Common use of Limitations on Recoverable Losses Clause in Contracts

Limitations on Recoverable Losses. Notwithstanding anything to the contrary, express or implied, set forth herein, claims for payment of Xxxxxxx'x Recoverable Losses in respect of a Shareholders Agreement Breach (i) may be made only with respect to claims arising during the General Liability Period (except with respect to breaches of the representations and warranties specified in the proviso to Section 6.1 and the covenants and agreements contained in this Agreement which shall not be so limited), (ii) must be made by giving the written Claim Notice (as defined in Section 6.5(a) hereof) to the Shareholders, (iii) except for breaches by the Shareholders or any of 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 (c) of the covenants and agreements herein set forth, may be made only to the extent that the aggregate 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 (i) and (ii) herein above shall be paid by the Shareholders, and (iv) shall not exceed the greater of $5 million or 50% of the Purchase Price. Notwithstanding anything to the contrary, 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 only with respect to claims arising during the General Liability Period (except with respect to breaches of the representations and warranties specified in the proviso to Section 6.1 and the covenants and agreements contained in this Agreement which shall not be so limited) and (y) must be made, if at all, by giving a written Claim Notice to Xxxxxxx and I-Bus.

Limitations on Recoverable Losses. Notwithstanding anything to Claims for indemnification under this Article IX for breaches of representations or warranties (other than the contrary, express or implied, representation of the Company and COMARCO set forth herein, claims for payment of Xxxxxxx'x Recoverable Losses in respect of a Shareholders Agreement Breach (iSection 2.31) may be made only with respect to claims arising during the General Liability Period (except with respect to breaches of the representations and warranties specified in the proviso to Section 6.1 and the covenants and agreements contained in Survival Period. Any claim under this Agreement which shall not be so limited), (ii) Article IX must be made by giving the written Claim Indemnification Notice (as defined in Section 6.5(a) 9.6 hereof) to the Shareholdersapplicable "Indemnifying Party" (as defined in Section 9.6) and, (iii) except with respect to claims for breaches by the Shareholders or any of them (a) of any representations and warranties set forth in Article 3, (b) of any other than the representation and warranty set forth in Sections 2.1-2.4 and 2.6Section 2.31), such notice must be given prior to the end of the Survival Period. Except with respect to (i) any of the Excluded Liabilities or (cii) a breach of the covenants representation and agreements herein warranty set forthforth in Section 2.31, may as to which the Company and COMARCO shall be made only fully liable, the Company and COMARCO shall not be obligated to make any indemnification payment pursuant to this Article IX to any of the Buyer Indemnitees (i) except to the extent that the aggregate amount of Xxxxxxx'x Recoverable Losses for Shareholders Agreement Breaches exceeds all Damages suffered shall exceed in the aggregate $50,00025,000, in which case all Xxxxxxx'x Recoverable Losses for Shareholders Agreement Breaches which are covered by clauses (i) and (ii) herein above shall be paid by to the Shareholdersextent such indemnification payment, together with all other payments in respect of Approved Claims and (iv) shall not Permitted Indemnification Claims, would exceed in the greater of $5 million or 50aggregate 75% of the Purchase Price. Notwithstanding anything Except with respect to any of the Assumed Liabilities as to which the Buyer shall be fully liable, the Buyer shall not be obligated to make any indemnification payment pursuant to this Article IX to any of the Seller Indemnitees (i) except to the contraryextent that the aggregate amount of all damages suffered shall exceed in the aggregate $25,000, express or impliedand (ii) to the extent such indemnification payment, set forth herein, claims for payment of the Shareholders' Recoverable Losses together with all other payments in respect of a Xxxxxxx/I-Bus Agreement Breach (x) may be made only with respect to claims arising during Approved Claims and Permitted Indemnification Claims, would exceed in the General Liability Period (except with respect to breaches aggregate 75% of the representations and warranties specified in the proviso to Section 6.1 and the covenants and agreements contained in this Agreement which shall not be so limited) and (y) must be made, if at all, by giving a written Claim Notice to Xxxxxxx and I-BusPurchase Price.

