STOCK, AND NEXT, BY THE DELIVERY OF APOLLO LNG COMMON STOCK.
THE VALUE
OF THE COMMON STOCK OF APOLLO AND OF APOLLO LNG, IF IT IS THEN PUBLICLY TRADED,
SHALL BE THE AVERAGE CLOSING PRICE OF SUCH STOCK OVER THE MOST IMMEDIATE FIVE
DAY TRADING PERIOD PRIOR TO THE DATE OF SATISFACTION OF THE INDEMNITY
OBLIGATION.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE SELLER SHALL HAVE NO
OBLIGATION TO SATISFY ANY SUCH LIABILITY TO APOLLO LNG OR APOLLO IN ANY MANNER
(INCLUDING THE PAYMENT OF MONEY) OTHER THAN BY THE DELIVERY OF STOCK, AS
PROVIDED HEREIN.
35
(B)
THE SOLE AND EXCLUSIVE REMEDY OF SELLER UNDER THIS AGREEMENT, FOR
A BREACH BY APOLLO OR APOLLO LNG OF ANY REPRESENTATION OR WARRANTY SET FORTH IN
SECTION 6.2 OF THIS AGREEMENT, SHALL BE TO RECEIVE FROM APOLLO LNG ADDITIONAL
SHARES OF SERIES A STOCK AND SERIES B STOCK (IN EQUAL MEASURES OF SERIES A STOCK
AND SERIES B STOCK), WHICH IS EQUIVALENT TO THE AMOUNT FOR WHICH SELLER IS
ENTITLED TO INDEMNIFICATION PURSUANT TO SECTION 8.3, VALUED AT $1.00 PER SHARE.
APOLLO LNG STOCK RECEIVED BY SELLER PURSUANT TO THIS SECTION 8.6(B) MAY BE
CONVERTED BY SELLER, UPON THE TERMS AND CONDITIONS PROVIDED FOR IN SECTION 2.2,
FOR A PERIOD OF TWO (2) YEARS FOLLOWING THE DATE OF ISSUANCE OF SUCH STOCK TO
SELLER.
(C)
THE MAXIMUM AGGREGATE LIABILITY OF SELLER TO APOLLO AND APOLLO
LNG, COLLECTIVELY, FOR THE BREACH OF A WARRANTY OR REPRESENTATION UNDER
SECTION 6.1 OF THIS AGREEMENT SHALL NOT EXCEED $2,500,000, AND THE MAXIMUM
AGGREGATE LIABILITY OF APOLLO AND APOLLO LNG FOR THE BREACH OF A WARRANTY OR
REPRESENTATION UNDER SECTION 6.2 OF THIS AGREEMENT SHALL NOT EXCEED $2,500,000,
PAYABLE SOLELY IN STOCK AS PROVIDED FOR HEREIN.
(D)
NO PARTY WILL BE REQUIRED TO INDEMNIFY ANOTHER PARTY UNLESS THE
INDEMNIFIED PARTY'S CLAIMS WITH RESPECT TO A PARTICULAR SET OF FACTS OR
CIRCUMSTANCES EXCEED $50,000, AND UNLESS (AND ONLY TO THE EXTENT THAT) THE
AGGREGATE AMOUNT OF THE AGREED TO OR ADJUDICATED INDEMNIFICATION CLAIMS AGAINST
SUCH PARTY EXCEED $50,000.
IT IS ADDITIONALLY EXPRESSLY UNDERSTOOD AND AGREED
THAT KEN KELLEY SHALL HAVE NO PERSONAL OR OTHER LIABILITY UNDER THIS AGREEMENT
WHATSOEVER, AND THAT APOLLO AND APOLLO LNG SHALL HAVE NO RECOURSE TO THE ASSETS
OR PROPERTIES OF KEN KELLEY.
(E)
NO PARTY SHALL BE LIABLE OR OTHERWISE RESPONSIBLE TO ANY OTHER
PARTY FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING LOST
PROFITS, OR LOSS OF BUSINESS OPPORTUNITY OR FOR PUNITIVE DAMAGES, AS TO ANY ACT
OR OMISSION WHATSOEVER, AND CHARACTERIZED AS A CONTRACT BREACH, TORT, OR
OTHERWISE, WHICH ARISES OUT OF OR RELATES TO THIS AGREEMENT OR ITS PERFORMANCE
OR NON-PERFORMANCE; PROVIDED THAT THIS LIMITATION ON LIABILITY SHALL NOT APPLY
TO ANY CLAIMS WITH RESPECT TO WHICH A PARTY IS FOUND BY A COURT OF COMPETENT
JURISDICTION TO HAVE COMMITTED ACTUAL FRAUD.
(F)
EACH INDEMNIFIED PARTY SHALL BE OBLIGATED IN CONNECTION WITH ANY
CLAIM FOR INDEMNIFICATION TO EXERCISE ALL COMMERCIALLY REASONABLE EFFORTS TO
MITIGATE THE LOSSES ASSOCIATED WITH