Common use of Indemnification Limits Clause in Contracts

Indemnification Limits. The Investor Indemnified Parties shall not be entitled to recover any Losses pursuant to Section 4.12(b) (i) unless and until the Investor Indemnified Parties’ aggregate claims therefor exceed $500,000, at which time the Investor Indemnified Parties shall be entitled to recover Losses only to the extent that the aggregate amount of Investor Indemnified Parties’ indemnifiable Losses exceeds such amount (the “Deductible”); provided, however, that no event, claim or item of Loss will constitute a Loss and indemnification will not be available with respect to such event, claim or item of Loss (nor will any such event, claim or item of Loss be counted towards the Deductible) unless such event, claim or item of Loss, together with all related events, claims or items of Loss, results in a Loss of $50,000 or more, in which case the Investor Indemnified Parties will be entitled to indemnification for the full amount of Losses related to such event, claim or item of Loss subject to the Deductible and the other limitations set forth herein (and such Losses will be counted towards the Deductible); or (ii) for an aggregate amount in excess of $50,000,000; provided, however that claims for breach of any of the Specified Representations shall not be subject to the foregoing limitations and shall not be included in the determination of whether a limitation has been reached. In addition, the Losses incurred by any Investor shall be determined on the basis of the number of Purchased Securities purchased by such Investor (or such Investor’s Affiliate, as applicable) hereunder and not on the basis of any other shares of Common Stock beneficially owned by such Investor, whether acquired prior to or after the consummation of the Transactions.

Indemnification Limits. The Investor (a) Except with respect to (i) claims for fraud or intention to deceive, (ii) claims for breach or default by the Company, the Representative or any Indemnifying Party of any covenant, or agreement (other than the representations and warranties set forth in ARTICLE III or ARTICLE IV) applicable to such party under this Agreement or any other Transaction Document, (iii) claims for breaches of any representations and warranties contained in Sections 3.2 (Capital Structure), 3.8 (Tax Matters), 3.10 (Intellectual Property and Related Matters), and 4.3 (Rights to Intellectual Property), (iv) Indemnified Dissenting Shares Losses, (v) claims asserted by any Securityholder or Securityholders against the Company, its Board of Directors or any of the Indemnified Parties in connection with this Agreement, the Merger and the other transactions contemplated hereby, and (vi) Indemnified Tax Losses, (A) the Escrow Account is the sole source of recovery available to satisfy any indemnification claim for Indemnified Losses pursuant to this ARTICLE XIII and (B) the Indemnified Parties shall not be entitled to recover be indemnified for any Indemnified Losses pursuant to Section 4.12(b) (i) unless and until the Investor aggregate amount of all Indemnified Parties’ aggregate claims therefor exceed Losses exceeds $500,000200,000 (the “Minimum Loss Amount”) subject to Section 13.6(b); provided, at which time after the Investor Minimum Loss Amount is exceeded, the Indemnified Parties shall be entitled to recover Losses only to be paid the extent that the aggregate amount of Investor any Indemnified Parties’ indemnifiable Losses exceeds such amount (including the “Deductible”); providedMinimum Loss Amount, however, that no event, claim or item of Loss will constitute a Loss and indemnification will not be available with respect to such event, claim or item of Loss (nor will any such event, claim or item of Loss be counted towards the Deductible) unless such event, claim or item of Loss, together with all related events, claims or items of Loss, results in a Loss of $50,000 or more, in which case the Investor Indemnified Parties will be entitled to indemnification for the full amount of Losses related to such event, claim or item of Loss subject to the Deductible and the other limitations set forth herein (contained in this ARTICLE XIII and such Losses will be counted towards the Deductible); or (ii) for an aggregate amount in excess of $50,000,000; provided, however that claims for breach of any of the Specified Representations shall not be subject to the foregoing limitations and shall not be included in the determination of whether a limitation has been reached. In addition, the Losses incurred by any Investor shall be determined on the basis of the number of Purchased Securities purchased by such Investor (or such Investor’s Affiliate, as applicable) hereunder and not on the basis of any other shares of Common Stock beneficially owned by such Investor, whether acquired prior to or after the consummation of the TransactionsSection 15.1.

