Common use of Maximum Recovery Clause in Contracts

Maximum Recovery. Notwithstanding anything to the contrary in this Agreement, if the Purchasing Parties fail to consummate the Acquisition or are otherwise in breach of this Agreement, then the Liability of the Purchasing Parties and any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or assignees with respect to any breach or alleged breach of any representation, warranty, covenant or agreement set forth in this Agreement and any claim, loss, cost, expenses, damage, Liability or obligation relating to this Agreement and the transactions contemplated hereby shall be limited to an amount equal to the amount of the Purchaser Termination Fee (it being understood that no person shall have any rights under the Equity Funding Letter (except as expressly provided therein)), whether at law or equity, in contract, in tort or otherwise (without prejudice to Seller Parent’s rights under the Limited Guarantee, dated as of the date hereof, by Purchaser Guarantor in favor of Seller Parent), except as expressly provided herein, including the right to specific performance in Section 10.09. None of the Purchasing Parties or any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or assignees shall have any further Liability or obligation relating to or arising out of the Acquisition, this Agreement, any Related Document or the other transactions contemplated hereby or thereby, except as expressly provided herein, including the right to specific performance in Section 10.09. Notwithstanding the foregoing, following the Closing the indemnification provisions of Article IX shall govern the parties’ rights to monetary damages and the foregoing limitations on damages shall not apply. Each party hereto hereby agrees and acknowledges that it specifically intends that the other parties hereto will have the right to specifically enforce this Agreement under the circumstances expressly provided in Section 10.09. Table of Contents

Maximum Recovery. (a) Notwithstanding anything to the contrary in this Agreement, if (i) the Purchasing Parties fail right to consummate terminate this Agreement and (to the Acquisition or are otherwise in breach of this Agreement, then the Liability extent provided by SECTION 7.03) receive payment of the Purchasing Parties Reverse Breakup Fee shall be the sole and exclusive remedy of the Company and its Subsidiaries against Parent, Merger Sub or the Guarantor for any loss or damage suffered as a result of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or assignees with respect to any breach or alleged the breach of any representation, warranty, covenant or agreement set forth contained in this Agreement and any claim, loss, cost, expenses, damage, Liability by Parent or obligation relating to this Agreement Merger Sub and the transactions contemplated hereby shall be limited to an amount equal to the amount failure of the Purchaser Termination Fee (it being understood that no person shall have any rights under the Equity Funding Letter (except as expressly provided therein))Merger to be consummated, whether at law or equity, in contract, in tort or otherwise (without prejudice to Seller Parent’s rights under the Limited Guarantee, dated as and upon payment of the date hereofReverse Breakup Fee in accordance with SECTION 7.03, by Purchaser none of Parent, Merger Sub or the Guarantor in favor of Seller Parent), except as expressly provided herein, including the right to specific performance in Section 10.09. None of the Purchasing Parties or any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or assignees shall have any further Liability liability or obligation relating to or arising out of this Agreement or the Acquisition, transactions contemplated by this Agreement, any Related Document and (ii) in no event, whether or not this Agreement shall have been terminated, shall the other transactions contemplated hereby or thereby, except as expressly provided herein, including the right to specific performance in Section 10.09. Notwithstanding the foregoing, following the Closing the indemnification provisions of Article IX shall govern the parties’ rights Company be entitled to monetary damages in excess of $120 million in the aggregate, inclusive of the Reverse Breakup Fee, if applicable, for all losses and damages arising from or in connection with breaches of this Agreement by Parent or Merger Sub or otherwise relating to or arising out of this Agreement or the foregoing limitations on transactions contemplated by this Agreement. (b) The Company agrees that, notwithstanding anything herein to the contrary, (i) to the extent it has incurred losses or damages in connection with this Agreement, (A) the maximum aggregate liability of Parent and Merger Sub for such losses or damages shall not apply. Each party hereto hereby agrees be limited to $120 million, (B) in no event shall the Company seek to recover any money damages in excess of such amount from Parent, Merger Sub or the Guarantor, and acknowledges that it specifically intends that (C) the other parties hereto will maximum liability of the Guarantor, directly or indirectly, shall be limited to the express obligations of the Guarantor under the Guarantee; and (ii) in no event shall any "Non-Recourse Party" (as defined in the Guarantee) have the right any liability or obligation relating to specifically enforce or arising out of this Agreement under or the circumstances expressly provided in Section 10.09. Table of Contentstransactions contemplated hereby.