Limitations on Recoverable Losses. Notwithstanding anything to the contrary, express or implied, set forth herein, claims (a) Claims for payment of Xxxxxxx'x Recoverable Losses in respect of a Shareholders Agreement Breach under Section 10.2(a)(i), (i) may be made only with respect to claims arising during the General Liability Period (except with respect to breaches of the representations and warranties specified in the proviso to Section 6.1 and the covenants and agreements contained in this Agreement which shall not be so limited)applicable survival period, (ii) must be made made, if at all, by giving the written Claim Notice (as defined in Section 6.5(a) 10.5 hereof) to the ShareholdersStockholders Representative during the survival period, as applicable, with respect to such claim, and (iii) except for breaches by the Shareholders or any of 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 (c) of the covenants and agreements herein set forth, may be made only to the extent that the aggregate amount of Xxxxxxx'x Recoverable such Losses (other than with respect to claims for Shareholders breaches of Section 4.10) shall exceed $2,000,000 (the “Basket”) (and then only for such excess). The Sellers’ aggregate liability for all claims under Section 10.2(a)(i) shall not exceed $30,000,000 (the “Cap”). Notwithstanding the foregoing, Losses suffered by Purchaser as a result of, arising out 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 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 Breaches exceeds $50,000and the transactions contemplated hereby, the Optionholders are obligated to bear their pro rata share of indemnification claims for Losses paid from the Escrow Funds (except in which the case of breach by Meow Holdings of Article III). The pro rata portion payable with respect to a specific Option shall be the proportion determined by dividing the amount of gross proceeds paid with respect to such Option pursuant to Section 2.2(e)(i), including the amount of Employee Withholding Taxes with respect thereto, by the total proceeds paid for all Xxxxxxx'x Recoverable Losses 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 Shareholders Agreement Breaches which are covered by clauses the amount of Meow Holdings’ pro rata interest in the Escrow Funds based on the portion of Meow Holdings’ funds that remains in escrow to all funds then remaining in escrow or Purchaser may directly pursue Meow Holdings in lieu of proceeding against the Escrow Funds. (b) Notwithstanding anything to the contrary contained in this Article X, no indemnification claim may be made for (i) any individual claim for breach of a representation under Article IV (other than with respect to Sections 4.1, 4.2, 4.3 and 4.5(c)(i)) which is not by its terms qualified by reference to materiality or Material Adverse Effect unless the amount of such claim exceeds $50,000 and (ii) herein above any workers compensation claims covered by insurance that are pending or threatened as of the Closing Date. (c) Subject to Section 10.5(c), each Seller and holder of Options shall be paid by the Shareholdersresponsible hereunder for its pro rata share of each claim (i.e., and (iv) shall not exceed the greater of $5 million or 50% that percentage of the amount of such claim which is equal to the percentage of the total Preliminary Cash Purchase PricePrice hereunder such Seller or holder of Options is entitled to receive, including in the calculation any Employee Withholding Taxes paid in respect of Options) for indemnification under Section 10.2(a) to the extent recovery therefor is not obtained from the Escrow Funds. In addition, to the extent recovery with respect to a breach of Sections 4.1, 4.2, 4.3 or 4.5(c)(i), Section 10(a)(ii) or Section 10(a)(iii) is sought other than from the Escrow Funds, Purchaser shall be permitted to claim directly against Meow Holdings for the full amount of such claim and without seeking recovery from any other Seller or holder of Options. Meow Holdings shall have the right to obtain contribution from the other Sellers and the holders of Options for their pro rata share of such claim. Accordingly, Sellers and Optionholders agree to pay such share of such claim to Meow Holdings within 10 days of written notice of payment to Meow Holdings. Purchaser agrees that if it is permitted to make a claim against the Escrow Funds under this Agreement, it will claim against the Escrow Funds before claiming directly against any Seller, to the extent Escrow Funds are available; provided that this provision will not apply to any claims against Meow Holdings under Article III. (d) Notwithstanding anything to the contrarycontrary contained in this Agreement, express no Seller or implied, set forth herein, holder of Options shall be required to make payments (including from the Escrow Funds) on account of claims for payment indemnification under this Agreement in excess of the Shareholders' Recoverable Losses total cash proceeds to such Seller or holder of Options pursuant to this Agreement, including any Employee Withholding Taxes paid in respect of a Xxxxxxx/I-Bus Agreement Breach (x) may be made only with respect to claims arising during the General Liability Period (except with respect to breaches of the representations and warranties specified in the proviso to Section 6.1 and the covenants and agreements contained in this Agreement which shall not be so limited) and (y) must be made, if at all, by giving a written Claim Notice to Xxxxxxx and I-BusOptions.

Limitations on Recoverable Losses. Notwithstanding anything to the contrary, express or implied, set forth herein, claims for payment of Xxxxxxx'x Recoverable Maxwxxx Xxxoverable Losses in respect of a Shareholders Agreement Breach (i) under Section 12.3 may be made only with respect to claims arising during the General Liability Period or the Tax Liability Period, as applicable; (except with respect to breaches of the representations and warranties specified in the proviso to Section 6.1 and the covenants and agreements contained in this Agreement which shall not be so limited), (iib) must be made made, if at all, by giving the written Claim Notice (as defined in Section 6.5(a12.7(a) hereof) to the ShareholdersShareholders during the General Liability Period or the Tax Liability Period, as applicable, with respect to such claim; (iiic) except for losses covered by Section 12.4, or for breaches by the Principal Shareholders or any of them (a) of any the representations and warranties set forth in Article 3, (b) a breach by the Company, the Shareholders or the Principal Shareholders of any the representation and warranty set forth in Sections 2.1-2.4 and 2.6Section 2.3, or (c) a breach by the Company or the Principal Shareholders of the covenants set forth in Article 5 and agreements herein set forthArticle 7, may be made only to the extent that the aggregate amount of Xxxxxxx'x Recoverable Maxwxxx Xxxoverable Losses for Shareholders Agreement Breaches exceeds $50,000100,000, in which case all Xxxxxxx'x Recoverable Maxwxxx Xxxoverable Losses for Shareholders Agreement Breaches which are covered by clauses (i) and (ii) herein above in excess of $100,000 shall be paid by the Shareholders or the Principal Shareholders, ; and (ivd) except for fraud, shall not exceed in the greater of $5 million or 50% aggregate the value of the Purchase PriceExchange Shares received by the Shareholders (deemed by the parties to be $21,000,000). Notwithstanding anything to the contrary, express or implied, set forth herein, claims for payment of the Shareholders' Shareholders Recoverable Losses in respect of a Xxxxxxx/I-Bus Agreement Breach under Section 12.5 (xa) may be made only with respect to claims arising during the General Liability Period Period; (except with respect to breaches of the representations and warranties specified in the proviso to Section 6.1 and the covenants and agreements contained in this Agreement which shall not be so limited) and (yb) must be made, if at all, by giving a written Claim Notice to Xxxxxxx 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 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 I-Busany proceeds from the sale of such 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, or the Escrow has been terminated, 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 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 Liability Period, as appropriate.