Common use of Liability Offset Clause in Contracts

Liability Offset. The Parent and the Acquisition Corp. agree that the right to indemnification pursuant to this ARTICLE VIII shall constitute the Parent’s and the Surviving Corporation’s sole and exclusive remedy and recourse against the Stockholders in connection with the transactions contemplated hereby, including without limitation, relating to any misrepresentation or inaccuracy in or breach of any of the representations or warranties or covenants hereby whether in tort, contract or otherwise. Except with respect to the Excluded Obligations the maximum aggregate liability of the Stockholders shall be limited to *** of the Merger Consideration (valuing such shares of Parent Common Stock included in the Merger Consideration as provided in Sections 2.1(a) and 2.1(b) above as the case may be) (the “Offset Amount”) and of any Stockholder shall be limited to such Stockholder’s Pro Rata Portion of the Losses up to such Stockholder’s Pro Rata Portion of the Offset Amount and the maximum aggregate liability of the Stockholders (for the Excluded Obligations or otherwise hereunder) shall be limited to the Merger Consideration and of any Stockholder (for the Excluded Obligations or otherwise hereunder) shall be limited to such Stockholder’s Pro Rata Portion of the Losses up to such Stockholder’s Pro Rata Portion of the Merger Consideration (valuing such shares of Parent Common Stock included in the Merger Consideration as provided in Sections 2.1(a) and 2.1(b) above as the case may be). The Parent shall first offset against the Future Consideration any amounts due to it pursuant to this ARTICLE VIII.

Liability Offset. The Parent and (a) If the Acquisition Corp. Closing occurs, the Buyer agree that the right to indemnification pursuant to this ARTICLE VIII Article XI shall constitute the Parent’s and the Surviving CorporationBuyer’s sole and exclusive remedy and recourse against the Stockholders in connection with the transactions contemplated hereby, including without limitation, relating for Losses attributable to any misrepresentation or inaccuracy in or breach of any of the representations or warranties or covenants hereby whether in tort, contract or otherwiseIndemnifiable Matters. Except with respect to the Excluded Obligations Obligations, the maximum aggregate liability of the Stockholders collectively shall be limited to *** of and the Merger Consideration (valuing such shares of Parent Common Stock included in the Merger Consideration as provided in Sections 2.1(a) and 2.1(b) above as the case may be) (the “Offset Amount”) and maximum liability of any Stockholder shall be limited to *** and the maximum liability of the Stockholders collectively for the Excluded Obligations shall be limited to the Purchase Price and the maximum liability of any Stockholder for the Excluded Obligations shall be limited to such Stockholder’s Pro Rata Portion of the Losses up to such Stockholder’s Pro Rata Portion of the Offset Amount Purchase Price. No Stockholder shall have liability for breach of the covenants set forth in Article VII of this Agreement except in the event of such Stockholder’s involvement in, consent to, or facilitation of the breach of such covenants in Article VII. (b) If the Closing occurs, the Stockholders agree that the right to indemnification pursuant to this Article XI shall constitute the Stockholders’ sole and exclusive remedy and recourse against the Buyer for Losses attributable to any Indemnifiable Matters. The maximum aggregate liability of the Stockholders (for the Excluded Obligations or otherwise hereunder) Buyer hereunder shall be limited to ***. (c) The Buyer shall have the Merger Consideration and of any Stockholder (for the Excluded Obligations or otherwise hereunder) shall be limited right to such Stockholder’s Pro Rata Portion of the Losses up to such Stockholder’s Pro Rata Portion of the Merger Consideration (valuing such shares of Parent Common Stock included in the Merger Consideration as provided in Sections 2.1(a) and 2.1(b) above as the case may be). The Parent shall first offset against the Future Equity Consideration (not yet issued) any amounts due to it pursuant to this ARTICLE VIIIArticle XI; provided, however, Buyer's right of set-off is available only to the [***] Certain information in this agreement has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. extent, according to the procedures, and in such amount as Buyer is entitled to indemnification under the provisions of this Article XI.

