Common use of Limitations on Recoverable Losses Clause in Contracts

Limitations on Recoverable Losses. Notwithstanding anything to the contrary set forth herein, indemnification pursuant to this Article VIII shall be the sole remedy of the Parties for any breach of this Agreement or any other Losses relating to this Agreement and the transactions contemplated hereby; provided, however, that nothing in this Agreement (including this Section 8.8) shall limit or restrict any of the Indemnifying Party’s right to maintain or recover any amounts in connection with any action or claim based upon fraud or deceit or any remedy which might otherwise be available pursuant to applicable federal or state securities laws, including any relief which might otherwise be available pursuant to Section 10(b)(5) of the Exchange Act or any state law analog thereof. Seller’s aggregate liability for all (a) Losses under Section 8.1(a), other than Section 4.17 (Tax Matters) and the Fundamental Representations, shall not, exceed the sum of Three Million Dollars ($3,000,000) (the “Cap”) (b) Losses under Section 8.1(a) pursuant to violations of Section 4.17 (Tax Matters) and under Section 8.1(c) shall not exceed the sum of Five Million Dollars ($5,000,000) (the “Tax Representation Indemnity Cap”) (c) Losses under Section 8.1(a) pursuant to the Fundamental Representations shall be unlimited; provided, however, that Losses arising out of or caused by the following shall not be subject to, or limited by, the Cap, the Tax Representation Indemnity Cap, or any other limitation on recovery set forth in this Agreement: (a) fraud or intentional misrepresentation of the Indemnifying Party, and (b) Losses under Sections 8.1(b) and (d). Notwithstanding anything herein to the contrary, payments made by the Indemnifying Party pursuant to Sections 8.1 and 8.2 shall be limited to the amount of Losses, if any, that remains after deducting therefrom (a) the Tax benefit actually realized (by cash received or reduction of tax paid) by the applicable Indemnified Parties arising from the incurrence or payment of such Losses (determined on a with and without basis) in the Tax year in which such losses are incurred, and (b) any insurance proceeds and any indemnity, contribution or other similar payment actually recovered by the Indemnified Parties from any third parties with respect thereto (less (i) the reasonably estimated amount of increased future premiums resulting therefrom, (ii) any “retro-premiums” obligations, (iii) any costs incurred in connection with such recovery and all deductibles and (iv) co-payments and similar obligations).

Limitations on Recoverable Losses. Notwithstanding anything (a) Claims for payment of Losses under Section 10.2(a)(i), (i) may be made only with respect to claims arising during the applicable survival period, (ii) must be made, if at all, by giving the written Claim Notice (as defined in Section 10.5 hereof) to the contrary set forth hereinStockholders Representative during the survival period, indemnification pursuant as applicable, with respect to this Article VIII shall such claim, and (iii) may be made only to the sole remedy extent that the aggregate amount of the Parties such Losses (other than with respect to claims for any breach breaches of this Agreement or any other Losses relating to this Agreement and the transactions contemplated hereby; provided, however, that nothing in this Agreement (including this Section 8.84.10) shall limit or restrict any of exceed $2,000,000 (the Indemnifying Party’s right to maintain or recover any amounts in connection with any action or claim based upon fraud or deceit or any remedy which might otherwise be available pursuant to applicable federal or state securities laws, including any relief which might otherwise be available pursuant to Section 10(b)(5“Basket”) of the Exchange Act or any state law analog thereof(and then only for such excess). Seller’s The Sellers’ aggregate liability for all (a) Losses claims under Section 8.1(a), other than Section 4.17 (Tax Matters10.2(a)(i) and the Fundamental Representations, shall not, not exceed the sum of Three Million Dollars ($3,000,000) 30,000,000 (the “Cap”) (b) ). Notwithstanding the foregoing, Losses under Section 8.1(a) pursuant to violations of Section 4.17 (Tax Matters) and under Section 8.1(c) shall not exceed the sum of Five Million Dollars ($5,000,000) (the “Tax Representation Indemnity Cap”) (c) Losses under Section 8.1(a) pursuant to the Fundamental Representations shall be unlimited; providedsuffered by Purchaser as a result of, however, that Losses arising out of of, or caused by any breach of representations or warranties contained in Article III or Section 4.1, 4.2, 4.3, 4.5(c)(i) or the following last sentence of Section 4.12(b), or fraud shall not be subject to, or limited by, the Basket or the Cap. In accordance with the terms of all outstanding option agreements, Holdings’ 2002 Stock Option Plan, Holdings’ 2003 Stock Incentive Plan and the resolutions of Holdings’ Board of Directors authorizing this Agreement and the transactions contemplated hereby, the Tax Representation Indemnity Cap, or any other limitation on recovery set forth Optionholders are obligated to bear