Limitations of Indemnity. Notwithstanding any provisions herein to the contrary, (i) no Indemnifying Party shall be required to indemnify, defend or hold harmless Indemnified Parties pursuant to Section 3.4, until such time as the aggregate amount of Losses sustained, suffered or incurred, or which may be sustained, suffered or incurred exceeds in the aggregate the sum of $50,000 (the "THRESHOLD AMOUNT"), and then such recovery shall include the full amount of any such Losses, including the Threshold Amount, provided that for the sole purpose of calculating whether the Threshold Amount has been reached, any materiality provisions contained in the representations and warranties shall be disregarded, and (ii) the aggregate liability of Spectra for Losses as to which indemnification may be sought pursuant to Section 3.4 shall not exceed $7,365,500 (the "CAP"); provided, however, (1) that the Cap shall not be applicable to a Claim for indemnification which may be sought pursuant to Section 3.4(a) relating to or arising out of any alleged misstatement of or omission from the representations and warranties contained in Sections 3.1(cc) to (kk) and Section 3.1(yyy) relating to Spectra's Intellectual Property, (2) that the Threshold Amount shall not be applicable to a Claim for indemnification which may be sought pursuant to Section 3.4(b) and (3) that neither the Threshold Amount nor the Cap shall be applicable to (A) a Claim for indemnification which may be sought pursuant to Section 3.4(a) relating to or arising out of non-compliance with the covenants set forth in Sections 4.1 (hh), (B) a Claim for indemnification which may be sought pursuant to Section 3.4(a) relating to or arising out of any alleged misstatement of or omission from the representations and warranties contained in Section 3.1(w) relating to loans to current or former employees, directors or consultants of Spectra or (C) a Claim that is based on fraud on the part of Spectra or the Spectra Shareholders.
Limitations of Indemnity. Notwithstanding the foregoing, (i) no amounts shall be payable under Section 9.1(a)(i) unless and until the aggregate amount otherwise payable in the absence of this clause exceeds $125,000 (the “Deductible”), in which event Sellers shall be liable for all amounts in excess of the Deductible payable under Section 9.1(a)(i); and (ii) no claim for indemnification under Section 9.1(a)(i) shall first be asserted after the 18-month anniversary of the Closing Date; provided, however, that a claim for indemnification under Sections 4.7(b) and Section 5.1 (Title to Stock) may be asserted at any time prior to the expiration of the statute of limitations applicable thereto; provided further, that a claim for indemnification under Section 4.13 (Employee Benefit Plans; ERISA), Section 4.23 (Intellectual Property), Section 4.22 (Environmental Matters), Section 4.34 (Compliance with Laws), Section 4.17 (Federal Health Care Program and Third-Party Payor Participation), Section 4.18 (Health Care Regulatory Litigation), Section 4.19 (Compliance with Health Care Laws) may be asserted at any time prior to the three-year anniversary of the Closing Date. In no event shall the amount payable under Section 9.1(a)(i) exceed $4,000,000 (the “Cap”); provided, however, that the Cap for a breach of Section 4.7(b) and Section 5.1 (Title to Stock), shall be 100% of the Purchase Price. Notwithstanding anything herein to the contrary, the Deductible shall not apply to a claim for breach of any representation and warranty set forth in Section 4.3 (Authorization; Binding Obligations), Section 4.13 (Employee Benefit Plans; ERISA), Section 4.14 (Taxes), Section 4.17 (Federal Health Care Program and Third Party Payor Participation), Section 4.19 (Compliance with Health Care and Other Laws), Section 4.22 (Environmental Matters) or Section 4.34 (Brokers; Certain Expenses), and neither the Deductible nor the Cap shall apply to a claim for fraud or any Excluded Liability. Notwithstanding anything herein to the contrary, in no event shall the amount payable with respect to claims for indemnification related to Excluded Liabilities (other than claims with respect to Section 4.14 (Taxes) and fraud, for which the Cap shall not apply) exceed $7,500,000, in the aggregate (the “Aggregate Cap”).
Limitations of Indemnity. (a) Notwithstanding the foregoing, no claim for indemnification under Section 8.1 shall first be asserted after the two year anniversary of the Closing Date; provided, however, that (i) a claim for indemnification under Section 3.2 (Corporate Power), Section 3.6 (Capitalization), Section 4.1 (Ownership of Capital Stock) and Section 4.2 (Legal Capacity) shall survive indefinitely, and (ii) a claim for indemnification under Section 3.12 (Benefit Plans), Section 3.13 (Taxes) and Section 3.19 (Environmental Matters) shall survive until the expiration of the applicable statute of limitations.
