Indemnity Cap. Notwithstanding anything to the contrary, express or implied contained in this Agreement, except with respect to (i) any fraud or willful misconduct by the Stockholders in connection with this Agreement, or (ii) any Excluded Liabilities described in Section 1.4 above, for which the Company, DiscCo and the Stockholders are and shall remain solely liable pursuant to this Agreement and for which there shall be no Indemnity Cap, the Buying Indemnified Parties’ sole and exclusive right to recover any Damages from the Selling Indemnifying Parties, or any of them, under this Article VI with respect to Claims resulting from or relating to any misrepresentation or breach of warranty or failure to perform any covenant or agreement contained in this Agreement shall be limited to $7,500,000 or fifty (50%) percent of the cash amount of the Base Purchase Price paid at Closing to both of the Stockholders on the Closing Date (the “Indemnity Cap”). For the avoidance of doubt, (i) the aggregate amount of Damages for which all Selling Indemnifying Parties may be liable pursuant to this Article VI shall not exceed the Indemnity Cap; and (ii) the aggregate amount of Damages for which any one Stockholder may be liable pursuant to this Article VI shall be limited to an aggregate total of $3,750,000 from each Stockholder. There shall be no Indemnity Cap in respect of Excluded Liabilities or Pre-Closing Tax liabilities for which the Selling Indemnifying Parties are liable under Section 6.1(b), or Assumed Liabilities for which the Buying Indemnifying Parties are liable under Section 6.2(b).
Indemnity Cap. The aggregate Losses of the Seller Indemnifying Parties, pursuant to Section 7.02(a), shall not exceed one million dollars ($1,000,000) (the “Indemnity Cap”), other than with respect to Losses arising out of (a) fraud or willful misconduct or (b) breaches of any Fundamental Representations. Notwithstanding anything to the contrary contained herein, in no event shall the aggregate Losses of the Seller Indemnifying Parties exceed the sum of (i) the Total Proceeds and (ii) the amount payable under the Personal Goodwill Sale Agreement.
Indemnity Cap. For the purposes of clause 7.03 (d) of Section 2 the Indemnity Cap shall be twenty million pounds Sterling (£20,000,000) escalated on the same basis as the tariff pursuant to Clause 6.2.
Indemnity Cap. Notwithstanding anything to the contrary, express or implied contained in this Agreement, except with respect to (i) any fraud or willful misconduct by the Company Stockholder in connection with this Agreement, or (ii) any Pre-Closing Tax Liabilities payable by the Company Stockholder for which the Company Stockholder is liable pursuant to Section 4.11 of this Agreement (for which there shall be no “Indemnity Cap”), the Parent’s sole and exclusive right to recover any Damages from the Company Stockholder under this Article VI with respect to Claims resulting from or relating to any misrepresentation or breach of warranty or failure to perform any covenant or agreement by the Company Stockholder contained in this Agreement shall be limited to the sum of Four Million ($4,000,000) Dollars (the “Indemnity Cap”). Payment of any indemnified amount by the Company Stockholder shall be paid solely by returning to the Parent, first the appropriate amount of Additional Shares (valued at the closing price of the Parent’s Common Stock, as traded on the Nasdaq Capital Markets (or other national securities exchange) on the trading day immediately prior to the Closing Date) and, then, only if the amount of the Claim exceeds the then value of the Additional Shares, an appropriate number of Make-Whole Shares, valued at the 2018 Market Value, subject to the $5.00 floor price. Notwithstanding the foregoing, the exercise of any indemnity provisions, including calculation of the Indemnity Cap, as to the Additional Merger Consideration and the Make-Whole Shares, shall be net of any tax liability arising from or related to the satisfaction of any indemnity obligations through return of any Additional Merger Consideration and Make-Whole Shares. There shall be no Indemnity Cap in respect of the Assumed Liabilities for which the Parent is liable under Section 6.2.
Indemnity Cap. (i) Notwithstanding any provision contained to the contrary in this Agreement, the Exhibits and the related agreements, the aggregate liability of Xx. Xxxxx, on behalf of the Sellers and the Companies hereunder, shall be limited to Eight Million Five Hundred Ten Thousand Dollars ($8,510,000) (the “Indemnity Cap Amount”). The Indemnity Cap Amount applies to, but is not limited to, all representations, warranties indemnification obligations, covenants Indebtedness, Indemnifiable Claims, Third Party Claims, Claims Liabilities or Adverse Consequences resulting from any Basis; the Indemnity Cap Amount is absolute; and Buyer absolutely, unconditionally and irrevocably waives, releases and forever discharges the right to pursue any amounts greater than the Indemnity Cap Amount, except as explicitly excluded from the Indemnity Cap Amount in this §8(i)(i). The Indemnity Cap Amount shall not apply to any breach of any representations, warranties and/or covenants and/or any indemnification obligations given by Xx. Xxxxx, on behalf of the Sellers and the Companies, with respect to any matters that concern or pertain to the following: (A) Taxes of the Sellers and/or Companies prior to the Closing Date; (B) Medicare and Medicaid obligations of the Sellers and/or Companies prior to the Closing Date; (C) fraud or intentional misrepresentations asserted by Buyer made by Xx. Xxxxx in this Agreement, including the Exhibits and Disclosure Schedules attached hereto; and (D) fraud or intentional misrepresentations asserted by third parties shall not be capped after final judgments not appealable by right are obtained by such third parties containing specific findings that Xx. Xxxxx, Dr. Fireman or Companies engaged in fraud or intentional misrepresentations, (however, nothing shall preclude Buyer from seeking indemnification for third party fraud or intentional misrepresentation claims up to such Indemnity Cap amount until such final judgment not appealable by right is issued).
