Common use of Certain Other Limitations Clause in Contracts

Certain Other Limitations. (a) If an Indemnified Party is at any time entitled by reason of a contractual right to recover from a Third Party any amount in respect of any matter giving rise to Damages, the Indemnified Party shall [***]; provided, further, for the avoidance of doubt, that the foregoing shall not limit an Indemnified Party’s ability to recover Damages pursuant to this ARTICLE 11 (Indemnification; Remedies). In any case where an Indemnified Party recovers from Third Parties any amount in respect of a matter with respect to which an Indemnifying Party has indemnified it pursuant to this ARTICLE 11 (Indemnification; Remedies), such Indemnified Party shall promptly pay over to the Indemnifying Party the amount so recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), but not in excess of the sum of (i) any amount previously so paid by the Indemnifying Party to or on behalf of the Indemnified Party in respect of such matter and (ii) any amount expended by the Indemnifying Party in pursuing or defending any claim arising out of such matter. (b) Any indemnification payment under this Agreement shall be treated as an adjustment to the Upfront Fee for Tax purposes, unless otherwise required by applicable Law. CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE DERMAVANT SCIENCES LTD. HAS DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO DERMAVANT SCIENCES LTD. IF PUBLICLY DISCLOSED. (c) [***] (d) Except for Fraud and except for injunctive relief (including, but not limited to, specific performance), if the Closing occurs, this ARTICLE 11 (Indemnification; Remedies) shall be the sole and exclusive remedy with respect to any and all rights, claims and causes of action that may be based upon, arise out of or relate (directly or indirectly) to the subject matter of this Agreement, the Other Transaction Documents, the negotiation, execution or performance of this Agreement or the Other Transaction Documents or the transactions contemplated thereby. Each Party hereby waives, to the fullest extent permitted under applicable Law, any and all rights, claims and causes of action (other than the right to seek injunctive relief, including specific performance) such Party or any other Buyer Indemnified Party or Seller Indemnified Party, as applicable, may have against the other Party in law or equity except such rights, claims and causes of action based upon such Party’s right to indemnification under this Agreement. Without limiting the foregoing, the Parties hereby irrevocably waive any right to rescission they may otherwise have or to which they may become entitled. The limitations on liability contained in Section 11.4 (Limitations on Amount) of this Agreement shall not apply to Damages resulting from Fraud.

Certain Other Limitations. (ai) The Company shall not be required to make any indemnification payment pursuant to Section 9.2(a)(vii) with respect to any Specified Tax Proceeding until such time as the total amount of all Damages (calculated after giving effect to Section 9.2(b)(i)) 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, in connection with Specified Tax Proceedings exceeds an amount equal to $53,000,000 multiplied by the Primary Post-Issuance Ownership Percentage (the “Apportioned Litigation Reserve Amount”). If an Indemnified Party is at the total amount of such Damages with respect to Specified Tax Proceedings exceeds the Apportioned Litigation Reserve Amount, then (subject to the limitations set forth in Section 9.3(a)), the Indemnitees shall be entitled to be indemnified against and compensated and reimbursed for the portion of such aggregate Damages that exceeds the Apportioned Litigation Reserve Amount. (ii) Notwithstanding anything to the contrary contained in this Agreement: (A) any time entitled indemnification, compensation or reimbursement sought under Section 9.2(a)(vi) for a non-meritorious claim will be subject to the same limits under this Section 9.3 that would apply if such claim were meritorious; (B) in the event of the assertion or commencement by reason of a contractual right to recover from a Third Party any amount in respect Person of any matter giving rise to Damages, the Indemnified Party shall [***]; provided, further, for the avoidance of doubt, that the foregoing shall not limit claim or Legal Proceeding against an Indemnified Party’s ability to recover Damages pursuant to this ARTICLE 11 (Indemnification; Remedies). In any case where an Indemnified Party recovers from Third Parties any amount in respect of a matter Acquired Company with respect to which an Indemnifying Party has indemnified it the Company is obligated to hold harmless, indemnify, compensate or reimburse any Indemnitee pursuant to this ARTICLE 11 (Indemnification; RemediesSection 9.2(a)(vi), such Indemnified Party shall promptly pay over to the Indemnifying Party the amount so recovered (after deducting therefrom the full aggregate amount of Damages that Purchaser and Parent will be deemed to have suffered, incurred or otherwise become subject to for purposes of Section 9.2(a)(vi) will be calculated after giving effect to Section 9.2(b)(i); and (C) in the expenses incurred by it in procuring such recovery), but not in excess event of the sum assertion or commencement by any Person of (i) any amount previously so paid by the Indemnifying Party to or on behalf of the Indemnified Party in respect of such matter and (ii) any amount expended by the Indemnifying Party in pursuing or defending any claim arising out of such matter. (b) Any indemnification payment under this Agreement shall be treated as an adjustment to the Upfront Fee for Tax purposes, unless otherwise required by applicable Law. CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE DERMAVANT SCIENCES LTD. HAS DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO DERMAVANT SCIENCES LTD. IF PUBLICLY DISCLOSED. (c) [***] (d) Except for Fraud and except for injunctive relief (including, but not limited to, specific performance), if the Closing occurs, this ARTICLE 11 (Indemnification; Remedies) shall be the sole and exclusive remedy or Legal Proceeding against Purchaser with respect to which the Company is obligated to hold harmless, indemnify, compensate or reimburse any and all rights, claims and causes of action that may be based upon, arise out of or relate (directly or indirectly) Indemnitee pursuant to the subject matter of this AgreementSection 9.2(a)(vi), the Other Transaction Documentsaggregate amount of Damages that Purchaser will be deemed to have suffered, the negotiation, execution incurred or performance otherwise become subject to for purposes of this Agreement or the Other Transaction Documents or the transactions contemplated therebySection 9.2(a)(vi) will be calculated after giving effect to clause “(A)” of Section 9.2(b)(ii). Each Party hereby waives, to the fullest extent permitted under applicable Law, any and all rights, claims and causes of action (other than the right to seek injunctive relief, including specific performance) such Party or any other Buyer Indemnified Party or Seller Indemnified Party, as applicable, may have against the other Party in law or equity except such rights, claims and causes of action based upon such Party’s right to indemnification under this Agreement. Without limiting the foregoing, the Parties hereby irrevocably waive any right to rescission they may otherwise have or to which they may become entitled. The limitations on liability contained in Section 11.4 (Limitations on Amount) of this Agreement shall not apply to Damages resulting from Fraud.d)

Certain Other Limitations. (a) If an Indemnified Party is at any time entitled by reason of a contractual right to recover from a Third Party any amount in respect of any matter giving rise to Damages, the Indemnified Party shall [***]; provided, further, for the avoidance of doubt, that the foregoing shall not limit an Indemnified Party’s ability to recover Damages pursuant to this ARTICLE 11 (Indemnification; Remedies). In any case where an Indemnified Party recovers from Third Parties any amount in respect of a matter with respect to which an Indemnifying Party has indemnified it pursuant to this ARTICLE 11 (Indemnification; Remedies), such Indemnified Party shall promptly pay over to the Indemnifying Party the amount so recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), but not in excess of the sum of (i) any amount previously so paid by the Indemnifying Party to or on behalf of the Indemnified Party in respect of such matter and (ii) any amount expended by the Indemnifying Party in pursuing or defending any claim arising out of such matter. (b) Any indemnification payment under this Agreement shall be treated as an adjustment to the Upfront Fee for Tax purposes, unless otherwise required by applicable Law. [***] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***]BRACKETS, HAS