Common use of Limitations on Indemnity Payments Clause in Contracts

Limitations on Indemnity Payments. Notwithstanding anything contained herein to the contrary, the maximum aggregate liability of (a) the Company to all Buyer Indemnified Parties taken together for all Buyer Losses under Section 10.1(a)(i), and (b) the Buyer to all Company Indemnified Parties taken together for all Company Losses under Section 10.1(b)(i) shall, in each such case, be limited to a maximum of 12.5% of the Purchase Price, as adjusted pursuant to Section 3.3. Notwithstanding anything contained herein to the contrary (x) the Company shall not be liable for Buyer Losses under Section 10.1(a)(i) unless and until the aggregate amount of such Buyer Losses collectively exceeds Five Hundred Thousand Dollars ($500,000), and then only to the extent of such excess, and (y) the Buyer shall not be liable for Company Losses under Section 10.1(b)(i) unless and until the aggregate amount of such Company Losses collectively exceeds Five Hundred Thousand Dollars ($500,000), and then only to the extent of such excess. Notwithstanding the foregoing, the limitations and qualifications set forth in this Section 10.2 shall not apply to indemnification (x) for breaches of the representations and warranties contained in Sections 4.1(a), (c), (i)(i), (j) and (q) and 4.2(a) and (b) (except that the limitation set forth in the first sentence of this Section 10.2 shall apply to all claims for indemnification with respect to the matters referred to in this subclause (x) if the applicable Indemnified Party had knowledge of the breach, event or circumstance giving rise to such loss prior to the Closing), or (y) under Section 10.1(a)(ii), (iii), (iv) or (v) or Section 10.1(b)(ii) (iii) or (iv).

Limitations on Indemnity Payments. Notwithstanding anything contained herein to the contrary: (a) Except as otherwise provided herein, following the Closing, the maximum aggregate liability of each Party under this Article IX or otherwise arising out of or relating to this Agreement and the Ancillary Agreements from any and all causes (a) the Company to all Buyer Indemnified Parties taken together for all Buyer Losses under Section 10.1(a)(iwhether based in contract, tort (including negligence), strict liability, law or equity, or any other cause of action), and except in the event of fraud (bincluding intentional misrepresentation) the Buyer to all Company Indemnified Parties taken together for all Company Losses under Section 10.1(b)(i) shallor willful misconduct, in each such case, shall be limited to a maximum of 12.5% of the Purchase Price, as adjusted pursuant to Section 3.3. Notwithstanding anything contained herein to the contrary (x) the Company and shall not be liable for Buyer Losses under Section 10.1(a)(i) unless and until the aggregate amount of such Buyer Losses collectively exceeds Five exceed One Hundred Thousand Dollars ($500,000100,000) (the “Maximum Liability Limit); provided, however, that (i) claims related to Buyer’s failure to pay any amounts due and then only to payable under the extent of such excessNote, the Lease Agreements, the Patent License Agreement and (y) the Buyer Transition Services Agreement shall not be liable for Company Losses under Section 10.1(b)(i) unless and until the aggregate amount of such Company Losses collectively exceeds Five Hundred Thousand Dollars ($500,000), and then only subject to the extent Maximum Liability Limit; (ii) Seller’s aggregate liability arising out of such excess. Notwithstanding the foregoing, the limitations and qualifications set forth in this Section 10.2 shall not apply or relating to indemnification (x) for breaches of the representations and warranties contained in Sections 4.1(a), (c), (i)(i), (j) and (q) and 4.2(a) and (b) (except that the limitation set forth in the first sentence of this Section 10.2 4.5 (Title to and Use of Purchased Assets) shall apply be limited to all claims for indemnification with respect and shall not exceed Nine Million Three Hundred Thirty-Three Thousand Three Hundred Thirty-Three Dollars ($9,333,333); (iii) there shall be no limit to the matters referred aggregate liability of Seller under this Article IX or otherwise arising out of or relating to in this subclause Sections 4.4 (xTaxes) if the applicable Indemnified Party had knowledge of the breach, event or circumstance giving rise to such loss prior to the Closing), or and 4.8 (yBrokers and Finders) under Section 10.1(a)(ii), and subsections (iii) through (vii) of Section 9.2(a) (Third Party Claims, WARN Act violations, bulk sales law, Seller’s employee benefit plans, and Excluded Liabilities), ; and (iv) there shall be no limit to the aggregate liability of Buyer under this Article IX or otherwise arising out of or relating to Section 5.6 (vBrokers and Finders) or Section 10.1(b)(ii) and subsection (iii) or of Section 9.3(a) (ivAssumed Liabilities).

