OF DAMAGES, AS FINALLY DETERMINED, EXCEEDS
THE SELLER'S THRESHOLD; PROVIDED THAT ANY DAMAGES WHICH INDIVIDUALLY TOTAL LESS
THAN FIFTY THOUSAND DOLLARS ($50,000.00) ("DE MINIMIS BUYER LOSSES") SHALL BE
EXCLUDED IN THEIR ENTIRETY AND SELLER IN NO EVENT SHALL HAVE ANY LIABILITY
HEREUNDER TO ANY BUYER INDEMNIFIED PARTIES FOR ANY SUCH DE MINIMIS BUYER
LOSSES.
FOR ALL DETERMINATIONS MADE AFTER THE CLOSING REGARDING THE EXISTENCE
OF A BREACH OF ANY OF SELLER'S REPRESENTATIONS AND WARRANTIES IN ARTICLES III OR
IV FOR THE PURPOSES OF SECTION 9.2(A)(II) OR THE AMOUNT OF ANY DAMAGES WITH
RESPECT THERETO, ALL SUCH REPRESENTATIONS AND WARRANTIES THAT ARE QUALIFIED BY
MATERIALITY OR BY REFERENCE TO MATERIAL ADVERSE EFFECT SHALL BE DEEMED TO BE NOT
SO QUALIFIED, EXCEPT FOR EACH OF THE FOLLOWING (WHICH SHALL CONTINUE TO HAVE ALL
SUCH QUALIFIERS FOR ALL PURPOSES HEREIN):
(A) CLAUSE (B) OF SECTION 4.4; (B)
THE FIRST SENTENCE OF SECTION 4.5(B); (C) THE FIRST SENTENCE OF SECTION 4.5(C);
AND (D) SECTION 4.12(B).
(C)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT,
SELLER'S AGGREGATE LIABILITY TO THE BUYER INDEMNIFIED PARTIES FOR ALL DAMAGES
UNDER OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY,
INCLUDING THE INDEMNIFICATION PROVISIONS SET FORTH IN ARTICLE X HEREIN, SHALL
NOT EXCEED FIFTEEN PERCENT (15%) OF THE SUM OF (I) THE FINAL PURCHASE PRICE PLUS
(II) THE COMPANY INDEBTEDNESS PAYOFF AMOUNT.
(D)
THE INDEMNITIES PROVIDED IN THIS SECTION 9.2 SHALL SURVIVE THE
CLOSING.
THE INDEMNITY PROVIDED IN THIS SECTION 9.2 SHALL BE THE SOLE AND
EXCLUSIVE REMEDY OF THE BUYER INDEMNIFIED PARTIES AGAINST SELLER AT LAW OR IN
EQUITY RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
THE
PARTIES AGREE TO TREAT ANY INDEMNITY PAYMENT MADE PURSUANT TO THIS SECTION 9.2
AS AN ADJUSTMENT TO THE FINAL PURCHASE PRICE UNLESS OTHERWISE REQUIRED PURSUANT
TO A "DETERMINATION" WITHIN THE MEANING OF SECTION 1313(A) OF THE CODE.
(E)
BUYER SHALL GIVE SELLER PROMPT WRITTEN NOTICE OF ANY THIRD PARTY CLAIM
WHICH MAY GIVE RISE TO ANY INDEMNITY OBLIGATION UNDER THIS SECTION, TOGETHER
WITH THE ESTIMATED AMOUNT OF SUCH CLAIM, AND SELLER SHALL HAVE THE RIGHT TO
ASSUME THE DEFENSE OF ANY SUCH CLAIM
42
THROUGH COUNSEL OF THEIR OWN CHOOSING, BY SO NOTIFYING BUYER WITHIN SIXTY (60)
DAYS OF RECEIPT OF BUYER'S WRITTEN NOTICE.
FAILURE TO GIVE PROMPT NOTICE SHALL
NOT AFFECT THE INDEMNIFICATION OBLIGATIONS HEREUNDER IN THE ABSENCE OF ACTUAL
PREJUDICE.
IF BUYER DESIRES TO PARTICIPATE IN, BUT NOT CONTROL, ANY SUCH
DEFENSE ASSUMED BY SELLER, IT MAY DO SO AT ITS SOLE COST AND EXPENSE.
IF SELLER
FAILS TO ASSUME ANY SUCH DEFENSE, IT SHALL BE LIABLE TO THE EXTENT PROVIDED
UNDER SECTION 9.2(A) FOR ALL REASONABLE COSTS AND EXPENSES OF DEFENDING SUCH
CLAIM INCURRED BY BUYER, INCLUDING REASONABLE FEES AND DISBURSEMENTS OF COUNSEL
IN THE EVENT IT IS ULTIMATELY DETERMINED THAT SELLER IS LIABLE FOR SUCH CLAIM
PURSUANT TO THE TERMS OF THIS AGREEMENT.
NO PARTY SHALL, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE OTHER PARTY, WHICH SHALL NOT BE UNREASONABLY WITHHELD,
DELAYED,