BEEN OMITTED BECAUSE DERMAVANT SCIENCES LTD. HAS DETERMINED IS FILED WITH THE INFORMATION (I) IS NOT MATERIAL SECURITIES AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM EXCHANGE COMMISSION PURSUANT TO DERMAVANT SCIENCES LTD. IF PUBLICLY DISCLOSEDRULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED. (c) [***] (d) Except for Fraud and except for injunctive relief (including, but not limited to, specific performance), if the Closing occurs, this ARTICLE 11 (Indemnification; Remedies) shall be the sole and exclusive remedy with respect to any and all rights, claims and causes of action that may be based upon, arise out of or relate (directly or indirectly) to the subject matter of this Agreement, the Other Transaction Documents, the negotiation, execution or performance of this Agreement or the Other Transaction Documents or the transactions contemplated thereby. Each Party hereby waives, to the fullest extent permitted under applicable Law, any and all rights, claims and causes of action (other than the right to seek injunctive relief, including specific performance) such Party or any other Buyer Indemnified Party or Seller Indemnified Party, as applicable, may have against the other Party in law or equity except such rights, claims and causes of action based upon such Party’s right to indemnification under this Agreement. Without limiting the foregoing, the Parties hereby irrevocably waive any right to rescission they may otherwise have or to which they may become entitled. The limitations on liability contained in Section 11.4 (Limitations on Amount) of this Agreement shall not apply to Damages resulting from Fraud.

Certain Other Limitations. (a) If an Indemnified Party is at any time entitled by reason of a contractual right to recover from a Third Party any amount in respect of any matter giving rise to Damages, the Indemnified Party shall [***]; provided, further, for the avoidance of doubt, that the foregoing shall not limit an Indemnified Party’s ability to recover Damages pursuant to this ARTICLE 11 (Indemnification; Remedies). In any case where an Indemnified Party recovers from Third Parties any amount in respect of a matter with respect to which an Indemnifying Party has indemnified it pursuant to this ARTICLE 11 (Indemnification; Remedies), such Indemnified Party shall promptly pay over to the Indemnifying Party the amount so recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), but not in excess of the sum of (i) any amount previously so paid by the Indemnifying Party to or on behalf of the Indemnified Party in respect of such matter and (ii) any amount expended by the Indemnifying Party in pursuing or defending any claim arising out of such matter. (b) Any indemnification payment under this Agreement shall be treated as an adjustment to the Upfront Fee for Tax purposes, unless otherwise required by applicable Law. Tarpon – Asset Purchase Agreement Strictly Confidential CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE DERMAVANT SCIENCES LTD. HAS DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO DERMAVANT SCIENCES LTD. IF PUBLICLY DISCLOSED.. 37 (c) [***] (d) Except for Fraud and except for injunctive relief (including, but not limited to, specific performance), if the Closing occurs, this ARTICLE 11 (Indemnification; Remedies) shall be the sole and exclusive remedy with respect to any and all rights, claims and causes of action that may be based upon, arise out of or relate (directly or indirectly) to the subject matter of this Agreement, the Other Transaction Documents, the negotiation, execution or performance of this Agreement or the Other Transaction Documents or the transactions contemplated thereby. Each Party hereby waives, to the fullest extent permitted under applicable Law, any and all rights, claims and causes of action (other than the right to seek injunctive relief, including specific performance) such Party or any other Buyer Indemnified Party or Seller Indemnified Party, as applicable, may have against the other Party in law or equity except such rights, claims and causes of action based upon such Party’s right to indemnification under this Agreement. Without limiting the foregoing, the Parties hereby irrevocably waive any right to rescission they may otherwise have or to which they may become entitled. The limitations on liability contained in Section 11.4 (Limitations on Amount) of this Agreement shall not apply to Damages resulting from Fraud.