Limitations on Indemnity Payments. Notwithstanding anything contained herein The following are subject to the contraryprocedures, coverage, limitations, exclusions and exceptions of the maximum aggregate liability of R&W Insurance Policy: (a) Subject to Section 9.6(b), an Indemnified Party may not recover Losses from Buyer or Seller, as applicable, in respect of any claim for indemnification under Section 9.2 or Section 9.3, as applicable, unless and until Losses have been incurred, paid or properly accrued by the Company to all Buyer applicable Indemnified Parties taken together for all Buyer Losses under Section 10.1(a)(iin an aggregate amount greater than $20,000 (the “Indemnification Threshold”), and once such Indemnification Threshold has been exceeded, the Indemnified Party will be entitled to recover for such Losses in excess of the Indemnification Threshold, provided, that, for the avoidance of doubt, the Indemnification Threshold will not apply to a claim by a Buyer Indemnified Party for recovery from the R&W Insurance Policy or the matters described on Section 9.2(c) of the Company Disclosure Schedules; any share of the deductible related to the R&W Insurance Policy paid by Buyer Indemnified Party will count toward the Indemnification Threshold to the extent the amount of any such claim exceeds the Indemnification Threshold. (b) Subject to Section 9.6(a), recovery by an Indemnified Party of its Losses in the Buyer aggregate will be subject to all Company Indemnified Parties taken together for all Company the following limitations: (i) With respect to Losses claimed under Section 10.1(b)(i) shall9.2, in each a Buyer Indemnitee will recover all of its Losses as follows: 1. first, from the R&W Insurance Policy; 2. second, to the extent such case, be limited to a maximum of 12.5% Losses exceed the amount recovered from (including by operation of the Purchase Priceretention or the limits thereunder), as adjusted or are not covered, or are denied coverage under, the R&W Insurance Policy, directly from the Seller (inclusive of indemnification claims satisfied pursuant to the Escrow Agreement); (ii) With respect to Losses claimed under Section 3.3. Notwithstanding anything contained herein to the contrary 9.2 (xother than for matters described in Section 9.2(c) of the Company shall not be liable for Buyer Losses under Section 10.1(a)(i) unless and until Disclosure Schedules), the aggregate amount of such Buyer all Losses collectively exceeds Five Hundred Thousand Dollars (for which the Seller may be liable shall not exceed the $500,000), and then only 300,000 held in escrow for indemnification pursuant to the extent Escrow Agreement (other than for Losses due to a breach of such excess, and (y) the Buyer shall not be liable for Company Fundamental Representations or in the case of Fraud). 1. With respect to Losses claimed under Section 10.1(b)(i) unless and until the aggregate amount 9.3, any Seller Indemnitee will recover all of such Company its Losses collectively exceeds Five Hundred Thousand Dollars ($500,000), and then only directly from Buyer; and 2. With respect to the extent of such excess. Notwithstanding the foregoingXxxxxx claimed under Section 9.3, the limitations and qualifications set forth Seller Indemnified Parties will be entitled to recover against Buyer in this Section 10.2 shall not apply to indemnification (x) for breaches excess of the representations and warranties contained in Sections 4.1(a), Purchase Price (c), (i)(i), (j) and (q) and 4.2(a) and (b) (except that the limitation set forth other than in the first sentence case of Fraud). (iii) Any entitlement of an Indemnitee to make a claim against an Indemnifying Party under this Section 10.2 shall apply to all claims for indemnification with respect to the matters referred to in this subclause (x) if the applicable Indemnified Party had knowledge Agreement will be determined without duplication of recovery by reason of the breach, event or circumstance same state of facts giving rise to such loss prior claim constituting a breach of more than one representation, warranty, covenant or agreement and/or an adjustment to the Closing), or (y) under Section 10.1(a)(ii), (iii), Purchase Price. (iv) Notwithstanding any other provision of this Agreement, no party hereto or any of its Affiliates shall have liability for any indirect, exemplary or punitive damages, and Losses indemnifiable hereunder shall not include such damages, except to the extent, if any, such Losses are incurred due to Fraud of a party hereto. (vc) Matters described in Section 9.2(c) of the Company Disclosure Schedules. The matters described in Section 9.2(c) of the Company Disclosure Schedules shall not be limited by any Indemnification Threshold or the ceiling described in Section 10.1(b)(ii) (iii) or (iv9.6(b)(ii).