their pro rata share of indemnification claims for Losses paid from the Escrow Funds (except in this Agreement: (a) fraud or intentional misrepresentation the case of the Indemnifying Party, and (b) Losses under Sections 8.1(b) and (dbreach by Meow Holdings of Article III). Notwithstanding anything herein The pro rata portion payable with respect to the contrary, payments made by the Indemnifying Party pursuant to Sections 8.1 and 8.2 a specific Option shall be limited to the proportion determined by dividing the amount of Lossesgross proceeds paid with respect to such Option pursuant to Section 2.2(e)(i), if anyincluding the amount of Employee Withholding Taxes with respect thereto, by the total proceeds paid for all Stock and Options pursuant to Section 2.2(e)(i) including the amount of Employee Withholding Taxes with respect thereto. In the case of a breach by Meow Holdings of Article III, a Claim may be satisfied from the Escrow Funds only for the amount of Meow Holdings’ pro rata interest in the Escrow Funds based on the portion of Meow Holdings’ funds that remains after deducting therefrom (a) in escrow to all funds then remaining in escrow or Purchaser may directly pursue Meow Holdings in lieu of proceeding against the Tax benefit actually realized (by cash received or reduction of tax paid) by the applicable Indemnified Parties arising from the incurrence or payment of such Losses (determined on a with and without basis) in the Tax year in which such losses are incurred, and (b) any insurance proceeds and any indemnity, contribution or other similar payment actually recovered by the Indemnified Parties from any third parties with respect thereto (less (i) the reasonably estimated amount of increased future premiums resulting therefrom, (ii) any “retro-premiums” obligations, (iii) any costs incurred in connection with such recovery and all deductibles and (iv) co-payments and similar obligations)Escrow Funds.

Limitations on Recoverable Losses. Notwithstanding anything to the contrary set forth herein, indemnification pursuant to this Article VIII shall be the sole remedy of the Parties for any breach of this Agreement or any other Losses relating to this Agreement and the transactions contemplated hereby; provided, however, that nothing in this Agreement (including this Section 8.8) shall limit or restrict any of the Indemnifying Party’s right to maintain or recover any amounts in connection with any action or claim based upon fraud or deceit or any remedy which might otherwise be available pursuant to applicable federal or state securities laws, including any relief which might otherwise be available pursuant to Section 10(b)(5) of the Exchange Act or any state law analog thereof. Seller’s aggregate liability for all (a) Losses under Section 8.1(a), other than Section 4.17 (Tax Matters) and the Fundamental Representations, shall not, exceed the sum of Three Million Dollars ($3,000,000) (the “Cap”) (b) Losses under Section 8.1(a) pursuant to violations of Section 4.17 (Tax Matters) and under Section 8.1(c) shall not exceed the sum of Five Million Dollars ($5,000,000) (the “Tax Representation Indemnity Cap”) (c) Losses under Section 8.1(a) pursuant to the Fundamental Representations shall be unlimited; provided, however, that Losses arising out of or caused by the following shall not be subject to, or limited by, the Cap, the Tax Representation Indemnity Cap, or any other limitation on recovery set forth in this Agreement: (a) fraud or intentional misrepresentation of the Indemnifying Party, and (b) Losses under Sections 8.1(b) and (d). Notwithstanding anything herein to the contrary, payments made by the Indemnifying Party pursuant to Sections 8.1 and 8.2 shall be limited to the amount of Losses, if any, that remains after deducting therefrom (a) the Tax benefit actually realized (by cash received or reduction of tax paid) by the applicable Indemnified Parties arising from the incurrence or payment of such Losses (determined on a with and without basis) in the Tax year in which such losses are incurred, and (b) any insurance proceeds and any indemnity, contribution or other similar payment actually recovered by the Indemnified Parties from any third parties with respect thereto (less (i) the reasonably estimated amount of increased future premiums resulting therefrom, (ii) any “retro-premiums” obligations, (iii) any costs incurred in connection with such recovery and all deductibles and (iv) co-payments and similar obligations).. 28 8.9