Indemnification Limits. The Investor (a) If the Closing occurs, the Buyer Indemnified Parties shall not be entitled to recover any Losses for breach of the representations and warranties of Seller contained herein or any claims for indemnification made pursuant to Section 4.12(b) (i7.3(c) unless and until the Investor Buyer Indemnified Parties’ aggregate claims therefor exceed $500,00050,000 (the “Basket”), at which time the Investor Buyer Indemnified Parties shall be entitled to recover Losses only to for all claims including the extent that the aggregate amount of Investor Indemnified Parties’ indemnifiable Losses exceeds such amount (the “Deductible”)first $50,000; provided, however, that no event, claim or item of Loss will constitute a Loss and indemnification will the Basket shall not be available with respect apply to such event, claim or item of Loss (nor will any such event, claim or item of Loss be counted towards the Deductible) unless such event, claim or item of Loss, together with all related events, claims or items of Loss, results in a Loss of $50,000 or more, in which case the Investor Indemnified Parties will be entitled to indemnification for the full amount of Losses related to such event, claim or item of Loss subject to the Deductible and the other limitations set forth herein (and such Losses will be counted towards the Deductible); or (ii) for an aggregate amount in excess of $50,000,000; provided, however that claims for breach of any Fundamental Representation or claims for indemnification made pursuant to Section 7.3(e), Section 7.3(g) or Section 7.3(h). In no event shall the Buyer Indemnified Parties be entitled to recover Losses (i) for claims for breach of the Specified Fundamental Representations in excess of $13,050,000, (ii) for claims for breach or violation of the covenants set forth in Section 6.7, Section 6.9 and Section 6.11 in excess of $9,787,500 in the aggregate for all such claims, or (iii) for claims made pursuant to Section 7.3(g) and Section 7.3(h) in excess of $2,000,000 in the aggregate for all such claims. For the avoidance of doubt, the Parties acknowledge and agree that there is no limitation on the dollar amount of Losses that may be recovered with respect to claims for indemnification made pursuant to Section 7.3(e). Notwithstanding the limitations on indemnification set forth in Section 7.1 and this Section 7.2, such limitations shall not be subject apply to any claim for fraud. For all purposes of this Article 7, when determining the foregoing limitations and shall amount of the Losses (but not be included in the determination of when determining whether a limitation representation or warranty of Seller has been reached. In additionbreached or is inaccurate), the Losses incurred by any Investor shall Material Adverse Effect or other materiality qualifier contained in any such representation or warranty will be determined on the basis of the number of Purchased Securities purchased by such Investor (or such Investor’s Affiliate, as applicable) hereunder and not on the basis of any other shares of Common Stock beneficially owned by such Investor, whether acquired prior to or after the consummation of the Transactionsdisregarded.

Indemnification Limits. The Investor No Indemnified Parties Party shall not be entitled to recover any Losses pursuant for breach of the representations and warranties of any party contained herein, (a) unless, and only to Section 4.12(b) (i) unless and until the Investor extent that, such Indemnified Parties’ Party's cumulative aggregate claims therefor exceed $500,000400,000, at which time the Investor Indemnified Parties shall be entitled to recover Losses only to the extent that the aggregate amount of Investor Indemnified Parties’ indemnifiable Losses exceeds such amount (the “Deductible”); provided, however, that no event, claim or item of Loss will constitute a Loss and indemnification will not be available with respect to such event, claim or item of Loss (nor will any such event, claim or item of Loss be counted towards the Deductible) unless such event, claim or item of Loss, together with all related events, claims or items of Loss, results in a Loss of $50,000 or more, in which case the Investor Indemnified Parties will be entitled to indemnification for the full amount of Losses related to such event, claim or item of Loss subject to the Deductible and the other limitations set forth herein (and such Losses will be counted towards the Deductible); or (iib) for an a cumulative aggregate amount in excess of $50,000,000twenty percent (20%) of the Closing Purchase Price; provided, however that claims for breach of any of the Specified Representations shall not be subject to the foregoing limitations limits and shall not be included in the determination of whether a limitation the limit in clause (b) has been reached. In additionFor all purposes of this Article 10, when determining whether a representation or warranty of any party has been breached or is inaccurate and the amount of the Losses, any Company Material Adverse Effect or other materiality qualifier contained in any such representation or warranty will be disregarded, except for the materiality qualifiers in Section 3.7(b), the reference to Company Material Adverse Effect in Section 3.8(b), the materiality qualifiers in Section 3.9, and the materiality qualifier in the penultimate sentence of Section 3.18. In calculating the Losses of any Indemnified Party hereunder, it is the intent of the parties that no recovery shall be made twice for the same Loss by virtue of the operation of any adjustment to the Closing Purchase Price pursuant to Section 1.4 and this Article 10. For the avoidance of doubt, if, for example, there is any difference between the amounts or information set forth on the Estimated Closing Purchase Price Certificate and the amounts or information set forth on the Closing Purchase Price Certificate, and an adjustment is made with respect thereto pursuant to Section 1.4, any Losses incurred by any Investor the Purchaser with respect to the specific facts giving rise to such adjustment shall not be determined on the basis recovered twice by operation of the number of Purchased Securities purchased by such Investor (or such Investor’s Affiliate, as applicable) hereunder Section 1.4 and not on the basis of any other shares of Common Stock beneficially owned by such Investor, whether acquired prior to or after the consummation of the Transactionsthis Article 10.

Indemnification Limits. The Investor Indemnified Parties shall not be entitled to recover any Losses pursuant to Section 4.12(b4.3(b) (i) unless and until the Investor Indemnified Parties’ aggregate claims therefor exceed $500,000750,000, at which time the Investor Indemnified Parties shall be entitled to recover Losses only to the extent that the aggregate amount of Investor Indemnified Parties’ indemnifiable Losses exceeds such amount (the “Deductible”); , provided, however, that no event, claim or item of Loss will constitute a Loss and indemnification will not be available with respect to such event, claim or item of Loss (nor will any such event, claim or item of Loss be counted towards the Deductible) unless such event, claim or item of Loss, together with all related events, claims or items of Loss, results in a Loss of $50,000 25,000 or more, in which case the Investor Indemnified Parties will be entitled to indemnification for the full amount of Losses related to such event, claim or item of Loss subject to the Deductible and the other limitations set forth herein (and such Losses will be counted towards the Deductible); or (ii) for an aggregate amount in excess of $50,000,00060,000,000; provided, however that claims for breach of any of the Specified Representations shall not be subject to the foregoing limitations and shall not be included in the determination of whether a limitation has been reached. In addition, the Losses incurred by any Investor shall be determined on the basis of the number of Purchased Securities purchased by such Investor (or such Investor’s Affiliate, as applicable) hereunder and not on the basis of any other shares of Common Stock beneficially owned by such Investor, whether acquired prior to or after the consummation of the Transactions.

Indemnification Limits. 