Limitations on Indemnity Payments. Notwithstanding anything contained herein to the contrary, the maximum aggregate liability of (a) the Company to all Buyer Indemnified Parties taken together for all Buyer Losses under Section 10.1(a)(i), ) and (b) the Buyer to all Company Indemnified Parties taken together for all Company Losses under Section 10.1(b)(i) shall, in each such case, be limited to a maximum of 12.5% $1,000,000 (One Million Dollars), except with respect to the Company’s obligations with respect to the UK Tax Liability, which shall be limited to a maximum of the Purchase Price, as adjusted pursuant to Section 3.3$2,000,000 (Two Million Dollars). Notwithstanding anything contained herein to the contrary contrary, (x) the Company shall not be liable for Buyer Losses obligated to make any indemnification payment under Section 10.1(a)(i) unless and until the aggregate amount of such Buyer Losses collectively exceeds Five Hundred Thousand Dollars ($500,000), and then only to the extent of such excess, sustained by Buyer Indemnified Parties and (y) the Buyer shall not be liable for Company Losses obligated to make any indemnification payment under Section 10.1(b)(i) unless and until the aggregate amount of such Company Losses sustained by Company Indemnified Parties, in each such case, collectively exceeds Five $200,000 (Two Hundred Thousand Dollars ($500,000Dollars), and then any indemnification with respect to such Buyer Losses or Company Losses shall be made only to the extent of such excess. Notwithstanding the foregoing, the limitations and qualifications set forth in this Section 10.2 shall not apply to indemnification (x) for breaches of the representations and warranties contained in Sections 4.1(a), (cb), (i)(ic) and (r) and 4.2(a), (jb) and (qd). The Buyer Indemnified Parties’ remedies with respect to Buyer Losses specified in (i) and 4.2(aSections 10.1(a)(i) and (bvii) (except that shall be satisfied by application of the limitation set forth in the first sentence of this Section 10.2 shall apply to all claims for indemnification with respect Escrow Funds held pursuant to the matters referred to Escrow Agreement in this subclause accordance with the terms herein and therein, (xii) if the applicable Indemnified Party had knowledge in Section 10.1(a)(iv) shall be satisfied first by application of the breach, event or circumstance giving rise to such loss prior Escrow Funds held pursuant to the Closing)Escrow Agreement in accordance with its terms herein and therein, or and if any such Buyer Losses shall be in excess of the amount of the Escrow Funds, then the Company shall be obligated to satisfy any such excess amounts, and (yiii) under Section Sections 10.1(a)(ii), (iii), (iv) or (v) and (vi) shall be satisfied by the Company; provided that, if the Company fails to pay amounts due pursuant to this Section 10.2(iii), such amounts may be satisfied by application of the Escrow Funds held pursuant to the Escrow Agreement in accordance with the terms herein and therein. The amount of any Buyer Losses or Company Losses for which indemnification is provided under this Article X shall be reduced to take into account any net Tax benefit actually realized by the indemnified party as a result of the payment of such losses. In computing the amount of any such Tax benefit actually realized, an indemnified party shall be deemed to actually realize the benefit arising from the payment of such losses after the use of all other losses, deductions, credits or items of such indemnified party. In no event shall any Buyer Indemnified Party or Company Indemnified Party, as applicable, be entitled to indemnification in respect of Liabilities, Buyer Losses or Company Losses, as the case may be, for which such Buyer Indemnified Party or Company Indemnified Party, as the case may be, has already been compensated pursuant to Section 10.1(b)(ii) (iii) 3.3 or (iv)this Article X; provided that such restriction on indemnification shall only apply to the extent that such Buyer Indemnified Party or Company Indemnified Party, as the case may be, has actually received payment in respect of such Liabilities, Buyer Losses or Company Losses, as applicable.