Liability Offset. The (a) If the Closing occurs, the Parent and the Acquisition Corp. Buyer agree that the right to indemnification pursuant to this ARTICLE VIII Article X shall constitute the Parent’s and the Surviving CorporationBuyer’s sole and exclusive remedy and recourse against the Stockholders in connection with the transactions contemplated hereby, including without limitation, relating Sellers for Losses attributable to any misrepresentation or inaccuracy in or breach of any of the representations or warranties or covenants hereby whether in tortIndemnifiable Matters, contract or otherwiseexcept for fraud. Except with respect to the Excluded Obligations and fraud, the maximum aggregate liability of the Stockholders Sellers collectively shall be limited to $*** of the Merger Consideration (valuing such shares of Parent Common Stock included in the Merger Consideration as provided in Sections 2.1(a) and 2.1(b) above as the case may be) (the “Offset Amount”) and of any Stockholder Seller shall be limited to such StockholderSeller’s Pro Rata Portion of the Losses up to such StockholderSeller’s Pro Rata Portion of the Offset Amount and the maximum aggregate liability of the Stockholders (Sellers collectively for the Excluded Obligations or otherwise hereunder) shall be limited to the Merger Consideration Purchase Price actually paid to the Sellers and of any Stockholder (Seller for the Excluded Obligations or otherwise hereunder) shall be limited to such StockholderSeller’s Pro Rata Portion of the Losses up to such StockholderSeller’s Pro Rata Portion of the Merger Consideration (valuing Purchase Price actually paid to such shares of Seller. If the Parent Common Stock included or Buyer incur any indemnified Losses that have been finally resolved by the parties in accordance with this Agreement, the Merger Consideration Parent or Buyer, as applicable, is authorized, subject to the limitations provided in Sections 2.1(a) this Article X, at any time and 2.1(b) above as from time to time to the case may be)fullest extent permitted by law to set-off and apply any Earnout Consideration payable to the Sellers pursuant to this Agreement against such indemnifiable Losses. The Notwithstanding the foregoing sentence, the Parent or Buyer shall be required to first offset set-off first against the Future Escrow Deposit and shall have the right to set-off against the Earnout Consideration any amounts due and payable to it pursuant to this ARTICLE VIIIArticle X. (b) Notwithstanding anything to the contrary herein, ***. Notwithstanding the foregoing, the Threshold shall not apply with respect to the Excluded Obligations and fraud. [***] Certain information in this agreement has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. (c) Notwithstanding anything in this Agreement to the contrary, the Offset Amount and the Threshold shall not apply to any claim by the Purchaser in respect of any Losses arising in connection with any misrepresentation or breach of warranty made or given by the HoldCo Shareholders in any of the sections in Article III or of the Sellers in any of the sections in Article IV. (d) Notwithstanding anything in this Agreement to the contrary, for purposes of the indemnification obligations under this Article X, all of the representations and warranties set forth in this Agreement, or any other agreement, certificate or schedule executed or delivered in connection herewith or therewith that are qualified as to “material,” “materiality,” “material respects,” “Material Adverse Effect” or words of similar import or effect shall be deemed to have been made without any such qualification for purposes of determining the amount of Losses resulting from, arising out of or relating to any such breach of representation or warranty. (e) Notwithstanding anything in this Agreement to the contrary, the Sellers shall not be obligated to indemnify the Parent and Buyer in respect of Losses related to Taxes where the Losses arise from, or are the result of, (i) an amendment to a Tax Return that is made by the Parent or the Buyer without the Sellers consent unless so required under Law or (ii) an audit that is requested by, or otherwise purposefully initiated in any manner by the actions of, the Parent or the Buyer.

Liability Offset. The Parent and (a) If the Acquisition Corp. Closing occurs, the Buyer agree that the right to indemnification pursuant to this ARTICLE VIII Article XI shall constitute the Parent’s and the Surviving CorporationBuyer’s sole and exclusive remedy and recourse against the Stockholders in connection with the transactions contemplated hereby, including without limitation, relating Sellers for Losses attributable to any misrepresentation or inaccuracy in or breach of any of the representations or warranties or covenants hereby whether in tort, contract or otherwiseIndemnifiable Matters. Except with respect to the Excluded Obligations Obligations, the maximum aggregate liability of the Stockholders Securityholders collectively shall be limited to *** of the Merger Consideration (valuing such shares of Parent Common Stock included in Escrow Deposit and the Merger Consideration as provided in Sections 2.1(a) and 2.1(b) above as the case may be) (the “Offset Amount”) and maximum liability of any Stockholder Securityholder shall be limited to such StockholderSecurityholder’s Pro Rata Portion of the Losses up to such StockholderSecurityholder’s Pro Rata Portion of the Offset Amount Escrow Deposit and the maximum aggregate liability of the Stockholders (Securityholders collectively for the Excluded Obligations or otherwise hereunder) shall be limited to the Merger Consideration Purchase Price and the maximum liability of any Stockholder (Securityholder for the Excluded Obligations or otherwise hereunder) shall be limited to such StockholderSecurityholder’s Pro Rata Portion of the Losses up to such StockholderSecurityholder’s Pro Rata Portion of the Merger Consideration Purchase Price, [***]. (valuing such shares of Parent Common Stock included in b) [***]. (c) If the Merger Consideration as provided in Sections 2.1(a) Closing occurs, the Securityholders agree that the right to indemnification pursuant to this Article XI shall constitute the Securityholders sole and 2.1(b) above as exclusive remedy and recourse against the case may be)Buyer for Losses attributable to any Indemnifiable Matters. The Parent maximum liability of the Buyer hereunder shall first be limited to the Purchase Price. (d) The Buyer shall have the right to offset against the Future Installment Consideration and the Equity Consideration any amounts due to it pursuant to this ARTICLE VIIIArticle XI; provided, however, Buyer's right of set-off is available according to the procedures and in such amount as Buyer is entitled to indemnification under the provisions of this Article XI.