9.4.1 The Investor Indemnified Parties Members shall not be entitled liable for any indemnification obligations under this Agreement with respect to, or to recover hold any Parent Indemnified Persons harmless from, and Parent shall not be liable for any indemnification obligations under this Agreement with respect to, or to hold any Company Indemnified Person harmless from, any claim or group of related claims, unless such claim or group of related claims involves Losses pursuant in excess of $10,000 (all such claims or group of related claims of an amount equal to Section 4.12(b) (i) unless and until the Investor Indemnified Parties’ aggregate claims therefor exceed $500,00010,000 or less, at which time the Investor Indemnified Parties a “De Minimis Claim”), nor shall any De Minimis Claim be entitled applied to recover Losses only to the extent that or considered for purposes of calculating the aggregate amount of Investor the Parent Indemnified PartiesPersons’ indemnifiable or Company Indemnified Persons’ Losses, as applicable; provided that the limitations provided in this sentence shall only apply with respect to an aggregate of up to $100,000 of De Minimis Claims and if all De Minimis Claims in the aggregate exceed $100,000 (such excess, “Excess De Minimis Claims”), the Members and Parent shall, as applicable, subject to the other limitations provided in this Agreement, indemnify and hold the Parent Indemnified Persons or Company Indemnified Persons, as applicable, harmless from the amount of such excess over $100,000 and the amount of such excess shall be applied to and considered for purposes of calculating the aggregate amount of the Parent Indemnified Persons’ or Company Indemnified Persons’ Losses, as applicable, needed to meet the Deductible and the Liability Cap. In addition, the Members shall not be liable for the indemnification obligations pursuant to Section 9.1.1, Section 9.1.4, Section 9.1.5 or Section 9.1.6, or to hold the Parent Indemnified Persons harmless, and Parent shall not be liable for the indemnification obligations pursuant to Section 9.2.1, or to hold the Company Indemnified Persons harmless, until the aggregate amount of Losses, including Losses with respect to Excess De Minimis Claims, with respect to matters referred to, in the case of the Members, Section 9.1.1, Section 9.1.4, Section 9.1.5 and Section 9.1.6 or, in the case of the Parent, Section 9.2.1 exceeds $600,000 excluding in calculating such amount any De Minimis Claims but not Excess De Minimis Claims (the “Deductible”); provided, howeverafter which Parent, that no eventon the one hand, claim or item of Loss and the Members jointly and severally, on the other hand, will constitute a Loss and indemnification will not be available responsible for all Losses, including Losses with respect to such event, claim or item of Loss (nor will any such event, claim or item of Loss be counted towards the Deductible) unless such event, claim or item of Loss, together with all related events, claims or items of Loss, results in a Loss of $50,000 or moreExcess De Minimis Claims, in which case excess of the Investor Indemnified Parties will be entitled Deductible up to indemnification for the full a maximum aggregate amount of Losses related equal to such event, claim or item of Loss subject Thirteen Million Six Hundred and Fifty Dollars ($13,650,000) (the “Liability Cap”). Notwithstanding anything herein to the contrary, (A) none of the De Minimis Claim limitation, the Deductible and or the other limitations set forth herein Liability Cap will apply (and such Losses will be counted towards i) in the Deductible); case of fraud, intentional misrepresentation or willful misconduct or (ii) for an aggregate amount in excess of $50,000,000; providedwith respect to Members’ indemnification obligations pursuant to Section 9.1.2, however that claims for (B) the Deductible or the Liability Cap will not apply with respect to the Members’ indemnification obligations pursuant to Section 9.1.7, and (C) the Liability Cap will not apply (i) with respect to any breach of any Sections 2.1 (Organization; Predecessors; Subsidiaries), 2.2 (Capitalization of the Specified Representations shall not be subject to the foregoing limitations Companies), 2.3 (Organization; Power and shall not be included in the determination of whether a limitation has been reached. In additionAuthorization), 2.5 (Noncontravention), the Losses incurred by any Investor shall be determined on penultimate sentence of 2.6.1 (Financial Statements), 2.9.1 (Ownership of Assets), 2.17 (Employee Benefit Plans), 2.18 (Environmental Matters), the basis last sentence of the number of Purchased Securities purchased by such Investor 2.25.6 (Employees), 2.30 (No Brokers), 3.1 (Organization), 3.2 (Power and Authorization), 3.4 (Noncontravention) or such Investor’s Affiliate3.5 (No Brokers), as applicableor (ii) hereunder and not on the basis of any other shares of Common Stock beneficially owned by such Investor, whether acquired prior with respect to Members’ indemnification obligations pursuant to Section 10 or after the consummation of the TransactionsSection 9.1.8.