Certain Other Limitations. (ai) If an Indemnified Party is at any time entitled by reason In order to avoid a double recovery on the part of a contractual right to recover from a Third Party any the Indemnitees, the Sellers and Purchaser agree that, in determining the amount in respect of any matter Damages for which an Indemnitee is entitled to assert a claim for indemnification, compensation or reimbursement pursuant to this Section 8, the amount of any such Damages shall be reduced by the net amount of any insurance (including the R&W Insurance Policy) proceeds actually received by such Indemnitee as a result of and with respect to such Damages under any insurance policy of the Company or any Company Subsidiary or any Indemnitee or any other proceeds actually received by such Indemnitee pursuant to any third party contractual indemnification or contribution provisions in connection with such Damages (with the net amount of such Damages calculated after giving effect to any applicable deductible or retention and any costs of recovery, including premium increases (retroactive or otherwise), any reimbursement obligation and any other cost (including without limitation Tax) related to the applicable insurance, indemnification or contribution claim). Without limiting any duty to mitigate Damages under the common law of the State of Delaware, Indemnitees shall be required to use reasonable best efforts to seek recovery under the R&W Insurance Policy. In the event the Indemnitees first recover against the Indemnity Escrow Fund, the Special Indemnity Escrow Fund or the Sellers for any particular Damages and thereafter recover for the same Damages pursuant to any insurance policies or contractual indemnification or contribution provisions, then the amount recovered pursuant to such insurance policies or contractual indemnification or contribution provisions (up to the amount first recovered by the Indemnitees, but so as not to leave the Indemnitees in a worse monetary position after costs including Tax than as if the events or circumstances giving rise to Damages, the Indemnified Party shall [***]; provided, further, for the avoidance of doubt, that the foregoing shall relevant claim had not limit an Indemnified Party’s ability to recover Damages pursuant to this ARTICLE 11 (Indemnification; Remedies). In any case where an Indemnified Party recovers from Third Parties any amount in respect of a matter with respect to which an Indemnifying Party has indemnified it pursuant to this ARTICLE 11 (Indemnification; Remedies), such Indemnified Party occurred) shall promptly pay over be paid to the Indemnifying Party Sellers by Purchaser (such amounts to be allocated amongst the amount so recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recoverySellers based on their respective Pro Rata Percentages), but not in excess of the sum of (i) any amount previously so paid by the Indemnifying Party to or on behalf of the Indemnified Party in respect of such matter and . (ii) No Seller shall be liable to any amount expended Indemnitee for (A) the breach by any other Sellers of this Agreement or any other Transaction Document, or (B) any Fraud committed by any other Seller, unless such Seller had actual knowledge of the Fraud committed by the Indemnifying Party in pursuing or defending any claim arising out of other Seller at the time such matterFraud was committed. (biii) Any indemnification payment under Nothing in this Agreement shall be treated as an adjustment deemed to eliminate or otherwise limit any duty to mitigate Damages under the Upfront Fee for Tax purposes, unless common law of the State of Delaware that would otherwise required by applicable Law. CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE DERMAVANT SCIENCES LTD. HAS DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO DERMAVANT SCIENCES LTD. IF PUBLICLY DISCLOSEDbe applicable. (civ) [***]Notwithstanding anything to the contrary contained in this Agreement, under no circumstances will any Seller be liable to any Indemnitee for any punitive or exemplary damages, except to the extent such punitive or exemplary damages are awarded to any third party pursuant to a Third-Party Claim, and except in the case of Fraud committed by such Seller. (dv) Except No Indemnitee shall be entitled to double recovery for Fraud any indemnifiable Damages even though such Damages may have resulted from the breach of more than one of the representations, warranties, covenants or agreements set forth in this Agreement (it being acknowledged and except agreed that the purpose of this Section 8.3(g)(v) is to avoid “double counting”). (vi) No Indemnitee shall be entitled to indemnification or reimbursement pursuant to Section 8.2 for injunctive relief (includingA) any representation, but not limited towarranty, specific performancecovenant or agreement waived in writing by Parent or Purchaser at or prior to the Closing, (B) any item or