Common use of Limits on Indemnification Clause in Contracts

Limits on Indemnification. (a) Notwithstanding anything to the contrary contained in this Agreement or the Shareholders’ Agreement, FoundryCo shall not submit any notice of Claim to Discovery or directly pursue any Claim for indemnification against Discovery for Oyster/FoundryCo Losses suffered by FoundryCo, in any case, pursuant to Section 12.02. Any such notice of claim shall be given, and any such Claim against Discovery shall be made, prosecuted, and if applicable, settled by Oyster in the name of FoundryCo. FoundryCo shall cooperate with Oyster in the investigation and prosecution of any such Claim, and shall make available to Oyster all witnesses, pertinent records, materials and information in FoundryCo’s possession or under FoundryCo’s control relating thereto as is reasonably required by Oyster in connection with such Claim or any Action related to such Claim. In the event that Oyster shall pursue a Claim against Discovery on behalf of FoundryCo, such indemnification shall be made directly to FoundryCo, provided that Oyster may recover all Oyster/FoundryCo Losses consisting of expenses (including reasonable attorneys’ and consultants’ fees and expenses) actually incurred by Oyster in connection with the investigation and prosecution of any such Claim or Action related to such Claim. (b) In the event that Oyster has a Claim for indemnification against Discovery pursuant to Section 12.02 that is based on Oyster/FoundryCo Losses suffered or incurred by FoundryCo, and Oyster suffers or incurs such Oyster/FoundryCo Losses only indirectly as a result of a diminution in the value of Oyster’s debt or equity securities of FoundryCo, then Oyster may pursue a Claim for indemnification by Discovery pursuant to the provisions of Section 12.02 only on behalf of FoundryCo. Upon discharge and satisfaction by Discovery of the full amount of its indemnification obligations to FoundryCo for such Losses, Discovery’s indemnification obligations for such Losses shall be deemed satisfied with respect to Oyster. (c) Notwithstanding anything to the contrary contained in this Agreement: (i) Discovery shall not be liable for any Claim for indemnification pursuant to Section 12.02(a) or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), or Section 12.03(a) or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), unless and until the aggregate amount of indemnifiable Oyster/FoundryCo Losses and Pearl Losses which may be recovered from Discovery equals or exceeds, in the aggregate, twenty-one million dollars ($21,000,000) whereupon the Oyster/FoundryCo Indemnified Parties and the Pearl Indemnified Parties shall be entitled to indemnification for the full amount of such Oyster/FoundryCo Losses and Pearl Losses, as the case may be; and (ii) the maximum amount of indemnifiable Oyster/FoundryCo Losses and Pearl Losses which may be recovered by the Oyster/FoundryCo Indemnified Parties and Pearl Indemnified Parties arising out of or resulting from the causes set forth in Section 12.02(a) or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), and Section 12.03(a)or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), shall be, in the aggregate, seven hundred million dollars ($700,000,000). The limitations of this Section 12.06(c) shall not apply with respect to indemnification for Taxes pursuant to Section 12.02(a). (d) The Parties shall make appropriate adjustments for insurance proceeds actually received, net of all reasonable and documented costs and expenses of recovery, in calculating Losses under this Article XII. Any insurance proceeds actually recovered by an Indemnified Party to the extent relating to any Losses previously paid by an Indemnifying Party shall be paid over promptly to such Indemnifying Party. (e) No Party (or any other Indemnified Party) shall seek or be entitled to receive any consequential damages, including but not limited to loss of revenue or income, cost of capital, or loss of business reputation or opportunity, relating to any misrepresentation or breach of any warranty or covenant set forth in this Agreement or any Ancillary Agreement; nor shall any Party or Indemnified Party seek or be entitled to receive punitive damages as to any matter under, relating to or arising out of the transaction contemplated by this Agreement or the Ancillary Agreements.

Limits on Indemnification. (a) Notwithstanding anything to the contrary contained The indemnification provided in this Agreement or Section 7 shall constitute the Shareholders’ exclusive remedy for breach of representation and warranties in this Agreement, FoundryCo regardless of whether any claims or causes of action asserted with respect to such matters are brought in contract, tort or any other legal theory whatsoever; provided, however, that only in the case of fraud, the indemnification provisions in this Section 7 are in addition to, and not in derogation of, any statutory, equitable or common law remedy any party may have for breach of any representation or warranty. The maximum aggregate indemnification liability of SELLER shall not submit any notice be equal to 50% of Claim to Discovery or directly pursue any Claim for indemnification against Discovery for Oyster/FoundryCo Losses suffered the aggregate amount of all payments actually received by FoundryCo, in any case, SELLER pursuant to Section 12.02. Any 1.3 of this Agreement as of the time such notice of claim shall Indemnified Party has the right to be given, and any such Claim against Discovery shall be made, prosecuted, and if applicable, settled by Oyster in the name of FoundryCo. FoundryCo shall cooperate with Oyster in the investigation and prosecution of any such Claim, and shall make available to Oyster all witnesses, pertinent records, materials and information in FoundryCo’s possession or under FoundryCo’s control relating thereto as is reasonably required by Oyster in connection with such Claim or any Action related to such Claim. In the event that Oyster shall pursue a Claim against Discovery on behalf of FoundryCo, such indemnification shall be made directly to FoundryCo, provided that Oyster may recover all Oyster/FoundryCo Losses consisting of expenses (including reasonable attorneys’ and consultants’ fees and expenses) actually incurred by Oyster in connection with the investigation and prosecution of any such Claim or Action related to such Claimindemnified. (b) In Notwithstanding any other provisions of this Agreement, no party shall be liable under this Section 7 for an amount to the event extent, if any, that Oyster has any damages giving rise to such amount results from a Claim failure on the part of the Indemnified Party to