Limitations on Recoverable Losses. Notwithstanding anything to the contrary contrary, express or implied, set forth herein, indemnification pursuant claims for payment of Maxwxxx Xxxoverable Losses under Section 12.3 may be made only with respect to this claims arising during the General Liability Period or the Tax Liability Period, as applicable; (b) must be made, if at all, by giving the written Claim Notice (as defined in Section 12.7(a) hereof) to the Shareholders during the General Liability Period or the Tax Liability Period, as applicable, with respect to such claim; (c) except for losses covered by Section 12.4, or for breaches by the Principal Shareholders of the representations and warranties set forth in Article VIII 3, a breach by the Company, the Shareholders or the Principal Shareholders of the representation and warranty set forth in Section 2.3, or a breach by the Company or the Principal Shareholders of the covenants set forth in Article 5 and Article 7, may be made only to the extent that the aggregate amount of Maxwxxx Xxxoverable Losses exceeds $100,000, in which case all Maxwxxx Xxxoverable Losses in excess of $100,000 shall be paid by the sole remedy of Shareholders or the Parties Principal Shareholders; and (d) except for any breach of this Agreement or any other Losses relating to this Agreement and fraud, shall not exceed in the transactions contemplated hereby; provided, however, that nothing in this Agreement (including this Section 8.8) shall limit or restrict any of aggregate the Indemnifying Party’s right to maintain or recover any amounts in connection with any action or claim based upon fraud or deceit or any remedy which might otherwise be available pursuant to applicable federal or state securities laws, including any relief which might otherwise be available pursuant to Section 10(b)(5) value of the Exchange Act or any state law analog thereof. Seller’s aggregate liability for all (a) Losses under Section 8.1(a), other than Section 4.17 (Tax Matters) and the Fundamental Representations, shall not, exceed the sum of Three Million Dollars ($3,000,000) (the “Cap”) (b) Losses under Section 8.1(a) pursuant to violations of Section 4.17 (Tax Matters) and under Section 8.1(c) shall not exceed the sum of Five Million Dollars ($5,000,000) (the “Tax Representation Indemnity Cap”) (c) Losses under Section 8.1(a) pursuant to the Fundamental Representations shall be unlimited; provided, however, that Losses arising out of or caused Shares received by the following shall not Shareholders (deemed by the parties to be subject to, or limited by, the Cap, the Tax Representation Indemnity Cap, or any other limitation on recovery set forth in this Agreement: (a) fraud or intentional misrepresentation of the Indemnifying Party, and (b) Losses under Sections 8.1(b) and (d$21,000,000). Notwithstanding anything herein to the contrary, payments express or implied, set forth herein, claims for payment of the Shareholders Recoverable Losses under Section 12.5 (a) may be made only with respect to claims arising during the General Liability Period; (b) must be made, if at all, by giving a written Claim Notice to Maxwxxx xxxing the General Liability Period with respect to such claim; (c) except for breaches of the covenants set forth in Article 6, Article 7 or Article 13, may be made only to the extent that the aggregate amount of Shareholders Recoverable Losses exceed $100,000, in which case all Shareholders Recoverable Losses in excess of $100,000 shall be paid by Maxwxxx; xxd (d) except fraud, shall not exceed $21,000,000. Any indemnification payment hereunder shall be net of any tax benefit or insurance proceeds actually realized by the Indemnifying Party pursuant to Sections 8.1 and 8.2 Indemnitee. The liability under this Section 12 of any Shareholder, other than a Principal Shareholder, shall be limited to his or her proportionate share of the Maxwxxx Xxxoverable Losses. In no event shall the liabilities under this Section 12 of any Shareholder, other than a Principal Shareholder, exceed the amount attributable to such Shareholder's deposit into the Escrow. Notwithstanding anything in this Section 12 to the contrary, any Maxwxxx Xxxoverable Losses payable under this Section 12 shall be paid first from the Escrowed Shares (and any proceeds from the sale of Lossessuch Escrowed Shares) until such Escrowed Shares (and any proceeds) have been exhausted or the Escrow has been terminated. Once such Escrowed Shares (and any proceeds) have been exhausted, if anyor the Escrow has been terminated, that remains then and only then, the Principal Shareholders who are obligated to pay any unpaid Maxwxxx Xxxoverable Losses pursuant to the terms of this Section 12 shall pay such amounts from sources outside of Escrow. Nothing in this Section 12 shall prevent any or all of the Principal Shareholder from seeking contribution from the other Shareholders for joint and several obligations of such Shareholders under Sections 12.3 and 12.4 (as further limited by Section 12.6) for claims made after deducting therefrom (a) the Escrow Agreement has been terminated. Any claim for indemnification under this Section 12 shall be made prior to the expiration of the General Liability Period or the Tax benefit actually realized (by cash received or reduction of tax paid) by the applicable Indemnified Parties arising from the incurrence or payment of such Losses (determined on a with and without basis) in the Tax year in which such losses are incurredLiability Period, and (b) any insurance proceeds and any indemnity, contribution or other similar payment actually recovered by the Indemnified Parties from any third parties with respect thereto (less (i) the reasonably estimated amount of increased future premiums resulting therefrom, (ii) any “retro-premiums” obligations, (iii) any costs incurred in connection with such recovery and all deductibles and (iv) co-payments and similar obligations)as appropriate.