Limitations on Indemnity Payments. Notwithstanding anything contained herein to the contrary, the maximum aggregate liability of (a) Subject to the Company other provisions of this Article IX, the Sellers, on the one hand, and Purchaser, on the other hand, shall not be required to all Buyer indemnify the Purchaser Indemnified Parties taken together for all Buyer Losses under Section 10.1(a)(i9.01(a) on the one hand, and the Seller Indemnified Parties under Section 9.02(a), and on the other hand, except (bi) to the Buyer extent that the aggregate amount of Damages with respect to any claim or series of related claims for which the Purchaser Indemnified Parties, on the one hand, or the Seller Indemnified Parties, on the other hand, are otherwise entitled to indemnification from all Company Indemnified Parties taken together for all Company Losses under Section 10.1(b)(i) shall, in each such case, be limited to a maximum of 12.5% of the Purchase Price, as adjusted Sellers pursuant to Section 3.3. Notwithstanding anything contained herein 9.01(a), on the one hand, and from Purchaser pursuant to Section 9.02(a), on the other hand, exceeds $25,000 (the "Minimum Claim Amount"), (ii) to the contrary extent that the aggregate amount of Damages for which the Purchaser Indemnified Parties, on the one hand, and the Seller Indemnified Parties, on the other hand, are otherwise entitled to indemnification from all Sellers pursuant to Section 9.01(a), on the one hand, and from Purchaser, pursuant to Section 9.02(a), on the other hand, exceeds $1,500,000 (xthe "Deductible Amount") (it being understood and agreed that (A) any claim or series of related claims for Damages of less than the Minimum Claim Amount shall be disregarded for purposes of calculating the Deductible Amount and (B) the Company Deductible Amount is intended as deductible, and the Sellers, on the one hand, and Purchaser, on the other hand, shall not be liable for Buyer Losses under Section 10.1(a)(i) unless and until any Damages less than the Deductible Amount). If the aggregate amount of such Buyer Losses collectively exceeds Five Hundred Thousand Dollars ($500,000Damages for which the Purchaser Indemnified Parties are entitled to indemnification pursuant to Section 9.01(a)(i) and 9.01(a)(iii), and then only to on the extent of such excessone hand, and (y) the Buyer Seller Indemnified Parties are entitled to indemnification pursuant to Section 9.02(a)(i), on the other hand, exceeds the Deductible Amount, the Purchaser Indemnified Parties and the Seller Indemnified Parties, as applicable, shall not be liable for Company Losses under Section 10.1(b)(i) unless and entitled to be paid 50% of the amount by which the aggregate of all such Damages exceeds $1,500,000 until the aggregate of all such Damages exceeds $2,500,000, after which the Purchaser Indemnified Parties and the Seller Indemnified Parties, as applicable, shall be entitled to be paid 100% of the amount by which the aggregate of all such Damages exceeds $2,500,000, subject to the limitations on the maximum amount of such Company Losses collectively exceeds Five Hundred Thousand Dollars ($500,000recovery set forth in Section 9.04(b), and then only to the extent of such excess. Notwithstanding the foregoing, any Damages related to or arising directly or indirectly out of any claim for indemnification made under Section 9.01(a)(i) (but solely with respect to the representations and warranties in Sections 3.01, 3.02 and 3.07), Section 9.01(a)(ii), Section 9.01(a)(iii) (but solely with respect to representations and warranties in Sections 4.02, 4.03, 4.14 and 4.30), 9.01(a)(iv), 9.01(a)(v), 9.01(a)(vi), 9.01(a)(vii), 9.01(a)(viii), 9.01(a)(ix) or 9.02(a)(ii) (any claims under Section 9.01(a)(i) (but solely to the extent provided above), Section 9.01(a)(ii), Section 9.01(a)(iii) (but solely to the extent provided above), 9.01(a)(iv), 9.01(a)(v), 9.01(a)(vi), 9.01(a)(vii), 9.01(a)(viii), 9.01(a)(ix) and 9.02(a)(ii) being referred herein as a "Non-Cap Claim") shall not be subject to the limitations and qualifications set forth in this Section 10.2 9.04(a). (b) Subject