exercise good faith in not jeopardizing or prejudicing the interests of the Indemnifying Party. (c) No Indemnified Party shall seek or be entitled to incidental, indirect or consequential damages or damages for lost profits in any claim for indemnification against Discovery pursuant under this Section 7, nor shall it accept payment of any award or judgment for such indemnification to Section 12.02 the extent that is based on Oyster/FoundryCo Losses suffered such award or incurred by FoundryCojudgment includes such party’s incidental, and Oyster suffers indirect or incurs such Oyster/FoundryCo Losses only indirectly as a result of a diminution in the value of Oyster’s debt consequential damages or equity securities of FoundryCo, then Oyster damages for lost profits. (d) All damages to which an Indemnified Party may pursue a Claim for indemnification by Discovery be entitled pursuant to the provisions of this Section 12.02 only on behalf of FoundryCo. Upon discharge and satisfaction by Discovery of the full amount of its indemnification obligations to FoundryCo for such Losses, Discovery’s indemnification obligations for such Losses 7 shall be deemed satisfied net of any insurance coverage with respect to Oyster. (c) Notwithstanding anything to the contrary contained in this Agreement: (i) Discovery shall not be liable for thereto and any Claim for indemnification pursuant to Section 12.02(a) or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), or Section 12.03(a) or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), unless and until the aggregate amount of indemnifiable Oyster/FoundryCo Losses and Pearl Losses which may be recovered from Discovery equals or exceeds, in the aggregate, twenty-one million dollars ($21,000,000) whereupon the Oyster/FoundryCo Indemnified Parties and the Pearl Indemnified Parties shall be entitled to indemnification for the full amount of such Oyster/FoundryCo Losses and Pearl Losses, as the case may be; and (ii) the maximum amount of indemnifiable Oyster/FoundryCo Losses and Pearl Losses which may be recovered tax benefits realizable by the Oyster/FoundryCo Indemnified Parties and Pearl Indemnified Parties arising out of or resulting from the causes set forth in Section 12.02(a) or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), and Section 12.03(a)or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), shall be, in the aggregate, seven hundred million dollars ($700,000,000). The limitations of this Section 12.06(c) shall not apply with respect to indemnification for Taxes pursuant to Section 12.02(a). (d) The Parties shall make appropriate adjustments for insurance proceeds actually received, net of all reasonable and documented costs and expenses of recovery, in calculating Losses under this Article XII. Any insurance proceeds actually recovered by an Indemnified Party to the extent relating to any Losses previously paid by an Indemnifying Party shall be paid over promptly to such Indemnifying Party. (e) No The Indemnifying Party (shall not be required to make any indemnification payment pursuant to this Section 7 until such time as the total amount of all damages that have been directly or any other indirectly suffered or incurred by an Indemnified Party) , or to which an indemnified party has or have otherwise become subject, exceeds $50,000. If the total amount of such damages exceeds $50,000, the Indemnified Party shall seek or be entitled to receive any consequential damages, including but not limited to loss be indemnified against and compensated and reimbursed for the amount of revenue or income, cost of capital, or loss of business reputation or opportunity, relating to any misrepresentation or breach of any warranty or covenant set forth in this Agreement or any Ancillary Agreement; nor shall any Party or Indemnified Party seek or be entitled to receive punitive damages as to any matter under, relating to or arising out of the transaction contemplated by this Agreement or the Ancillary Agreementssuch Damages exceeding $50,000.

Limits on Indemnification. (a) In calculating amounts payable to an Indemnified Party, the amount of any indemnified Losses shall be determined without duplication of any other Loss for which an indemnification claim has been made or could be made under any other representation, warranty, covenant, or agreement and shall be computed net of (i) payments actually recovered by the Indemnified Party under any insurance policy with respect to such Losses and (ii) any prior or subsequent actual recovery by the Indemnified Party from any Person with respect to such Losses and (iii) any Tax Benefit accruing to any Indemnified Party on account of such Losses. (b) Notwithstanding any other provision of this Agreement, in no event shall any Party be liable for punitive, special, incidental, indirect, consequential or lost profits damages of any kind or nature, regardless of the form of action through which such damages are sought, except for any such damages recovered by any third party against any Party in respect of which such Party would otherwise be entitled to indemnification pursuant to the terms hereof. (c) In addition to being entitled to exercise all rights provided herein, including recovery of damages, the Parties will be entitled to specific performance under this Agreement. The Parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations described in the foregoing sentence and hereby agree to waive in any action for specific performance of any such obligation the defense that a remedy at law would be adequate. (d) If the Closing occurs, neither the Company nor NGPMR will be entitled to indemnity under ** of this Agreement for Losses with respect to any claim under ** until the aggregate amount of all such claims **, and thereafter, the Company and/or NGPMR shall ** Losses **; provided however, that all Losses resulting from or arising out of any ** shall be indemnified against ** to the **. Except for a claim of actual fraud involving a knowing and intentional misrepresentation or omission of a material fact or willful or intentional breach, in no event will the aggregate liability of (i) ** under ** and (ii) ** under ** in respect of ** claims of ** under ** exceed **; provided, however, that the aggregate liability of ** under ** with respect to ** shall not exceed **; provided, further that the aggregate liability of ** under ** in respect of ** claims of ** under ** with respect to ** shall not exceed **. Notwithstanding anything to the contrary contained in this Agreement or the Shareholders’ Agreement, FoundryCo shall not submit any notice of Claim to Discovery or directly pursue any Claim for indemnification against Discovery for