liability to the extent specifically taken into account in the determination of the Final Adjusted Purchase Price (it being understood that no Seller will be obligated to indemnify, defend or hold harmless Parent from and against any Damages to the extent an item or liability was specifically taken into account in the determination of the Final Adjusted Purchase Price), if the Closing occurs, this ARTICLE 11 (Indemnification; RemediesC) shall be the sole and exclusive remedy any Damages consisting of or relating to (1) Taxes with respect to any and all rightstaxable period, claims and causes or the portion of action that may be based uponany Straddle Period, arise out beginning after the Closing Date (other than with respect to any such Taxes pursuant to Treasury Regulations Section 1.1502-6, or any similar provision of other applicable Law),or (2) the amount, value or availability of any Tax Attribute of the Company or any of its Subsidiaries or (D) any Tax Adjustment Amount Factored Taxes. (vii) In determining the amount of any Damages for which an Indemnitee is entitled to assert a claim for indemnification, compensation or reimbursement pursuant to this Section 8, (A) any financial benefit obtained by Purchaser or one or more of its Affiliates, as a result of or relate in connection with the Damages arising from that breach or claim or which arises as a result of the claim, shall be taken into account (directly after Taxes) (but not such that the Damages are reduced to below zero), including the receipt of any Tax Attribute or indirectly) a reduction in Tax of the Company or any of its Subsidiaries (to the subject matter extent that such Tax Attribute or reduction in Tax is attributable to a taxable period (or portion thereof) ending on or prior to the Closing Date and actually reduces Taxes of the Indemnitees in or prior to the taxable year in which such Damages arose) and (B) any other Tax benefit or reduction of the Company or any of its Subsidiaries available to the Indemnitees shall be applied to the maximum extent possible (but (1) only if such Tax benefit or reduction is attributable to a taxable period (or portion thereof ending on or prior to the Closing Date, and (2) not such that the Damages are reduced to below zero), including applying any applicable Tax losses to reduce the Tax liability under the claim to the maximum extent possible. (viii) The waiver of any condition under this Agreement based upon (A) the accuracy of any representation or warranty in this Agreement or (B) the performance of or compliance or non-compliance with any covenant or obligation in this Agreement, will not affect the Other Transaction Documentsright to indemnification, compensation or other remedy based upon such representations, warranties, covenants and obligations pursuant to this Section 8. (ix) The right to indemnification, compensation or other remedy based upon the negotiationrepresentations, warranties, covenants or obligations contained in this Agreement (or any certificate or document delivered pursuant hereto) will not be affected by any investigations (including any environmental investigation or assessment) conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution or performance and delivery of this Agreement or the Other Transaction Documents or the transactions contemplated thereby. Each Party hereby waivesClosing Date, with respect to the fullest extent permitted under applicable Lawaccuracy or inaccuracy of or compliance with any such representation, any and all rightswarranty, claims and causes of action covenant or obligation. (other than x) Notwithstanding anything to the right to seek injunctive relief, including specific performance) such Party or any other Buyer Indemnified Party or Seller Indemnified Party, as applicable, may have against the other Party contrary set forth in law or equity except such rights, claims and causes of action based upon such Party’s right to indemnification under this Agreement. Without limiting the foregoing, the Parties hereby irrevocably waive Sellers’ indemnification obligations pursuant to Section 8.2(a)(i) or Section 8.2(b)(i) (for the purposes of determining the existence of any right inaccuracy or breach of any representation and warranty and calculation of the Damages attributable to rescission they may otherwise have such inaccuracy or breach) shall be determined without giving effect to which they may become entitled. The limitations on liability any qualification or exception with respect to “material,” “materiality,” “materially,” “Company Material Adverse Effect” or similar language with respect to materiality contained in any representation or warranty set forth in Section 11.4 (Limitations on Amount) 3 or Section 4; provided, however, that such qualifications will not be disregarded with respect to the definition of this Agreement shall not apply to Damages resulting from Fraud“Material Contract” or Section 4.6.