which they are otherwise entitled to indemnification hereunder (but have exceeded the Warranty Threshold. Any Damages for which the operation of this proviso), exceed Three Hundred Thousand Dollars ($300,000, the "Threshold Amount") and then, Buyer Shareholders have indemnified Cubist Indemnified Parties pursuant to the preceding sentence shall only not be counted in determining whether the aggregate amount of Damages suffered by Cubist Indemnified Parties for which they are otherwise entitled to indemnification hereunder exceeds the Warranty Threshold. Solely for the purpose of determining whether the aggregate number of Damages suffered by Cubist Indemnified Parties have at any time exceeded the Warranty Threshold, any requirement in the representation and warranty covered by the provisions of Section 2.15(h) that an event or fact be known to the extent Company (which is a condition to such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained event or suffered by any Buyer Indemnified Party arising out of, resulting from or relating or incident to any (i) any Excluded Liability, (ii) any Liability imposed upon any Buyer Indemnified Party by reason of Buyer's or Dayton's alleged status as transferee or successor of the Subject Business or the Subject Assets, (iii) any inaccuracy, fact constituting a misrepresentation or breach of any such representation or and warranty under Sections 5.1.1 (Ownership of Stock; Authorization of Parent), 5.1.2 (Organization of Seller; Authorization) (other than the third and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.5 (Title to and Condition of Subject Assets) (other than the first, second and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.9 (Taxes), Section 5.1.13 (Employee Benefit Plans), Section 5.1.14 (Compliance with Environmental Laws), Section 5.1.22 (Liabilities) or Section 5.1.23 (No Other Agreements to Sell the Assets) or (iv) any breach, non-fulfillment or non-performance of Section 8.5 hereof or the Transition Agreement (clauses (i) through (iv), the "Buyer Non-Threshold ClaimsKnowledge Qualifier")) shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in this Section 9.4(a) (all other Buyer Claims for which Buyer or Dayton is entitled to indemnification under Section 9.2, "Buyer Threshold Claims").
(b) Except as set forth in the last sentence of this Section 9.4(b) with respect to Seller Non-Threshold Claims, neither Buyer nor Dayton shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by any Seller Indemnified Party for which they are entitled to indemnification, individually or in the aggregate, hereunder (but for the operation of this proviso), exceed the Threshold Amount and then, Seller Indemnified Parties shall only be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amountignored. Notwithstanding the foregoingprovisions of the immediately preceding sentence, Losses incurred, sustained or suffered by any Seller Indemnified Party arising out of, resulting from or relating or incident the Knowledge Qualifier in Section 2.15(h) shall at all times continue to any breach, non-fulfillment or non-performance with respect to (i) any Assumed Liability, subject to the terms of Section 2.3, (ii) under the Promissory Note, or (iii) any inaccuracy, be applicable in determining whether in fact there has been a misrepresentation or breach of any representation or warranty under Section 7.1.1 (Organization2.15(h) or Section 7.1.2 (Authorization) (clauses (i) through (iii), such that it would give rise to a Claim and the "Seller Non-Threshold Claims") shall be due and payable immediately subject corresponding obligation of the Shareholders to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in the first sentence of this Section 9.4(b) (all other Seller Claims for which Seller or Parent is entitled to indemnification under Section 9.3, "Seller Threshold Claims")indemnify Cubist therefor.
Appears in 1 contract
Threshold. (a) Except as set forth in the last sentence of this Section 9.4(a) with respect to Buyer Non-Threshold Claims, neither Seller and Parent shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by any Buyer Indemnified Party for which they are entitled to indemnification hereunder (but for the operation of this proviso), exceed Three Hundred Thousand Dollars ($300,000, the "Threshold Amount") and then, Buyer Indemnified Parties shall only be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Buyer Indemnified Party arising out of, resulting from or relating or incident to any (i) The Sellers shall not be required to indemnify any Excluded Liability, (ii) any Liability imposed upon any Buyer Purchaser Indemnified Party by reason pursuant to, and shall not have any liability under, Section 9.02(a)(i) until the aggregate amount of Buyer's or Dayton's alleged status as transferee or successor all Damages for which the Sellers would, but for this Section 9.04(a)(i), be liable under Section 9.02 exceeds on a cumulative basis an amount equal to $100,000 (the “Threshold”), in which case, the Sellers shall become liable for all of such Damages (i.e., if such cumulative Damages exceed the Subject Business or Threshold, this Section 9.04(a)(i) shall be without effect in respect thereof); provided, however, that the Subject Assets, (iii) Threshold shall not apply to any inaccuracy, misrepresentation Damages related to any inaccuracy or breach of any representation Seller Fundamental Representation, or warranty under Sections 5.1.1 of Section 3.14 (Ownership of Stock; Authorization of Parent), 5.1.2 (Organization of Seller; Authorization) (other than the third and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)Tax Matters), Section 5.1.5 3.19 (Title to Employee Benefits), or Section 3.15 (Intellectual Property), or any claim based on fraud, gross negligence, willful misconduct, intentional misrepresentation or knowing and Condition intentional breach of Subject Assets) (other than any of the first, second and fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence provisions of this Section 9.4(a)), Section 5.1.9 (Taxes), Section 5.1.13 (Employee Benefit Plans), Section 5.1.14 (Compliance with Environmental Laws), Section 5.1.22 (Liabilities) Agreement or Section 5.1.23 (No Other Agreements to Sell the Assets) or (iv) any breach, non-fulfillment or non-performance of Section 8.5 hereof or the Transition Agreement (clauses (i) through (iv), the "Buyer Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in this Section 9.4(a) (all other Buyer Claims for which Buyer or Dayton is entitled to indemnification under Section 9.2, "Buyer Threshold Claims")Transaction Document.
(bii) Except as set forth in the last sentence of this Section 9.4(b) with respect Purchaser shall not be required to Seller Non-Threshold Claims, neither Buyer nor Dayton shall be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by indemnify any Seller Indemnified Party pursuant to, and shall not have any liability under, Section 9.03(a) until the aggregate amount of all Damages for which they are entitled to indemnificationPurchaser would, individually or in the aggregate, hereunder (but for the operation of this provisoSection 9.04(a)(ii), be liable under Section 9.03 exceeds on a cumulative basis an amount equal to the Threshold, in which case, Purchaser shall become liable for all of such Damages (i.e., if such cumulative Damages exceed the Threshold Amount and thenThreshold, Seller Indemnified Parties this Section 9.04(a)(ii) shall only be entitled to indemnification hereunder to the extent such Losses with without effect in respect to which indemnification is sought pursuant to this Article IX exceed thereof); provided, however, that the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Seller Indemnified Party arising out of, resulting from or relating or incident shall not apply to any breach, non-fulfillment or non-performance with respect Damages related to (i) any Assumed Liability, subject to the terms of Section 2.3, (ii) under the Promissory Note, or (iii) any inaccuracy, misrepresentation inaccuracy or breach of any representation Purchaser Fundamental Representation or warranty under Section 7.1.1 (Organization) any claim based on fraud, gross negligence, willful misconduct, intentional misrepresentation or Section 7.1.2 (Authorization) (clauses (i) through (iii), knowing and intentional breach of any of the "Seller Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in the first sentence provisions of this Section 9.4(b) (all Agreement or any other Seller Claims for which Seller or Parent is entitled to indemnification under Section 9.3, "Seller Threshold Claims")Transaction Document.
Appears in 1 contract