Oyster/FoundryCo Losses suffered by FoundryCo, in any case, pursuant to Section 12.02. Any such notice of claim shall be given, and any such Claim against Discovery shall be made, prosecuted, and if applicable, settled by Oyster in the name of FoundryCo. FoundryCo shall cooperate with Oyster in the investigation and prosecution of any such Claim, and shall make available to Oyster all witnesses, pertinent records, materials and information in FoundryCo’s possession or under FoundryCo’s control relating thereto as is reasonably required by Oyster in connection with such Claim or any Action related to such Claim. In the event that Oyster shall pursue a Claim against Discovery on behalf of FoundryCo, such indemnification shall be made directly to FoundryCo, provided that Oyster may recover all Oyster/FoundryCo Losses consisting of expenses (including reasonable attorneys’ and consultants’ fees and expenses) actually incurred by Oyster in connection with the investigation and prosecution of any such Claim or Action related to such Claim. (b) In the event that Oyster has a Claim for indemnification against Discovery pursuant to Section 12.02 that is based on Oyster/FoundryCo Losses suffered or incurred by FoundryCo, and Oyster suffers or incurs such Oyster/FoundryCo Losses only indirectly as a result of a diminution in the value of Oyster’s debt or equity securities of FoundryCo, then Oyster may pursue a Claim for indemnification by Discovery pursuant to the provisions of Section 12.02 only on behalf of FoundryCo. Upon discharge and satisfaction by Discovery of the full amount of its indemnification obligations to FoundryCo for such Losses, Discovery’s indemnification obligations for such Losses shall be deemed satisfied with respect to Oyster. (c) Notwithstanding anything to the contrary contained in this Agreement: , in no event shall the aggregate liability of (i) Discovery ** arising under this Agreement and from the transactions contemplated hereby exceed ** and (ii) ** arising under this Agreement and from the transactions contemplated hereby exceed **. The reimbursement and indemnification obligations set forth in ** shall not be liable for subject to any Claim for indemnification pursuant to Section 12.02(a) or (c) (to of the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), or Section 12.03(a) or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), unless and until the aggregate amount of indemnifiable Oyster/FoundryCo Losses and Pearl Losses which may be recovered from Discovery equals or exceeds, in the aggregate, twenty-one million dollars ($21,000,000) whereupon the Oyster/FoundryCo Indemnified Parties and the Pearl Indemnified Parties shall be entitled to indemnification for the full amount of such Oyster/FoundryCo Losses and Pearl Losses, as the case may be; and (ii) the maximum amount of indemnifiable Oyster/FoundryCo Losses and Pearl Losses which may be recovered by the Oyster/FoundryCo Indemnified Parties and Pearl Indemnified Parties arising out of or resulting from the causes limitations set forth in Section 12.02(a) or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), and Section 12.03(a)or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), shall be, in the aggregate, seven hundred million dollars ($700,000,000). The limitations of this Section 12.06(c) shall not apply with respect to indemnification for Taxes pursuant to Section 12.02(a). (d) The Parties shall make appropriate adjustments for insurance proceeds actually received, net of all reasonable and documented costs and expenses of recovery, in calculating Losses under this Article XII. Any insurance proceeds actually recovered by an Indemnified Party to the extent relating to any Losses previously paid by an Indemnifying Party shall be paid over promptly to such Indemnifying Party5.8. (e) No Party In no event shall the ** recovery of any Losses pursuant to this Article 5 be duplicative. (or any other Indemnified Partyf) The remedies provided in this Article 5 shall be the sole and exclusive legal remedies of the Parties, from and after the Closing, with respect to this Agreement and the transactions contemplated hereby; provided that nothing in this Section 5.8(f) shall seek prevent either Party from (i) seeking specific performance, injunctive and/or equitable relief for claims of breach or be entitled failure to receive perform covenants performable under this Agreement at any consequential damagestime after the Closing or (ii) pursuing, including but not limited to loss of revenue or incomeand recovering in respect of, cost of capital, or loss of business reputation or opportunity, relating to any claim based on actual fraud involving a knowing and intentional misrepresentation or breach omission of any warranty a material fact or covenant set forth in this Agreement willful or any Ancillary Agreement; nor shall any Party or Indemnified Party seek or be entitled to receive punitive damages as to any matter under, relating to or arising out of the transaction contemplated by this Agreement or the Ancillary Agreementsintentional breach.

Limits on Indemnification. (a) Notwithstanding anything An Indemnifying Party shall not be required to indemnify any Indemnified Parties to the contrary contained in this Agreement or the Shareholders’ Agreement, FoundryCo shall not submit any notice of Claim to Discovery or directly pursue any Claim for indemnification against Discovery for Oyster/FoundryCo Losses suffered by FoundryCo, in any case, pursuant to Section 12.02. Any such notice of claim shall be given, and any such Claim against Discovery shall be made, prosecuted, and if applicable, settled by Oyster in the name of FoundryCo. FoundryCo shall cooperate with Oyster in the investigation and prosecution extent of any such ClaimLosses that a court of competent jurisdiction shall have determined by final judgment to have resulted from any bad faith, and shall make available gross negligence or willful misconduct to Oyster all witnesses, pertinent records, materials and information in FoundryCo’s possession or under FoundryCo’s control relating thereto as is reasonably required by Oyster in connection with such Claim or any Action related to such Claim. In the event that Oyster shall pursue a Claim against Discovery on behalf of FoundryCo, such indemnification shall be made directly to FoundryCo, provided that Oyster may recover all Oyster/FoundryCo Losses consisting of expenses (including reasonable attorneys’ and consultants’ fees and expenses) actually incurred by Oyster in connection with extent occurring after the investigation and prosecution Closing of any such Claim or Action related to such ClaimIndemnified Parties. (b) In The amount of any Losses