to Section 9.04(c) below, the aggregate Damages payable by the Sellers, collectively, pursuant to Section 9.01(a) above with respect to all claims other than a Non-Cap Claim (excluding from Non-Cap Claims for purposes of this Section 9.04(b), Damages arising from a breach of this Agreement by any of the Sellers, the Preferred Holders or the Company prior to the Closing that results in a failure of any condition to the Closing to be met and the Closing does not in fact occur) shall not apply exceed an amount equal to indemnification $21,800,000 (x) for breaches the "Maximum Amount"), and with respect to a Non-Cap Claim shall not exceed the aggregate amount of the Common Purchase Price received by the Sellers collectively (including the Rollover Amounts of each Seller). Subject to the provisions regarding the joint and several liability of Xxxxxx Xxxxx and his Affiliates (as provided in Section 9.01(a)), the aggregate Damages payable by each Seller pursuant to Section 9.01(a) with respect to all claims other than a Non-Cap Claim shall not exceed an amount equal to such Seller's Proportionate Share of the Maximum Amount, and with respect to a Non-Cap Claim shall not exceed the amount (when aggregated with all other amounts previously paid or to be paid by such Seller pursuant to this Article IX) of the Common Purchase Price actually received by such Seller (including the Rollover Amount of such Seller). Subject to the provisions regarding the joint and several liability of Xxxxxx Xxxxx and his Affiliates (as provided in Section 9.01(a)), the maximum liability of any Seller with respect to any Third Party Claim or other claim for Damages for which such Seller is responsible under Section 9.01(a) shall be such Seller's Proportionate Share of the amount of such Third Party Claim or other claim for Damages. The aggregate Damages payable by Purchaser pursuant to Section 9.02(a) above with respect to all claims other than a Non-Cap Claim (excluding from Non-Cap Claims for purposes of this Section 9.04(b), Damages arising from a breach of this Agreement by Purchaser prior to the Closing that results in a failure of any condition to the Closing to be met and the Closing does not in fact occur) shall not exceed the Maximum Amount. (c) The representations and warranties of each Seller contained in Sections 4.1(a), (c), (i)(i), (j) and (q) and 4.2(a) and (b) (except that the limitation set forth in the first sentence Article III of this Section 10.2 Agreement and the covenants made by each Seller in this Agreement are made severally by each Seller as to himself, herself or itself only, and any Seller who has breached his, her or its representations or warranties in Article III as to himself, herself or itself or any of his, her or its covenants made in this Agreement (but only such Seller) shall apply to all claims for indemnification be liable with respect to all Damages arising from the matters referred breach thereof, up to in this subclause (x) if the applicable Indemnified Party had knowledge amount of the breachCommon Purchase Price actually received by such Seller (including the Rollover Amount of such Seller), event less any amounts previously paid or circumstance giving rise to be paid by such loss prior Seller pursuant to this Article IX, and no other Seller shall be liable for any such Damages. (d) The representations and warranties of each Preferred Holder contained in Article III of this Agreement are made severally by each Preferred Holder as to himself, herself or itself only, and any Preferred Holder who has breached his, her or its representations or warranties in Article III as to himself, herself or itself (but only such Preferred Holder) shall be liable with respect to all Damages arising from the breach thereof, up to the Closing)amount of the Preferred Redemption Price actually received by such Preferred Holder, less any amounts previously paid or (y) under Section 10.1(a)(ii)to be paid by such Preferred Holder pursuant to this Article IX, (iii), (iv) or (v) or Section 10.1(b)(ii) (iii) or (iv)and no other Preferred Holder shall be liable for any such Damages.