Indemnification Limits. The Investor (a) Subject to the remainder of this Section 8.5 and except for fraud, the indemnification provisions set forth in this Article 8 shall be the sole and exclusive remedy for the Indemnified Parties Party for a breach of any representation, warranty or covenant by the Indemnifying Party and shall not be entitled in lieu of any rights the Indemnified Party may have under law or in equity with respect to recover any Losses such breaches or otherwise. Except for claims based on fraud or claims under Section 8.2(d), the maximum aggregate liability of all Stockholders under Section 8.2 shall be limited to fifty percent (50%) of the Merger Consideration actually paid to the Stockholders (the “Maximum Amount”). Parent and the Stockholders shall each be responsible for one-half of any Damages resulting from Section 8.2(d) in excess of the Five Hundred Thousand Dollars ($500,000), which initial amount 52 shall be the obligation of Parent and Surviving Corporation; provided however, in no event shall the maximum aggregate liability of all Stockholders under Section 8.2(d), exceed Five Million Dollars ($5,000,000) (the “Maximum Interference Liability”). If Parent receives any damages or amounts in settlement from Conceptus as a result of the Interference Requests, Parent and the Stockholders shall share equally in such damages or amounts received in settlement. Any claim for indemnification pursuant to Section 4.12(b8.2(d) (i) unless and until must be made by the Investor Indemnified Parties’ aggregate claims therefor exceed $500,000end of the Contingent Period. If any such claim is not made by the end of the Contingent Period, at which time the Investor Indemnified Parties Stockholders shall not have any further liability under Section 8.2(d). If Parent receives any damages or amounts in settlement as a result of the Musket Litigation, the Stockholders shall be entitled to recover Losses only all such damages or amounts received in settlement. The maximum liability of each particular Stockholder, including the Principal Stockholders, as an Indemnifying Party under Section 8.2 shall be limited to such Stockholder’s interest in the Escrow Fund and the Contingent Merger Consideration, if any; provided that no Stockholder shall be required to refund to Parent any Merger Consideration that has been previously distributed to such Stockholder. Except for claims based on fraud or related to the extent that Parent’s failure to pay the Merger Consideration under Sections 1.8 and 1.9, the maximum aggregate amount liability of Investor Indemnified Parties’ indemnifiable Losses exceeds such amount (the “Deductible”); provided, however, that no event, claim or item of Loss will constitute a Loss and indemnification will not be available with respect to such event, claim or item of Loss (nor will any such event, claim or item of Loss be counted towards the Deductible) unless such event, claim or item of Loss, together with all related events, claims or items of Loss, results in a Loss of $50,000 or more, in which case the Investor Indemnified Parties will be entitled to indemnification for the full amount of Losses related to such event, claim or item of Loss subject to the Deductible Parent and the other limitations set forth herein Surviving Corporation under Section 8.3 shall be limited to an amount equal to fifty percent (and such Losses will be counted towards the Deductible); or (ii50%) for an aggregate amount in excess of $50,000,000; provided, however that claims for breach of any of the Specified Representations shall not be subject to the foregoing limitations and shall not be included in the determination of whether a limitation has been reached. In addition, the Losses incurred by any Investor shall be determined on the basis of the number of Purchased Securities purchased by such Investor (or such Investor’s Affiliate, as applicable) hereunder and not on the basis of any other shares of Common Stock beneficially owned by such Investor, whether acquired prior to or after the consummation of the TransactionsMerger Consideration.

Indemnification Limits. The Investor Indemnified Parties Notwithstanding anything contained herein to the contrary: (a) In no event shall the aggregate indemnification obligations of Sellers pursuant to Section 6.2(a) exceed Five Million Eight Hundred Thousand Dollars ($5,800,000.00) (the “Cap”); except that the indemnification obligations of Sellers for claims based on fraud, intentional misrepresentation or for the breach of any Fundamental Representation shall not be entitled subject to recover any Losses the Cap. In no event shall the aggregate indemnification obligations of Purchaser pursuant to Section 4.12(b6.3(a) exceed the Cap; except that the indemnification obligations of Purchaser for claims based on fraud, intentional misrepresentation or for the breach of any Fundamental Representation shall not be subject to the Cap. (b) No amount of indemnity shall be payable by Sellers in the case of claims by any Purchaser Indemnified Party under Section 6.2(a) unless the Purchaser Indemnified Parties have suffered or incurred Losses, on a cumulative basis, in excess of Thirty Thousand Dollars ($30,000.00) (i) unless and until the Investor Indemnified Parties’ aggregate claims therefor exceed $500,000“Indemnification