subject to indemnification under this Article 10 shall be reduced by the event that Oyster has a Claim for indemnification against Discovery pursuant amounts of any insurance proceeds actually received by the Indemnified Parties in connection therewith (net of any collection costs, including any reasonable out of pocket expenses incurred in obtaining such recovery, any deductible under any insurance policy and any costs or expenses attributable to Section 12.02 that is based on Oyster/FoundryCo Losses suffered increases in insurance premiums resulting from such claims, including retroactive premium adjustments and all other costs resulting therefrom or incurred by FoundryCoarising in connection therewith), and Oyster suffers any actual prior or incurs such Oyster/FoundryCo Losses only indirectly as a result subsequent contribution or other payments or recoveries of a diminution in like nature by the value of Oyster’s debt or equity securities of FoundryCo, then Oyster may pursue a Claim for indemnification by Discovery pursuant to the provisions of Section 12.02 only on behalf of FoundryCo. Upon discharge and satisfaction by Discovery of the full amount of its indemnification obligations to FoundryCo for such Losses, Discovery’s indemnification obligations for such Losses shall be deemed satisfied with respect to Oyster.Indemnified Parties from any Third (c) Notwithstanding anything to the contrary contained in this Agreement: (i) Discovery An Indemnified Party shall not be liable for any Claim for indemnification pursuant entitled under this Agreement to Section 12.02(a) or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), or Section 12.03(a) or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), unless and until the aggregate amount of indemnifiable Oyster/FoundryCo Losses and Pearl Losses which may be recovered from Discovery equals or exceeds, in the aggregate, twenty-one million dollars ($21,000,000) whereupon the Oyster/FoundryCo Indemnified Parties and the Pearl Indemnified Parties shall be entitled to indemnification multiple recoveries for the full amount of such Oyster/FoundryCo same Losses and Pearl Losses, as the case may be; and (ii) the maximum amount of indemnifiable Oyster/FoundryCo Losses and Pearl Losses which may be recovered by the Oyster/FoundryCo Indemnified Parties and Pearl Indemnified Parties arising out of against all or resulting from the causes set forth in Section 12.02(a) or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), and Section 12.03(a)or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), shall be, in the aggregate, seven hundred million dollars ($700,000,000). The limitations of this Section 12.06(c) shall not apply with respect to indemnification for Taxes pursuant to Section 12.02(a)any other parties. (d) The Parties shall make appropriate adjustments for insurance proceeds actually receivedNOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, net of all reasonable and documented costs and expenses of recoveryNO INDEMNIFIED PARTY SHALL BE ENTITLED UNDER THIS ARTICLE 10 TO RECOVER FROM THE INDEMNIFYING PARTY FOR ANY SPECIAL, in calculating Losses under this Article XII. Any insurance proceeds actually recovered by an Indemnified Party to the extent relating to any Losses previously paid by an Indemnifying Party shall be paid over promptly to such Indemnifying PartyPUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING ANY DAMAGES ON ACCOUNT OF DIMINUTION IN VALUE, LOST PROFITS OR OPPORTUNITIES OR LOST OR DELAYED BUSINESS BASED ON VALUATION METHODOLOGIES ASCRIBING A DECREASE IN VALUE TO THE COMPANY GROUP, ON THE BASIS OF A MULTIPLE OF A REDUCTION IN A MULTIPLE-BASED OR YIELD-BASED MEASURE OF FINANCIAL PERFORMANCE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, AT LAW, IN EQUITY OR OTHERWISE, AND WHETHER OR NOT ARISING FROM A PARTY’S OR ANY OF ITS AFFILIATES’ SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT, EXCEPT IN EACH CASE TO THE EXTENT ANY OF THE FOREGOING ARE DETERMINED BY A JUDGE OF COMPETENT JURISDICTION TO (X) ARISE IN CONNECTION WITH A BREACH OF SECTION 6.6 OR (Y) BE DIRECT OR FORESEEABLE DAMAGES OR LOSSES AND ARE PAYABLE TO A THIRD PERSON WITH RESPECT TO A THIRD-PARTY CLAIM, IN WHICH CASE ANY SUCH DAMAGES SHALL BE CONSIDERED PART OF LOSSES AND BE COVERED BY THE INDEMNIFICATION PROVISIONS SET FORTH IN THIS ARTICLE 10, AS APPLICABLE; PROVIDED THAT, FOR THE AVOIDANCE OF DOUBT, THE FOREGOING LIMITATIONS ON DAMAGES SHALL BE SOLELY APPLICABLE TO CLAIMS OR LOSSES FOR WHICH AN INDEMNIFIED PARTY IS ENTITLED TO RECOVERY FROM AN INDEMNIFYING PARTY UNDER SECTION 10.2 AND SHALL NOT LIMIT (i) ANY RIGHT OF RECOVERY TO WHICH AN INDEMNIFIED PARTY IS ENTITLED UNDER THE REPRESENTATION AND WARRANTY INSURANCE POLICY OR (ii) ANY CLAIM FOR FRAUD. (e) No Party NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ANY APPLICABLE LAW TO THE CONTRARY, IT IS UNDERSTOOD AND AGREED BY EACH OF THE PARTIES THAT EACH PARTY’S AFFILIATES, AND THE REPRESENTATIVES OF EACH PARTY AND EACH PARTY’S AFFILIATES, SHALL NOT HAVE (A) ANY PERSONAL LIABILITY TO ANY BUYER INDEMNIFIED PARTY OR SELLER INDEMNIFIED PARTY OR ANY OTHER PERSON UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER OR NOT AS A RESULT OF THE BREACH OF ANY REPRESENTATION, (f) Seller xxxxxx agrees that it will not make any claim for indemnification against Buyer or any other Company Group Member by reason of the fact that Seller or any of its Affiliates or Representatives was a controlling person, director, manager, employee, or representative of the applicable Company Group Member or was serving as such for another Person at the request of either Company Group Member (whether such claim is for Losses of any kind or otherwise and whether such claim is pursuant to any Law, Organizational Document, contractual obligation, or otherwise) with respect to any Losses for which the Buyer Indemnified Party) shall seek or be Parties are entitled to receive any consequential damages, including but not limited indemnification from Seller pursuant to loss of revenue or income, cost of capital, or loss of business reputation or opportunity, relating to any misrepresentation or breach of any warranty or covenant set forth in this Agreement or that is based on any Ancillary Agreement; nor shall any Party facts or circumstances that form the basis of a claim by a Buyer Indemnified Party seek hereunder, and Xxxxxx expressly waives any right of subrogation, contribution, advancement, indemnification, or be entitled to receive punitive damages as to any matter under, relating to or arising out of other claim against Buyer and the transaction contemplated by this Agreement or the Ancillary AgreementsCompany Group with respect thereto.