Limitations on Recoverable Losses. Notwithstanding anything to the contrary set forth herein, indemnification pursuant to this Article VIII shall be the sole remedy of the Parties for any breach of this Agreement or any other Losses relating to this Agreement and the transactions contemplated hereby; provided, however, that nothing in this Agreement (including this Section 8.8) shall limit or restrict any of the Indemnifying Party’s right to maintain or recover any amounts in connection with any action or claim based upon fraud or deceit or any remedy which might otherwise be available pursuant to applicable federal or state securities laws, including any relief which might otherwise be available pursuant to Section 10(b)(5) of the Exchange Act or any state law analog thereof. SellerParent’s aggregate liability for all (a) Losses under Section 8.1(a), other than Section 4.17 (Tax Matters) and the Fundamental Representations, shall not, exceed the sum of Three Million Dollars seven hundred fifty thousand dollars ($3,000,000750,000) (the “Cap”) (b) Losses under Section 8.1(a) pursuant to violations of Section 4.17 (Tax Matters) and under Section 8.1(c) shall not exceed the sum of Five Million Dollars two million dollars ($5,000,0002,000,000) (the “Tax Representation Indemnity Cap”) (c) Losses under Section 8.1(a) pursuant to the Fundamental Representations shall be unlimitednot exceed the sum of twenty million dollars ($20,000,000) (the “Fundamental Representation Indemnity Cap”); provided, however, that Losses suffered to the extent as a result of, arising out of or caused by fraud or intentional misrepresentation of the following Indemnifying Party shall not be subject to, or limited by, the Cap, the Tax Representation Indemnity Cap, the Fundamental Representation Indemnity Cap, or any other limitation on recovery set forth in this Agreement: (a) fraud or intentional misrepresentation of the Indemnifying Party, and (b) Losses under Sections 8.1(b) and (d). Notwithstanding anything herein to the contrary, payments made by the Indemnifying Party pursuant to Sections 8.1 and 8.2 shall be limited to the amount of Losses, if any, that remains after deducting therefrom (a) the Tax benefit actually realized (by cash received or reduction of tax paid) by the applicable Indemnified Parties arising from the incurrence or payment of such Losses (determined on a with and without basis) in the Tax year in which such losses are incurred, and (b) any insurance proceeds and any indemnity, contribution or other similar payment actually recovered by the Indemnified Parties from any third parties with respect thereto (less (i) the reasonably estimated amount of increased future premiums resulting therefrom, (ii) any “"retro-premiums” " obligations, (iii) any costs incurred in connection with such recovery and all deductibles and (iv) co-payments and similar obligations).

Limitations on Recoverable Losses. Notwithstanding anything to the contrary set forth herein, indemnification pursuant to this Article VIII shall be the sole remedy of the Parties for any breach of this Agreement or any other Losses relating to this Agreement and the transactions contemplated hereby; provided, however, that nothing in this Agreement (including this Section 8.8) shall limit or restrict any of the Indemnifying Party’s right to maintain or recover any amounts in connection with any action or claim based upon fraud or deceit or any remedy which might otherwise be available pursuant to applicable federal or state securities laws, including any relief which might otherwise be available pursuant to Section 10(b)(5) of the Exchange Act or any state law analog thereof. SellerParent’s aggregate liability for all (a) Losses under Section 8.1(a), other than Section 4.17 (Tax MattersTax), Section 4.24 (Certain Liabilities) and the Fundamental Representations, shall not, in each case, exceed the sum of Three Million Dollars ($3,000,000) 620,000 (the “Cap”) (b) Losses under Section 8.1(a) pursuant to violations of Section 4.17 (Tax MattersTax) and under Section 8.1(c4.25 (Certain Liabilities) shall not in each case, exceed the sum of Five Million Dollars ($5,000,000) 2,000,000 (the “Tax Representation Special Indemnity Cap”) ), and (c) Losses under Section 8.1(a) pursuant to the Fundamental Representations shall be unlimitednot exceed the sum of $6,200,000 (the “Fundamental Representation Indemnity Cap”); provided, however, that Losses suffered to the extent as a result of, arising out of or caused by fraud or intentional misrepresentation of the following Indemnifying Party shall not be subject to, or limited by, the Cap, the Tax Representation Special Indemnity Cap, the Fundamental Indemnity Cap, or any other limitation on recovery set forth in this Agreement: (a) fraud or intentional misrepresentation of the Indemnifying Party, and (b) Losses under Sections 8.1(b) and (d). Notwithstanding anything herein to the contrary, payments made by the Indemnifying Party pursuant to Sections 8.1 and 8.2 shall be limited to the amount of Losses, if any, that remains after deducting therefrom (a) the Tax benefit actually realized (by cash received or reduction of tax paid) by the applicable Indemnified Parties arising from the incurrence or payment of such Losses (determined on a with and without basis) in the Tax year in which such losses are incurred, and (b) any insurance proceeds and any indemnity, contribution or other similar payment actually recovered by the Indemnified Parties from any third parties with respect thereto (less (i) the reasonably estimated amount of increased future premiums resulting therefrom, (ii) any “"retro-premiums” " obligations, (iii) any costs incurred in connection with such recovery and all deductibles and (iv) co-payments and similar obligations).