(b) Claims for indemnification by Buyer under this Article IX shall be reduced to the extent of any insurance proceeds received by or paid on behalf of the Indemnitee from any insurance policy in effect immediately prior to the Closing (the "Pre-Closing Insurance Policies") (and for clarification, not from insurance policies bound by Buyer following the Closing with respect to the Company) covering the occurrence(s) that is or are the basis for such claims. In addition, where applicable, Buyer agrees to, and shall cause the Company to, submit all claims covered by the Pre-Closing Insurance Policies to the respective insurance carrier and pursue recovery from the insurers under such Pre-Closing Insurance Policies in accordance with the terms of such policies.
Limitations of Indemnity. Notwithstanding the foregoing, (i) no amounts shall be payable by the Shareholders, on the one hand, or A4S, on the other hand, under Section 8.1 of this Agreement unless and until the aggregate amount otherwise payable by the Shareholders or A4S, as applicable, in the absence of this clause exceeds $75,000 (the “Basket”), in which event all such amounts in excess of such $75,000 shall be due, and (ii) no claim for indemnification under Section 8.1 shall first be asserted more than 24 months after the Closing Date; provided, however, that a claim for indemnification under Sections 4.1, 4.2, 4.8, 4.10, 4.11, 4.16, 4.20, 5.1, 5.3, 5.4 or 5.7 may be asserted at any time prior to the expiration of the statute of limitations applicable thereto, including any extension thereof agreed to by the Shareholders or A4S, as applicable. In no event shall either A4S, on the one hand, or the Shareholders, on the other hand and taken together, be required to pay in excess of an amount equal to the cumulative amount of the Merger Consideration (based upon Fair Market Value) actually received by the Shareholders (the “Cap”). Neither the Basket nor the Cap shall apply to a claim for fraud. Notwithstanding anything to the contrary in this Agreement, all claims for indemnification by any of A4S or the Merger Sub from the Shareholders shall be first satisfied by the surrender of the number of shares of A4S Common Stock calculated by dividing the aggregate amount of Losses subject to indemnification by the Fair Market Value.
Limitations of Indemnity. Notwithstanding any provisions herein to the contrary:
Limitations of Indemnity. (a) Notwithstanding the foregoing, (i) no amounts shall be payable under Section 9.1(a)(i) unless and until *; and (ii) no claim for indemnification under Section 9.1(a)(i) shall first be asserted after the * anniversary of the Closing Date; provided, however, that a claim for indemnification under Sections 4.3 (Authorization; Binding Obligations), 4.7(b) (Title to Stock) and 5.1 (Ownership of Capital Stock), 4.13 (Employee Benefit Plans; ERISA), 4.14 (Taxes), 4.20 (Environmental Matters) and 4.31 (Compliance with Laws) may be asserted at any time prior to the expiration of the statute of limitations applicable thereto. * Notwithstanding anything herein to the contrary, the * shall not apply to a claim for breach of any representation and warranty set forth in Section 4.3 (Authorization; Binding Obligations), Section 4.13 (Employee Benefit Plans; ERISA), Section 4.14 (Taxes), Section 4.20 (Environmental Matters) or Section 4.30 (Brokers; Certain Expenses) and * shall apply to a claim for fraud.
(b) The liability of Sellers under the indemnification provisions of this Article IX shall be recovered first from the Escrow Fund other than for claims for breach of any representations and warranties set forth in Article V and Section 7.2.