Limits on Indemnification. (a) Notwithstanding anything No claim may be asserted nor may any Action be commenced against any Party pursuant to this Article VIII, unless written notice of such claim or action is received by such Party describing in reasonable detail the facts and circumstances with respect to the contrary contained in this Agreement or the Shareholders’ Agreement, FoundryCo shall not submit any notice subject matter of Claim to Discovery or directly pursue any Claim for indemnification against Discovery for Oyster/FoundryCo Losses suffered by FoundryCo, in any case, pursuant to Section 12.02. Any such notice of claim shall be given, and any such Claim against Discovery shall be made, prosecuted, and if applicable, settled by Oyster in the name of FoundryCo. FoundryCo shall cooperate with Oyster in the investigation and prosecution of any such Claim, and shall make available to Oyster all witnesses, pertinent records, materials and information in FoundryCo’s possession or under FoundryCo’s control relating thereto as is reasonably required by Oyster in connection with such Claim or any Action related to such Claim. In the event that Oyster shall pursue a Claim against Discovery on behalf of FoundryCo, such indemnification shall be made directly to FoundryCo, provided that Oyster may recover all Oyster/FoundryCo Losses consisting of expenses (including reasonable attorneys’ and consultants’ fees and expenses) actually incurred by Oyster in connection with the investigation and prosecution of any such Claim or Action related on or prior to the date on which the representation, warranty, covenant or agreement on which such Claimclaim or Action is based ceases to survive as set forth in Section 8.01, irrespective of whether the subject matter of such claim or action shall have occurred before or after such date. (b) In the event that Oyster has a Claim for indemnification against Discovery pursuant to Section 12.02 that is based on Oyster/FoundryCo Losses suffered or incurred by FoundryCo, and Oyster suffers or incurs such Oyster/FoundryCo Losses only indirectly as a result of a diminution in the value of Oyster’s debt or equity securities of FoundryCo, then Oyster may pursue a Claim for indemnification by Discovery pursuant to the provisions of Section 12.02 only on behalf of FoundryCo. Upon discharge and satisfaction by Discovery of the full amount of its indemnification obligations to FoundryCo for such Losses, Discovery’s indemnification obligations for such Losses shall be deemed satisfied with respect to Oyster. (c) Notwithstanding anything to the contrary contained in this Agreement: (i) Discovery an Indemnifying Party shall not be liable for any Claim claim for indemnification pursuant to Section 12.02(a) or a SGA Warranty Breach (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreementother than an Excluded Warranty Breach), or Section 12.03(aa Purchaser Warranty Breach (other than an Excluded Warranty Breach) in respect of any Loss incurred or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), suffered by an Indemnified Party unless and until the aggregate amount of indemnifiable Oyster/FoundryCo Losses and Pearl Losses which may be recovered from Discovery the Indemnifying Parties equals or exceedsexceeds 1.5% of the Closing Purchase Price (the “Threshold”), in after which the aggregate, twenty-one million dollars ($21,000,000) whereupon the Oyster/FoundryCo Indemnified Parties and the Pearl Indemnified Indemnifying Parties shall be entitled to indemnification liable for all Losses (including those incurred in reaching the full amount of such Oyster/FoundryCo Losses and Pearl Losses, as the case may be; andThreshold); (ii) the maximum aggregate amount of indemnifiable Oyster/FoundryCo Losses and Pearl Losses which may be recovered by from the Oyster/FoundryCo Indemnified Parties and Pearl Indemnified Indemnifying Parties arising out of or resulting from all SGA Warranty Breaches (other than Excluded Warranty Breaches or, without duplication, Tax Losses under Section 6.02), or all Purchaser Warranty Breaches (other than Excluded Warranty Breaches), shall, with respect to the causes set forth indemnification obligations of the Purchaser, be an amount equal to (A) 12.5% of the Closing Purchase Price and (B) with respect to the indemnification obligations of any Seller, be an amount equal to 12.5% of such Seller’s Purchase Price Percentage of the Closing Purchase Price; (iii) in no event shall (A) the aggregate liability under this Article VIII or Section 12.02(a6.02, of the Purchaser, on the one hand, or the Sellers or the SGA Companies, on the other hand, exceed an amount equal to the Purchase Price and (B) the aggregate liability of any Seller exceed an amount equal such Seller’s Purchase Price Percentage times the Purchase Price; and (iv) neither the Purchaser nor the Sellers shall have any liability under any provision of this Agreement for (A) any punitive or exemplary damages relating to the breach or alleged breach of this Agreement, except to the extent such damages are awarded to a third party in respect of a Third Party Claim (and such amounts are actually paid by the applicable Indemnified Party to such third party) or (B) Losses or Tax Losses taken into account in the final calculation of the Final Adjustment Amount. (c) (Losses and Tax Losses shall not be subject to indemnification under this Article VIII or Section 6.02 to the extent also constituting a misrepresentation of any insurance or a breach other third party recoveries actually received by an Indemnified Party from an unaffiliated third party in respect of warranty contained such Losses, net of the cost of recovery of such amounts (including increases in this Agreement), and Section 12.03(a)or (c) (insurance premiums to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), shall be, in the aggregate, seven hundred million dollars ($700,000,000). The limitations of this Section 12.06(crelating to such Losses) shall not apply with respect to indemnification for Taxes pursuant to Section 12.02(a)realized by such Indemnified Party. (d) The Parties shall make appropriate adjustments for insurance proceeds actually received, net of all reasonable and documented costs and expenses of recovery, in calculating Losses under this Article XII. Any insurance proceeds actually recovered by If an Indemnified Party receives any payment from an Indemnifying Party in respect of any Losses or Tax Loss pursuant to this Article VIII or Section 6.02 and the Indemnified Party could have recovered all or a part of such Losses or Tax Loss from a third party (a “Potential Contributor”) based on the underlying claim giving rise to the payment of such Losses or Tax Loss, the Indemnified Party shall, to the extent relating the Indemnified Party has the legal right to any Losses previously paid by an do so, assign such of its rights to proceed against the Potential Contributor as are necessary to permit the Indemnifying Party shall be paid over promptly to recover from the Potential Contributor the amount of such Indemnifying Partypayment. (e) No Losses and Tax Losses shall be reduced by any net Tax benefit which is actually realized by the Indemnified Party (in cash or any other as a credit against otherwise immediately payable tax, as determined in each case by the Indemnified Party) shall seek or be entitled to receive any consequential damagesParty in its sole discretion, including but not limited to loss of revenue or income, cost of capitalby virtue of, or loss of business reputation or opportunitywith respect to, relating to any misrepresentation or breach of any warranty or covenant set forth in this Agreement or any Ancillary Agreement; nor shall any Party or Indemnified Party seek or be entitled to receive punitive damages as to any matter under, relating to or arising out the payment of the transaction contemplated by this Agreement loss or the Ancillary Agreementsexpense resulting in such Loss or Tax Loss.