Limitations on Recoverable Losses. Notwithstanding anything to the contrary contrary, express or implied, set forth herein, indemnification pursuant claims for payment of Xxxxxxx'x Recoverable Losses in respect of a Shareholders Agreement Breach (i) may be made only with respect to this Article VIII shall be claims arising during the sole remedy General Liability Period (except with respect to breaches of the Parties for any breach of this Agreement or any other Losses relating representations and warranties specified in the proviso to this Agreement Section 6.1 and the transactions contemplated hereby; provided, however, that nothing covenants and agreements contained in this Agreement which shall not be so limited), (including this ii) must be made by giving the written Claim Notice (as defined in Section 8.86.5(a) shall limit hereof) to the Shareholders, (iii) except for breaches by the Shareholders or restrict any of the Indemnifying Party’s right to maintain them (a) of any representations and warranties set forth in Article 3, (b) of any representation and warranty set forth in Sections 2.1-2.4 and 2.6, or recover any amounts in connection with any action or claim based upon fraud or deceit or any remedy which might otherwise be available pursuant to applicable federal or state securities laws, including any relief which might otherwise be available pursuant to Section 10(b)(5(c) of the Exchange Act or any state law analog thereof. Seller’s covenants and agreements herein set forth, may be made only to the extent that the aggregate liability amount of Xxxxxxx'x Recoverable Losses for Shareholders Agreement Breaches exceeds $50,000, in which case all Xxxxxxx'x Recoverable Losses for Shareholders Agreement Breaches which are covered by clauses (a) Losses under Section 8.1(a), other than Section 4.17 (Tax Mattersi) and (ii) herein above shall be paid by the Fundamental RepresentationsShareholders, shall not, exceed the sum of Three Million Dollars and ($3,000,000) (the “Cap”) (b) Losses under Section 8.1(a) pursuant to violations of Section 4.17 (Tax Matters) and under Section 8.1(civ) shall not exceed the sum greater of Five Million Dollars ($5,000,000) (the “Tax Representation Indemnity Cap”) (c) Losses under Section 8.1(a) pursuant to the Fundamental Representations shall be unlimited; provided, however, that Losses arising out of 5 million or caused by the following shall not be subject to, or limited by, the Cap, the Tax Representation Indemnity Cap, or any other limitation on recovery set forth in this Agreement: (a) fraud or intentional misrepresentation 50% of the Indemnifying Party, and (b) Losses under Sections 8.1(b) and (d)Purchase Price. Notwithstanding anything herein to the contrary, payments express or implied, set forth herein, claims for payment of the Shareholders' Recoverable Losses in respect of a Xxxxxxx/I-Bus Agreement Breach (x) may be made by only with respect to claims arising during the Indemnifying Party pursuant General Liability Period (except with respect to Sections 8.1 breaches of the representations and 8.2 warranties specified in the proviso to Section 6.1 and the covenants and agreements contained in this Agreement which shall not be limited to the amount of Lossesso limited) and (y) must be made, if anyat all, that remains after deducting therefrom (a) the Tax benefit actually realized (by cash received or reduction of tax paid) by the applicable Indemnified Parties arising from the incurrence or payment of such Losses (determined on giving a with written Claim Notice to Xxxxxxx and without basis) in the Tax year in which such losses are incurred, and (b) any insurance proceeds and any indemnity, contribution or other similar payment actually recovered by the Indemnified Parties from any third parties with respect thereto (less (i) the reasonably estimated amount of increased future premiums resulting therefrom, (ii) any “retroI-premiums” obligations, (iii) any costs incurred in connection with such recovery and all deductibles and (iv) co-payments and similar obligations)Bus.