CompUSA 2014 Annual Report Download - page 182

8.7 Tax Treatment of Indemnification. The Buyer and the Seller agree to treat any
indemnity payment made pursuant to this
Article VIII as an adjustment to the Purchase Price for all Tax purposes.
8.8 Exclusive Remedy. THE RIGHTS OF INDEMNITY PROVIDED IN THIS ARTICLE VIII ARE THE PARTIES’
SOLE
AND EXCLUSIVE REMEDY ABSENT COMMON LAW FRAUD OR INTENTIONAL MISREPRESENTATION OF MATERIAL FACTS
WHICH CONSTIUTE COMMON LAW FRAUD AFTER THE EFFECTIVE TIME RELATING IN ANY WAY TO THE SUBJECT
MATTER OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND ALL OTHER RIGHTS OF
INDEMNITY OR CONTRIBUTION, WHETHER CREATED BY LAW OR OTHERWISE, ARE HEREBY WAIVED; PROVIDED, THAT
THE FOREGOING SHALL NOT PROHIBIT A PARTY FROM SEEKING INJUNCTIVE RELIEF, SPECIFIC PERFORMANCE OR OTHER
EQUITABLE REMEDIES IN THE EVENT OF A BREACH OF SECTIONS 5.3, 5.4, 5.5, 5.8, 5.9, 5.10, 5.11, 11.1, 11.14 OR ARTICLE X
HEREOF.
8.9 LIMITATION OF LIABILITY. NOTWITHSTANDING ANY PROVISION TO
THE CONTRARY HEREIN, AN INDEMNIFIED PARTY WILL NOT BE ENTITLED TO RECOVER ANY CONSEQUENTIAL, LOST
PROFITS, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIM ASSERTED PURSUANT TO
THIS ARTICLE VIII PROVIDED FURTHER THAT AN INDEMNIFIED PARTY WILL NOT BE ENTITLED TO RECOVER UNDER A
“MULTIPLE OF PROFITS,” “MULTIPLE OF CASH FLOW,” “MULTIPLE OF EBITDA”
OR SIMILAR VALUATION METHODOLOGY
IN CALCULATING THE AMOUNT OF ANY INDEMNIFIABLE LOSSES.
ARTICLE IX
TERMINATION OF AGREEMENT
9.1 Causes. This Agreement and the transactions contemplated hereby may be
terminated at any time prior to the completion of
the Closing as follows, and in no other manner:
(a) By mutual written consent of the Parties;
(b)
By either the Buyer or the Seller, if any permanent injunction, order, decree or ruling by any Governmental Entity of
competent jurisdiction preventing the consummation of the Purchase and Sale of the Purchased Equity and Mexican Purchased Equity shall have
become final and nonappealable; provided, however, that the Party seeking to terminate this Agreement pursuant to this Section 9.1(c) shall have
used reasonable best efforts to remove such injunction or overturn such action;
(c) By written notice from the Buyer to the Seller:
(i)
If any of the conditions provided for in Article VI of this Agreement have not been satisfied or waived by the
Buyer in writing and the Closing has not occurred by February 3, 2015 or the date of such notice, whichever is later;
(ii) Within five days after the Buyer’
s receipt of an Updated Schedule which discloses an issue to the Companies
in a dollar amount in excess of $1,000,000;
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