Limits on Indemnification. ‌ (a) Notwithstanding anything to the contrary contained in this Agreement or the Shareholders’ Agreement, FoundryCo the Indemnifying Hospital shall not submit any notice of Claim be obligated to Discovery or directly pursue any Claim for indemnification against Discovery for Oyster/FoundryCo Losses suffered by FoundryCo, in any case, indemnify the Indemnified Parties pursuant to Section 12.029.2, unless the aggregate of all Damages for which any one or more Indemnified Parties would be liable exceeds, on a cumulative basis, $100,000.00 (the “Deductible”), at which point the Indemnified Parties shall only be entitled to indemnification for Damages in excess of an amount equal to the Deductible. Any such notice The maximum amount of claim Damages for which the Indemnifying Hospital shall be givenobligated to indemnify the Indemnified Parties pursuant to Section 9.2, and any shall not exceed an amount equal to three percent (3%) of such Claim against Discovery shall be made, prosecuted, and if applicable, settled by Oyster in Indemnifying Hospital’s Net Patient Services Revenue for the name of FoundryCo. FoundryCo shall cooperate with Oyster in the investigation and prosecution of any such Claim, and shall make available to Oyster all witnesses, pertinent records, materials and information in FoundryCo’s possession or under FoundryCo’s control relating thereto as is reasonably required by Oyster in connection with such Claim or any Action related to such Claim. In the event that Oyster shall pursue a Claim against Discovery on behalf of FoundryCo, such indemnification shall be made directly to FoundryCo, provided that Oyster may recover all Oyster/FoundryCo Losses consisting of expenses (including reasonable attorneys’ and consultants’ fees and expenses) actually incurred by Oyster in connection with the investigation and prosecution of any such Claim or Action related to such Claimmost recently completed fiscal year. (b) In If the event that Oyster has a Claim Indemnified Parties are indemnified for indemnification against Discovery any Damages pursuant to Section 12.02 that is based on Oyster/FoundryCo Losses suffered or incurred by FoundryCo, and Oyster suffers or incurs such Oyster/FoundryCo Losses only indirectly as a result of a diminution in the value of Oyster’s debt or equity securities of FoundryCo, then Oyster may pursue a Claim for indemnification by Discovery pursuant to the provisions of Section 12.02 only on behalf of FoundryCo. Upon discharge and satisfaction by Discovery of the full amount of its indemnification obligations to FoundryCo for such Losses, Discovery’s indemnification obligations for such Losses shall be deemed satisfied this Agreement with respect to Oysterany Third-Party Claim, then the Indemnifying Hospital shall be subrogated to all rights and remedies of the Indemnified Parties against such third party, and the Indemnified Parties shall reasonably cooperate with and assist the Indemnifying Hospital in asserting all such rights and remedies against such third party. (c) Notwithstanding anything The right to the contrary contained in this Agreement: (i) Discovery indemnification, payment, reimbursement, or other remedy based upon any such representation, warranty, covenant, or obligation shall not be liable for affected by any Claim for indemnification pursuant to Section 12.02(a) investigation conducted or (c) (to any knowledge acquired at any time, whether before or after the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), or Section 12.03(a) or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), unless execution and until the aggregate amount of indemnifiable Oyster/FoundryCo Losses and Pearl Losses which may be recovered from Discovery equals or exceeds, in the aggregate, twenty-one million dollars ($21,000,000) whereupon the Oyster/FoundryCo Indemnified Parties and the Pearl Indemnified Parties shall be entitled to indemnification for the full amount of such Oyster/FoundryCo Losses and Pearl Losses, as the case may be; and (ii) the maximum amount of indemnifiable Oyster/FoundryCo Losses and Pearl Losses which may be recovered by the Oyster/FoundryCo Indemnified Parties and Pearl Indemnified Parties arising out of or resulting from the causes set forth in Section 12.02(a) or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), and Section 12.03(a)or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), shall be, in the aggregate, seven hundred million dollars ($700,000,000). The limitations delivery of this Section 12.06(c) shall not apply Agreement or the Closing Date, with respect to indemnification for Taxes pursuant to Section 12.02(a)the accuracy or inaccuracy of, or compliance with, such representation, warranty, covenant, or obligation. (d) The Parties shall make appropriate adjustments for insurance proceeds actually received, net of all Any claims or losses set forth with reasonable and documented costs and expenses of recovery, specificity in calculating Losses under this Article XII. Any insurance proceeds actually recovered by an Indemnified Party indemnity notice given prior to the extent relating to any Losses previously paid by an Indemnifying Party applicable survival date shall be paid over promptly to such Indemnifying Partysurvive until resolved in accordance herewith. (e) No The Parties acknowledge and agree that their sole and exclusive remedy with respect to any and all claims under this Agreement (other than claims arising from fraud, criminal activity or willful misconduct on the part of a Party (or any other Indemnified Partyhereto in connection with the transactions contemplated by this Agreement) shall seek or be entitled pursuant to receive any consequential damages, including but not limited to loss of revenue or income, cost of capital, or loss of business reputation or opportunity, relating to any misrepresentation or breach of any warranty or covenant the indemnification provisions set forth in this Agreement or Article 9. (f) The amount of any Ancillary Agreement; nor shall Damages suffered by any Party under this Agreement shall be reduced by the amount, if any, of actual cash recovery (net of reasonable expenses incurred in obtaining such recovery or Indemnified benefit, including attorneys’ fees and costs, and any increased premiums attributable to the payment of such cash recovery or the existence of such Damages) that such Party seek or receives under any insurance policies. (g) Each of the Parties shall use commercially reasonable efforts to mitigate all Damages to the extent required by law upon, and after becoming aware of, any event that would reasonably be entitled expected to receive punitive damages as give rise to Damages. (h) Notwithstanding any other term herein, no Party shall be obligated to any matter underother Person for any punitive damages, relating to consequential damages or arising out of the transaction contemplated by this Agreement or the Ancillary Agreementsdamages for lost revenues.

