M&A Boot Camp booklet 2023 - Flipbook - Page 140
(v) the exercise by any stockholder of the Company of such stockholder’s appraisal rights under the DGCL for any amount in
excess of what is payable by Parent in accordance with Section 1.5 hereof; or
(vi) any Legal Proceeding relating to any breach or alleged breach or any other matter of the type referred to in clause “(i),” “(ii),”
“(iii),” “(iv)“ or “(v)” above (including any Legal Proceeding commenced by any Indemnitee for the purpose of enforcing any of its
rights under this Section 9).
(b) Damage to Parent. The parties acknowledge and agree that, if the Surviving Corporation suffers, incurs or otherwise becomes
subject to any Damages as a result of or in connection with any inaccuracy in or breach of any representation, warranty, covenant or
obligation, then (without limiting any of the rights of the Surviving Corporation as an Indemnitee) Parent shall also be deemed, by virtue of
its ownership of the stock of the Surviving Corporation, to have incurred Damages as a result of and in connection with such inaccuracy or
breach; provided, however, that any recovery by either party of such Damages shall preclude recovery of such Damages by the other party.
(c) Tax Matters. All indemnity payments made under this Agreement shall be treated as purchase price adjustments for federal and
state income tax purposes.
9.3 Limitations.
(a) Basket. Subject to Section 9.3(b), the Indemnitors shall not be required to make any indemnification payment pursuant to
Section 9.2(a)(i) or Section 9.2(a)(ii) for any inaccuracy in or breach of any representation or warranty in this Agreement until such time as the
total amount of all Damages (including the Damages arising from such inaccuracy or breach and all other Damages arising from any other
inaccuracies or 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 directly or indirectly become subject, exceeds
$75,000 in the aggregate. If the total amount of such Damages exceeds $75,000 in the aggregate, then the Indemnitees shall be entitled to be
indemnified against and compensated and reimbursed for the entire amount of such Damages, and not merely the portion of such Damages
exceeding $75,000.
(b) Applicability of Basket. The limitations set forth in Section 9.3(a) shall not apply: (i) in the case of intentional misrepresentation or
fraud; (ii) to inaccuracies in or breaches of any of the Specified Representations; (iii) to the matters referred to in Sections 9.2(a)(iii), 9.2(a)(iv)
and 9.2(a)(v); or (v) to the matters referred to in Section 9.2(a)(vi) (to the extent related to any of the matters referred to in clauses “(i)”
through “(iii)” of this sentence).
(c) Recourse to Escrow. Subject to Section 9.3(d), recourse by the Indemnitees to the Escrow Amount shall be the Indemnitees’ sole
and exclusive remedy for monetary Damages resulting from the matters referred to in Section 9.2.
(d) Applicability of Liability Cap. The limitations set forth in Section 9.3(c) shall not apply: (i) in the case of intentional
misrepresentation or fraud; (ii) to inaccuracies in or breaches of any of the Specified Representations; (iii) to the matters referred to in
Sections 9.2(a)(iii), 9.2(a)(iv) and 9.2(a)(v); or (iv) to the matters referred to in Section 9.2(a)(vi) (to the extent related to any of the matters
referred to in clauses “(i)” through “(iii)” of this sentence). Except in the case of intentional misrepresentation or fraud, the total amount of
indemnification payments that each Indemnitor can be required to make to the Indemnitees pursuant to Section 9.2 shall be limited to the
Merger Consideration received by such Indemnitor.
50.