(ii) Notwithstanding any provisions contained herein to the contrary, the aggregate indemnification liability of Buyer shall be limited to the Indemnity Cap Amount, with respect to the representations, warranties and covenants specified in §3(b), §5 and §6 of this Agreement and the indemnification obligations set forth in § 8 of this Agreement.
Indemnity Cap. (a) The Sellers’ maximum aggregate liability for Losses under Section 10.1 (other than Losses arising from any breach of any of the Fundamental Warranties, any of the Warranties in Section 8.14 or any breach of any covenant or obligation of any Seller) shall in no event exceed an amount equal to €25,000,000 (the General Cap);
(b) The Sellers’ maximum aggregate liability for Losses under Section 10.1 arising from any breach of any of the Fundamental Warranties or any breach of any covenant or obligation of any Seller shall in no event exceed an amount equal to 100% of the Aggregate Price (as finally determined pursuant to Article 7); and
(c) The Sellers’ maximum aggregate liability for Losses under Section 10.1 arising from any breach of any of the Warranties in Section 8.14 shall in no event exceed an amount equal to €50,000,000; provided that if and to the extent that the Sellers’ aggregate liability for Losses arising from any breach of any of the Warranties in Section 8.14 exceeds €25,000,000, then any such Losses in excess of €25,000,000 shall count towards the General Cap, up to the remaining amount of the General Cap at such time;
Indemnity Cap. The cumulative obligation of CEP to the Xxxxxxx Indemnitees with respect to all Xxxxxxx Indemnified Claims pursuant to Section 7.4(a)(i) will be limited to the Indemnity Cap; provided, however, that Claims for indemnification pursuant to (1) Section 7.4(a)(i) with respect to a breach by CEP of its representations and warranties in Section 3.2(a), Section 3.2(b), Section 3.2(d)(iv) and Section 3.2(m), (2) Section 7.4(a)(ii), and (3) Section 7.4(a)(iii) shall not be subject to the Indemnity Cap.
Indemnity Cap. The parties acknowledge and agree that in no event shall Seller be required to indemnify Buyer in an amount exceeding the Purchase Price; provided, however, that there shall be no such limit in connection with any rights (a) to bring a claim, demand, suit or cause of action otherwise available based upon (i) any allegation or allegations that Seller had an intent to defraud or made a willful or intentional misrepresentation or willful omission of a material fact in connection with this Agreement and the transactions contemplated hereby or (ii) any claim by Buyer of any nature whatsoever based upon, arising out of or related to any Excluded Liability; or (b) to enforce any judgment of a court of competent jurisdiction in connection with any claim, demand, suit or cause of action describe in clause (a) of this Section 6.05.
Indemnity Cap. 3.1 Clause 17.1 of the XAP Agreement shall be supplemented at the end with the following additional sentence: “CCL’s maximum cumulative liability for all third party claims arising out of or in connection with this clause 17 of the XAP Agreement shall in no circumstances exceed [***]. CCL undertakes, upon request from CSR, to contribute to the payment of damages awarded by a court of competent jurisdiction against CSR or a CSR sub-licensee, up to [***] to CSR by way of indemnity for damages and costs suffered by CSR if CSR or a CSR sub-licensee is subject to one or more claims by a third party that the XAP Technology makes unauthorised use of intellectual property rights. For the avoidance of doubt, the cumulative total of CCL’s contributions for such unauthorised use of intellectual property rights by XAP Technology shall not exceed [***].”
3.2 A new clause 17.5 shall be added to the XAP Agreement as follows: “If an intellectual property rights infringement claim is made by a third party against CCL arising out of CSR’s or a CSR sub-licensee’s use of the XAP Technology (a “Claim”), CSR will defend CCL against the Claim and CSR will pay all damages and costs in excess of [***] finally awarded by a court of competent jurisdiction attributable to such Claim, provided that CCL:
(a) promptly notifies CSR in writing that a Claim has been received; and
(b) makes no admissions in respect of the Claim; and
(c) gives CSR sole control of the defence and settlement of the Claim; and
(d) provides CSR, at CSR’s cost, all available information in its possession, together with all necessary assistance and authority to defend the Claim;
(e) is not in breach of the XAP Agreement or any of the Related Agreements; and
(f) has not settled the Claim without CSR’s prior written consent. CSR shall not be responsible for any costs or fees incurred by CCL after CSR has assumed the defence of a Claim. [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested with respect to the omitted portions.
Indemnity Cap. Notwithstanding any contrary provision in this Agreement, the maximum aggregate liability of Seller shall be limited as follows:
(1) All claims (other than a claim in respect of the Seller’s Representations and Warranties given in Sections 5.1(A), 5.1(B), 5.1(C)(i), 5.1(C)(iv), 5.1(D) and 5.1(F), collectively the “Fundamental Representations”) shall not exceed an amount equal to eight percent of the Purchase Price.
(2) All claims shall not exceed an amount equal to the Purchase Price.