Limits on Indemnification. (a) Notwithstanding anything to the contrary contained in this Agreement or the Shareholders’ Agreement, FoundryCo shall not submit any notice of Claim to Discovery or directly pursue any Claim for indemnification against Discovery for Oyster/FoundryCo Losses suffered by FoundryCo, in any case, pursuant to Section 12.02. Any such notice of claim shall be given, and any such Claim against Discovery shall be made, prosecuted, and if applicable, settled by Oyster in the name of FoundryCo. FoundryCo shall cooperate with Oyster in the investigation and prosecution of any such Claim, and shall make available to Oyster all witnesses, pertinent records, materials and information in FoundryCo’s possession or under FoundryCo’s control relating thereto as is reasonably required by Oyster in connection with such Claim or any Action related to such Claim. In the event that Oyster shall pursue a Claim against Discovery on behalf of FoundryCo, such indemnification shall be made directly to FoundryCo, provided that Oyster may recover all Oyster/FoundryCo Losses consisting of expenses (including reasonable attorneys’ and consultants’ fees and expenses) actually incurred by Oyster in connection with the investigation and prosecution of any such Claim or Action related to such Claim. (b) In the event that Oyster has a Claim for indemnification against Discovery pursuant to Section 12.02 that is based on Oyster/FoundryCo Losses suffered or incurred by FoundryCo, and Oyster suffers or incurs such Oyster/FoundryCo Losses only indirectly as a result of a diminution in the value of Oyster’s debt or equity securities of FoundryCo, then Oyster may pursue a Claim for indemnification by Discovery pursuant to the provisions of Section 12.02 only on behalf of FoundryCo. Upon discharge and satisfaction by Discovery of the full amount of its indemnification obligations to FoundryCo for such Losses, Discovery’s indemnification obligations for such Losses shall be deemed satisfied with respect to Oyster. (c) Notwithstanding anything to the contrary contained in this Agreement:, (ia) Discovery Seaboard shall not only be liable for any Claim for indemnification pursuant to Section 12.02(a) or (c) (ConAgra Losses arising hereunder to the extent also constituting a misrepresentation or a breach of warranty contained that any such ConAgra Losses exceed in this Agreement)the aggregate, or Section 12.03(a) or Four Million Dollars (c$4,000,000) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement)"Basket Amount") and such liability shall be only for amounts, unless and until the aggregate amount of indemnifiable Oyster/FoundryCo Losses and Pearl Losses which may be recovered from Discovery equals or exceedswhich, in the aggregate, twenty-one million dollars ($21,000,000) whereupon are in excess of the Oyster/FoundryCo Indemnified Parties Basket Amount; provided, however, that ConAgra Losses arising under or pursuant to any Seaboard Surviving Matters or any matter constituting fraud, intentional misrepresentation or criminal activity under applicable law by Seaboard Entities shall not be subject to the Basket Amount and the Pearl Indemnified Parties there shall be entitled no "threshold amount" on the indemnification obligations of Seaboard with respect to indemnification for the full amount of such Oyster/FoundryCo Losses and Pearl ConAgra Losses, as the case may be; and (iib) Seaboard aggregate liability for all ConAgra Losses, and ConAgra aggregate liability for all Seaboard Losses, shall not exceed an amount equal to one-half (1/2) of the maximum amount Purchase Price (the "Maximum Amount"); provided however, that ConAgra Losses arising under or pursuant to the last sentence of indemnifiable Oyster/FoundryCo Losses Section 8.16, Section 8.26, Section 23 and Pearl Losses which may matters constituting fraud, intentional misrepresentation or criminal activity under applicable law by Seaboard or the Seaboard Subsidiaries, shall not be recovered by subject to the Oyster/FoundryCo Indemnified Parties and Pearl Indemnified Parties arising out of or resulting from the causes set forth in Section 12.02(a) or Maximum Amount. (c) (With respect to any claim hereunder by ConAgra involving a defect in Seaboard's or the Seaboard Subsidiaries' title to any parcel of real estate included in the Assets or Seaboard Kentucky's title to any parcel of real estate owned by it on the Closing Date, ConAgra agrees to first file and pursue a claim against Lawyers Title Insurance Company under the applicable title insurance policy obtained by ConAgra hereunder and to file and pursue a claim against Seaboard only to the extent also constituting a misrepresentation or a breach of warranty contained such claim is not covered under such title insurance policy. In addition, notwithstanding anything in this Agreement)Agreement to the contrary, any claim hereunder by ConAgra involving a defect in the Seaboard Entities' title to any parcel of real estate shall be based upon, and Section 12.03(a)or (c) (limited to, the title representation and covenants made to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), shall be, ConAgra in the aggregate, seven hundred million dollars ($700,000,000). The limitations of this Section 12.06(c) shall not apply with respect to indemnification for Taxes Deeds delivered by Seaboard and the Seaboard Subsidiaries pursuant to Section 12.02(a). (d) The Parties shall make appropriate adjustments for insurance proceeds actually received6.2.1 hereof, net of all reasonable and documented costs and expenses of recovery, in calculating Losses under this Article XII. Any insurance proceeds actually recovered if transferred by an Indemnified Party to the extent relating to any Losses previously paid by an Indemnifying Party shall be paid over promptly to such Indemnifying Party. (e) No Party (or any other Indemnified Party) shall seek or be entitled to receive any consequential damages, including but not limited to loss of revenue or income, cost of capitalDeeds, or loss of business reputation or opportunity, relating to any misrepresentation or breach of any warranty or covenant set forth in this under the Agreement or any Ancillary Agreement; nor shall any Party or Indemnified Party seek or be entitled to receive punitive damages as to any matter under, relating to or arising out of the transaction contemplated if not transferred by this Agreement or the Ancillary AgreementsDeeds.