Deductible”), at which time whereupon the Investor Purchaser Indemnified Parties shall be entitled to recover Losses only to indemnification for all such Losses, including the extent Indemnification Deductible; provided that the aggregate amount indemnification obligations of Investor Indemnified Parties’ indemnifiable Losses exceeds such amount (the “Deductible”); providedSellers for claims based on fraud, however, that no event, claim intentional misrepresentation or item of Loss will constitute a Loss and indemnification will not be available with respect to such event, claim or item of Loss (nor will any such event, claim or item of Loss be counted towards the Deductible) unless such event, claim or item of Loss, together with all related events, claims or items of Loss, results in a Loss of $50,000 or more, in which case the Investor Indemnified Parties will be entitled to indemnification for the full amount of Losses related to such event, claim or item of Loss subject to the Deductible and the other limitations set forth herein (and such Losses will be counted towards the Deductible); or (ii) for an aggregate amount in excess of $50,000,000; provided, however that claims for breach of any of the Specified Representations Fundamental Representation shall not be subject to the foregoing limitations and Indemnification Deductible. No amount of indemnity shall not be included payable by Purchaser in the determination case of whether a limitation has been reached. In addition, the Losses incurred claims by any Investor shall be determined on the basis of the number of Purchased Securities purchased by such Investor (or such Investor’s Affiliate, as applicable) hereunder and not on the basis of any other shares of Common Stock beneficially owned by such Investor, whether acquired prior to or after the consummation of the Transactions.Seller Indemnified Party

Indemnification Limits. The Investor (a) Subject to Section 10.6(b), except with respect to (a) claims for fraud, willful misconduct or intentional misrepresentation, (b) claims for breaches of any representations and warranties contained in Sections 3.2 (Capital Structure), 3.3 (Authority and Due Execution) 3.8 (Taxes), 3.13 (Brokers’ and Finders’ Fees) and 3.16 (Employee Benefit Plans) (collectively, the “Fundamental Representation Claims”), and (c) claims for the Company’s, the Representative’s or any Equityholder’s breach of or failure to perform any covenant in this Agreement or the Escrow Agreement (together with the Fundamental Representation Claims, the “Fundamental Claims”), (i) the Escrow Amount is the sole source of recovery available to satisfy any indemnification claim for Indemnified Losses pursuant to this ARTICLE X and (ii) the Indemnified Parties shall not be entitled to recover any Losses indemnification pursuant to Section 4.12(b) (i) this ARTICLE X for any Indemnified Losses unless and until the Investor aggregate amount of all Indemnified Parties’ aggregate claims therefor exceed Losses exceeds $500,000100,000.00 (the “Minimum Loss”); provided, at which time after the Investor Minimum Loss is exceeded, the Indemnified Parties shall be entitled to recover Losses only be paid the entire amount of any Indemnified Losses, including the Minimum Loss, subject to the extent that limitations on recovery set forth in this Section 10.6. With respect to Fundamental Claims, the aggregate amount Indemnified Parties shall not be entitled to indemnification pursuant to this ARTICLE X for Indemnified Losses in excess of Investor the Total Merger Consideration. Notwithstanding anything to the contrary herein, with respect to claims for fraud, willful misconduct or intentional misrepresentation, the Indemnified Parties’ indemnifiable Losses exceeds such amount (the “Deductible”)Parties shall be entitled to indemnification for all Indemnified Losses, without limitation; provided, however, that no event, claim or item of Loss will constitute a Loss and indemnification will not Stockholder shall be available with respect to such event, claim or item of Loss (nor will any such event, claim or item of Loss be counted towards the Deductible) unless such event, claim or item of Loss, together with all related events, claims or items of Loss, results in a Loss of $50,000 or more, in which case the Investor Indemnified Parties will be entitled to indemnification liable for the full amount of Losses related to such eventfraud, claim willful misconduct or item of Loss subject to the Deductible and the other limitations set forth herein (and such Losses will be counted towards the Deductible); or (ii) for an aggregate amount in excess of $50,000,000; provided, however that claims for breach intentional misrepresentation of any of the Specified Representations shall not be subject to the foregoing limitations and shall not be included other Stockholder acting in the determination of whether a limitation has been reached. In addition, the Losses incurred by any Investor shall be determined on the basis of the number of Purchased Securities purchased by such Investor (or such InvestorStockholder’s Affiliate, capacity as applicable) hereunder an individual and not on the basis of any other shares of Common Stock beneficially owned by such Investor, whether acquired prior to or after the consummation behalf of the TransactionsCompany.