Maximum Recovery. Notwithstanding anything to the contrary in this Agreement, if (i) (A) in the Purchasing Parties event that Parent or Merger Sub breaches its respective obligation to effect the Closing pursuant to Section 1.02 hereof and satisfy its obligations under Article II including depositing (or causing to be deposited) with the Paying Agent sufficient funds to make all payments pursuant to Section 2.02 and (B) Parent and Merger Sub fail to consummate effect the Acquisition Closing and satisfy such obligations because of a failure to receive the proceeds of one or more of the debt financings contemplated by the Debt Financing Commitments or because of their refusal to accept debt financing on terms materially less beneficial to Merger Sub than the terms set forth in one or more of the Debt Financing Commitments (and Parent and Merger Sub are not otherwise in breach of this Agreement, including their respective obligations pursuant to Section 5.11) such that the condition set forth in Section 6.03(b) would not be satisfied, then the Liability Company’s right to terminate this Agreement and receive the Merger Sub Termination Fee from Merger Sub shall be the sole and exclusive remedy of the Purchasing Parties Company and its Affiliates against Parent, Merger Sub and any of their respective former, current and future direct or indirect equity holders, controlling persons, Affiliates, stockholders, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners partners, assignees or assignees with respect to agents for any breach loss or alleged damage suffered as a result of the breach of any representation, warranty, covenant or agreement set forth contained in this Agreement and any claim, loss, cost, expenses, damage, Liability by Parent or obligation relating to this Agreement Merger Sub and the transactions contemplated hereby shall be limited to an amount equal to the amount failure of the Purchaser Termination Fee (it being understood that Merger to be consummated, and upon payment of such amount, no person Person shall have any rights under the any Equity Funding Letter (except as expressly provided therein))Financing Commitments, whether at law or equity, in contract, in tort or otherwise (without prejudice to Seller otherwise, and none of Parent’s rights under the Limited Guarantee, dated as of the date hereof, by Purchaser Guarantor in favor of Seller Parent), except as expressly provided herein, including the right to specific performance in Section 10.09. None of the Purchasing Parties Merger Sub or any of their respective former, current and future direct or indirect equity holders, controlling persons, Affiliates, stockholders, directors, officers, employees, agents, members, managers, general or limited partners, assignees or agents shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement and (ii) in no event shall Parent, Merger Sub and their respective former, current and future direct or indirect equity holders, controlling persons, Affiliates, stockholders, directors, officers, employees, agents, members, managers, general or limited partners partners, assignees or assignees shall have any further Liability agents be subject to liability in excess of $100,000,000 (one hundred million dollars) in the aggregate for all losses and damages arising from or obligation relating to in connection with breaches by Parent or arising out Merger Sub of the Acquisitionrepresentations, warranties, covenants and agreements contained in this Agreement, any Related Document or the other transactions contemplated hereby or thereby, except as expressly provided herein, including the right to specific performance in Section 10.09. Notwithstanding the foregoing, following the Closing the indemnification provisions of Article IX shall govern the parties’ rights to monetary damages and the foregoing limitations on damages shall not apply. Each party hereto hereby agrees and acknowledges that it specifically intends that the other parties hereto will have the right to specifically enforce this Agreement under the circumstances expressly provided in Section 10.09. Table of Contents.

Maximum Recovery. Notwithstanding anything The maximum amount that the Indemnified Parties may recover severally from the Rights Holders under this ARTICLE IV shall be limited to the contrary in this AgreementEscrow Amount, if the Purchasing Parties fail to consummate the Acquisition or are except as otherwise in breach of this Agreement, then the Liability of the Purchasing Parties and any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or assignees with respect to any breach or alleged breach of any representation, warranty, covenant or agreement expressly set forth in the following proviso and in the last sentence of this Agreement and any claimSection 4.5, lossprovided, costhowever, expensesthat Claims arising out of, damage, Liability or obligation relating to this Agreement (a) the Special Representations shall be limited to the amount of the Aggregate Merger Consideration, plus the Earnout Payments actually paid or due and payable to the transactions contemplated hereby Rights Holders, if any, (b) Section 2.11 (Intellectual Property) shall be limited to an aggregate amount equal to the amount twenty-five percent (25%) of the Purchaser Termination Fee (it being understood that no person shall have any rights under the Equity Funding Letter (except as expressly provided therein))Aggregate Merger Consideration, whether at law or equity, in contract, in tort or otherwise (without prejudice to Seller Parent’s rights under the Limited Guarantee, dated as which amount is inclusive of the date hereofEscrow Amount, by Purchaser Guarantor plus the Earnout Payments actually paid or due and payable to the Rights Holders, if any, and (c) any Working Capital Shortfall, fraud, willful misconduct or intentional misrepresentation shall not be subject to, and shall not be considered in favor of Seller Parent), except as expressly provided herein, including the right to specific performance in Section 10.09. None of the Purchasing Parties or any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or assignees shall have any further Liability or obligation relating to or arising out of the Acquisition, this Agreementdetermining, any Related Document or the other transactions contemplated hereby or thereby, except as expressly provided herein, including the right to specific performance in Section 10.09limitation of liability. Notwithstanding the foregoing, following (i) no Rights Holder shall be liable for any amount of a Loss that may be recovered by an Indemnified Party pursuant to ARTICLE IV in excess of such Rights Holder’s Pro Rata Share (including the Closing amount of any Earnout Payments actually paid or due and payable to such Rights Holder) of such Loss, except as contemplated by clause (ii) hereafter, (ii) the limitations of liability set forth in this ARTICLE IV will not apply to Claims of fraud, willful misconduct or intentional misrepresentation with respect to a Rights Holder that committed the fraud, willful misconduct or intentional misrepresentation, and (iii) the Indemnified Parties shall be required to first exhaust the Escrow Amount prior to seeking further indemnification provisions of Article IX recourse directly against any Rights Holders, other than with respect to claims for fraud, willful misconduct or intentional misrepresentation made directly against a Rights Holder who committed the fraud, willful misconduct or intentional misrepresentation. Parent shall govern the parties’ rights to monetary damages and the foregoing limitations on damages shall not apply. Each party hereto hereby agrees and acknowledges that it specifically intends that the other parties hereto will have the right to specifically enforce set off against any Earnout Payment actually due and payable to the Rights Holders any amounts for which an Indemnified Party is entitled to be indemnified in excess of the Escrow Amount (if, and to the extent that, the Escrow Amount is insufficient to provide any 55 required indemnification payment) as expressly permitted by (1) clauses (a) and (b) of the proviso included in the first sentence of this Agreement under Section 4.5 or (2) the circumstances expressly provided in Section 10.09immediately preceding sentence. Table of ContentsNotwithstanding anything herein to the contrary, Losses recovered from the Escrow Account shall be allocated pro rata among Rights Holders that have contributed to the Escrow Account.