Limitations on Indemnity Payments. Notwithstanding anything contained herein to the contrary, the maximum aggregate liability of (a) the Company to all Buyer Indemnified Parties taken together for all Buyer Losses under Section 10.1(a)(i), ) and (b) the Buyer to all Company Indemnified Parties taken together for all Company Losses under Section 10.1(b)(i) shall, in each such case, be limited to a maximum of 12.5% $1,000,000 (One Million Dollars), and (c) the Company’s obligations with respect to the UK Tax Liability, shall be limited to a maximum of the Purchase Price, as adjusted pursuant to Section 3.3$1,000,000 (One Million Dollars). Notwithstanding anything contained herein to the contrary contrary, (x) the Company shall not be liable for Buyer Losses obligated to make any indemnification payment under Section 10.1(a)(i) unless and until the aggregate amount of such Buyer Losses collectively exceeds Five Hundred Thousand Dollars ($500,000), and then only to the extent of such excess, sustained by Buyer Indemnified Parties and (y) the Buyer shall not be liable for Company Losses obligated to make any indemnification payment under Section 10.1(b)(i) unless and until the aggregate amount of such Company Losses sustained by Company Indemnified Parties, in each such case, collectively exceeds Five $200,000 (Two Hundred Thousand Dollars ($500,000Dollars), and then any indemnification with respect to such Buyer Losses or Company Losses shall be made only to the extent of such excess. Notwithstanding the foregoing, the limitations and qualifications set forth in this Section 10.2 shall not apply to indemnification (x) for breaches of the representations and warranties contained in Sections 4.1(a), (cb), (i)(ic) and (r) and 4.2(a), (jb) and (qd). The Buyer Indemnified Parties’ remedies with respect to Buyer Losses specified in (i) and 4.2(aSections 10.1(a)(i) and (bvii) (except that shall be satisfied by application of the limitation set forth in the first sentence of this Section 10.2 shall apply to all claims for indemnification with respect Escrow Funds held pursuant to the matters referred to Escrow Agreement in this subclause accordance with the terms herein and therein, (xii) if the applicable Indemnified Party had knowledge in Section 10.1(a)(iv) shall be satisfied first by application of the breach, event or circumstance giving rise to such loss prior Escrow Funds held pursuant to the Closing)Escrow Agreement in accordance with its terms herein and therein, or and if any such Buyer Losses shall be in excess of the amount of the Escrow Funds, then the Company shall be obligated to satisfy any such excess amounts, and (yiii) under Section Sections 10.1(a)(ii), (iii), (iv) or (v) and (vi) shall be satisfied by the Company; provided that, if the Company fails to pay amounts due pursuant to this Section 10.2(iii), such amounts may be satisfied by application of the Escrow Funds held pursuant to the Escrow Agreement in accordance with the terms herein and therein. The amount of any Buyer Losses or Company Losses for which indemnification is provided under this Article X shall be reduced to take into account any net Tax benefit actually realized by the indemnified party as a result of the payment of such losses. In computing the amount of any such Tax benefit actually realized, an indemnified party shall be deemed to actually realize the benefit arising from the payment of such losses after the use of all other losses, deductions, credits or items of such indemnified party. In no event shall any Buyer Indemnified Party or Company Indemnified Party, as applicable, be entitled to indemnification in respect of Liabilities, Buyer Losses or Company Losses, as the case may be, for which such Buyer Indemnified Party or Company Indemnified Party, as the case may be, has already been compensated pursuant to Section 10.1(b)(ii) (iii) 3.3 or (iv)this Article X; provided that such restriction on indemnification shall only apply to the extent that such Buyer Indemnified Party or Company Indemnified Party, as the case may be, has actually received payment in respect of such Liabilities, Buyer Losses or Company Losses, as applicable.