Limits on Indemnification. (a) Notwithstanding anything Buyer's remedies with respect to Losses specified in Section 6.2 shall be satisfied first by the assertion of its rights under the Escrow Agreement in respect of the Escrow Funds; PROVIDED, HOWEVER, that if the aggregate amount of such Losses shall be in excess of the amount of the Escrow Funds or if such Losses shall arise after termination or expiration of the Escrow Agreement, then the Seller, FRE, R&B, the Shareholders and the Members shall be obligated to indemnify Buyer in respect of all Losses not satisfied by delivery to Buyer of Escrow Funds to the contrary contained extent provided in this Agreement or the Shareholders’ Agreement, FoundryCo shall not submit any notice of Claim to Discovery or directly pursue any Claim for indemnification against Discovery for Oyster/FoundryCo Losses suffered by FoundryCo, in any case, pursuant to Section 12.02. Any such notice of claim shall be given, and any such Claim against Discovery shall be made, prosecuted, and if applicable, settled by Oyster in the name of FoundryCo. FoundryCo shall cooperate with Oyster in the investigation and prosecution of any such Claim, and shall make available to Oyster all witnesses, pertinent records, materials and information in FoundryCo’s possession or under FoundryCo’s control relating thereto as is reasonably required by Oyster in connection with such Claim or any Action related to such Claim. In the event that Oyster shall pursue a Claim against Discovery on behalf of FoundryCo, such indemnification shall be made directly to FoundryCo, provided that Oyster may recover all Oyster/FoundryCo Losses consisting of expenses (including reasonable attorneys’ and consultants’ fees and expenses) actually incurred by Oyster in connection with the investigation and prosecution of any such Claim or Action related to such ClaimArticle VI. (b) In the event that Oyster any Order of any Governmental Body shall have been issued in favor of Buyer (or its assignees) against Seller, FRE, R&B or any Principal with respect to the indemnification of Buyer's Losses hereunder, Buyer shall enforce such Order first against Seller or FRE (with respect to Orders against Seller, FRE or any Shareholder only) or R&B (with respect to Orders against R&B or any Member only) and then, to the extent Buyer has a Claim not received payment for indemnification such Losses from Seller, FRE or R&B, any Shareholder (with respect to Orders against Discovery pursuant Seller, FRE or any Shareholder only) or any Member (with respect to Section 12.02 Orders against R&B or any Member only) PROVIDED, HOWEVER, that is based if Buyer shall not (after diligent efforts) be able to enforce fully such Order against Seller, FRE or R&B within 12 months after the date of such Order, Buyer shall be entitled to enforce such Order against any such Shareholder (with respect to Orders against Seller, FRE or any Shareholder only) or any Member (with respect to Orders against R&B or any Member only). Notwithstanding the foregoing, any Buyer Losses in respect of the sales and use tax dispute described on Oyster/FoundryCo Losses suffered or incurred by FoundryCo, and Oyster suffers or incurs such Oyster/FoundryCo Losses only indirectly as a result of a diminution in the value of Oyster’s debt or equity securities of FoundryCo, then Oyster may pursue a Claim for indemnification by Discovery pursuant SCHEDULE 2.13 shall be fully indemnifiable without regard to the provisions of Section 12.02 only on behalf of FoundryCo. Upon discharge and satisfaction by Discovery of hereof relating to the full amount of its indemnification obligations Stipulated Amount and, in the event Seller or Shareholders indemnify Buyer with respect to FoundryCo for such Losses, Discovery’s indemnification obligations for the amount of such Losses shall not be deemed satisfied with respect to Oyster. (c) included in the calculation of the Stipulated Amount. Notwithstanding anything to the contrary contained in this Agreement: (i) Discovery , the Shareholders and the Members shall be primary obligors together with Seller and the General Partners and shall not be liable for any Claim for indemnification deemed as sureties or guarantors of the obligations of Seller or the General Partners pursuant to Section 12.02(a) or (c) (to Article VI, and in furtherance thereof the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), or Section 12.03(a) or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), unless Shareholders and until the aggregate amount of indemnifiable Oyster/FoundryCo Losses and Pearl Losses which may be recovered from Discovery equals or exceeds, in the aggregate, twenty-one million dollars ($21,000,000) whereupon the Oyster/FoundryCo Indemnified Parties and the Pearl Indemnified Parties shall be Members specifically acknowledge that they are not entitled to indemnification for exercise and do hereby waive any rights or defenses available to a surety or guarantor by reason of Sections 2787-2855 (inclusive) of the full amount of such Oyster/FoundryCo Losses California Civil Code, and Pearl Losses, as the case may be; and (ii) the maximum amount of indemnifiable Oyster/FoundryCo Losses and Pearl Losses which may be recovered by the Oyster/FoundryCo Indemnified Parties and Pearl Indemnified Parties any rights or defenses arising out of or resulting from the causes set forth in Section 12.02(a) or (c) (to the extent also constituting a misrepresentation or a breach an election of warranty contained in this Agreement), and Section 12.03(a)or (c) (to the extent also constituting a misrepresentation or a breach of warranty contained in this Agreement), shall be, in the aggregate, seven hundred million dollars ($700,000,000). The limitations of this Section 12.06(c) shall not apply with respect to indemnification for Taxes pursuant to Section 12.02(a)remedies by Buyer. (d) The Parties shall make appropriate adjustments for insurance proceeds actually received, net of all reasonable and documented costs and expenses of recovery, in calculating Losses under this Article XII. Any insurance proceeds actually recovered by an Indemnified Party to the extent relating to any Losses previously paid by an Indemnifying Party shall be paid over promptly to such Indemnifying Party. (e) No Party (or any other Indemnified Party) shall seek or be entitled to receive any consequential damages, including but not limited to loss of revenue or income, cost of capital, or loss of business reputation or opportunity, relating to any misrepresentation or breach of any warranty or covenant set forth in this Agreement or any Ancillary Agreement; nor shall any Party or Indemnified Party seek or be entitled to receive punitive damages as to any matter under, relating to or arising out of the transaction contemplated by this Agreement or the Ancillary Agreements.