Limitations of Indemnity. (a) Neither the Parent, the Purchaser, nor the Surviving Corporation, nor any other Person entitled to indemnification under Section 10.2 (the “Parent Indemnified Parties”) shall make a Claim for indemnifiable Losses pursuant to Sections 10.2(a), 10.2(b), 10.2(c), 10.2(f) and 10.2(g) unless the aggregate amount of such indemnifiable Losses exceeds One Million Dollars ($1,000,000) (the “Threshold Amount”) at which point the Parent Indemnified Parties shall only be entitled to recover Losses in excess of the Threshold Amount; provided, however, that the Threshold Amount for Claims for indemnifiable Losses pursuant to Section 10.2(c) shall be Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate. The Threshold Amount shall not apply to breaches or inaccuracies of any representations and warranties contained in Section 3.7 (Title), Section 3.31 (Taxes and Tax Returns), Section 3.27 (Environmental Laws), Section 4.1 (Authorization) or Section 4.2 (Title to Securities). The aggregate maximum Liability of the Stockholders, Warrant Holders and Accredited Option Holders for indemnifiable Losses under Sections 10.2(a), 10.2(b), 10.2(c), 10.2(e), 10.2(f) and
Limitations of Indemnity. Notwithstanding the foregoing, (i) no claim for indemnification shall be asserted by any Buyer Indemnified Party with respect to any single Loss in an amount less than $10,000 (it being understood that the aggregate amount of all Losses arising from the same operative facts and circumstances shall be deemed a single Loss); (ii) no amounts shall be payable by the Seller Indemnified Parties under this Section 7 (other than in the case of actual fraud) unless and until the aggregate amount otherwise payable by the Seller Indemnified Parties in the absence of this clause exceeds $300,000, in which event such amounts in excess of such amount (but only such amounts in excess) shall be due; (iii) the Seller Indemnified Parties shall not be liable for indemnification hereunder (other than in the case of actual fraud) in an aggregate amount in excess of $4,000,000 (less unreimbursed amounts paid by the Seller Indemnified Parties (including reasonable legal fees and expenses) after the date hereof in connection with Third Party claims based on the matters set forth on Schedule 3.13); and (iv) no claim for indemnification under this Section 7 shall first be asserted against the Seller Indemnified Parties after December 31, 1998; provided, however, that (x) a claim for indemnification related to a breach of the first sentence of Section 3.9 may be asserted at any time, and (y) a claim for indemnification related to a breach of Section 3.13, Section 3.14 or Section 3.16 or the matters described on Schedule 3.13, Schedule 3.14 or Schedule 3.16 may be asserted at any time prior to the expiration of the statute of limitations applicable thereto. Claims by a Seller Indemnified Party against the Buyer Indemnified Parties for indemnification with respect to the Assumed Liabilities may be asserted at any time prior to the expiration of the statute of limitations applicable thereto.
Limitations of Indemnity. Notwithstanding the foregoing, (a) no amounts shall be payable by Seller or Buyer under Section 10.1(a), Section 10.1(b) and Section 10.3, as applicable, unless and until the aggregate amount otherwise payable by such Party in the absence of this clause exceeds $50,000 (the “Basket”), in which event all such amounts in excess of the Basket shall be due, and (b) no claim for indemnification under Section 10.1(a) and Section 10.1(b) shall be asserted after the second anniversary of the Closing Date hereof (except with respect to claim for indemnification (i) as a result of breaches of Section 3.1, Section 3.2(a), Section 3.3, Section 3.4, Section 3.10, and Section 3.20, which shall not be asserted after the expiration of the applicable statute of limitations, after giving effect to any extensions or waivers, plus 60 days, and (ii) under Section 10.1(a)(ii), Section 10.1(a)(iii) and Section 10.1(b)(ii) which may be asserted at any time after the Closing Date). In no event shall Seller’s or Buyer’s, as applicable, liability under Section 10.1(a) and Section 10.1(b) exceed $500,000 (the “Cap”); provided, however, that neither the Cap nor the Basket shall apply to any amount payable under Section 10.1(a)(ii), Section 10.1(a)(iii) and under Section 10.1(b)(ii). The amount of any amount payable under Section 10.1 or Section 10.3 shall be reduced by (x) any cash insurance proceeds received on account thereof and (y) any Tax benefit received as a result thereof. Each Party hereto agrees to promptly make a claim against any applicable insurance with respect to any amount payable under this ARTICLE X.
Limitations of Indemnity. Company shall have no obligation under this Agreement for any claim of infringement or misappropriation to the extent that it results from (a) modifications to the Products made other than by Company; (b) failure of Reseller to use updated or modified Products provided by Company to avoid a claim of infringement or misappropriation; (c) compliance by Company with designs, plans or specifications furnished by or on behalf of Reseller; or (d) any opening of or other tampering with a Product by non-Company personnel. 15.4. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND THE EXCLUSIVE REMEDY OF EACH PARTY WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS 16.
