Common use of Monetary Limitations Clause in Contracts

Monetary Limitations. The Securityholders will have no obligation to indemnify the Parent Indemnified Persons pursuant to Section 9.01(a)(i) in respect of Losses arising from the breach of, or inaccuracy in, any representation, warranty or statement described therein unless and until the aggregate amount of all such Losses incurred or suffered by the Parent Indemnified Persons exceeds $300,000 (at which point the Securityholders will indemnify the Parent Indemnified Persons for all such Losses incurred or suffered pursuant to Section 9.1(a)(i) in excess of $300,000), and the Securityholders’ aggregate liability in respect of claims for indemnification pursuant to Sections 9.01(a)(i), 9.01(a)(ii), 9.01(a)(iv) and Section 9.01(a)(v) will be limited to the Escrow Amount as provided in Section 9.05(b); provided, that: (i) The foregoing limitations will not apply to claims for indemnification pursuant to Section 9.01(a)(i) in respect of breaches of, or inaccuracies in, the representations and warranties set forth in Sections 4.01 (Organization), 4.02 (Power and Authorization), 4.04(b)(iii) (Noncontravention), 4.05 (Capitalization of Company), and 4.24 (No Brokers); (ii) Claims for indemnification under Section 9.1(a)(ii), Section 9.01(a)(iv) and Section 9.01(a)(v) will not be subject to the $300,000 deductible referred to above but will be subject to the overall limitation set forth in Section 9.05(b); and (iii) The foregoing limitations will not apply to claims based upon fraud or intentional misrepresentation. Claims for indemnification pursuant to Section 9.01(a)(i) in respect of any breaches of Section 4.13 (Tax Matters) and claims for indemnification under Article X (collectively, “Tax Claims”) and claims for indemnification pursuant to any provision of Section 9.01(a)(iii) are not subject to the monetary limitations set forth in this Section 9.01(b). In addition to the limitations provided in Section 9.05(b), the aggregate liability of any Securityholder in respect of claims for indemnification pursuant to Section 9.01(a) shall not exceed the total Merger Consideration and/or Option Payments received by such Securityholder; provided, that the foregoing limitation will not apply to claims based upon fraud or intentional misrepresentation and will not apply to any claim against such Securityholder pursuant to Section 9.01(a)(iii). Notwithstanding anything to the contrary contained herein, other than with respect to claims based on the fraud or intentional misrepresentation of such Securityholder or a claim against such Securityholder pursuant to Section 9.01(a)(iii) and Tax Claims, no Securityholder shall be liable for more than its Pro Rata Escrow Percentage of any Loss subject to indemnification under Section 9.01 (a). With respect to any Tax Claims not fully covered by the Escrow Amount, each Securityholder will be liable for its Pro Rata Proceeds Percentage of such Tax Claims not fully covered by the Escrow Amount.

Monetary Limitations. The Securityholders will have no obligation (a) Notwithstanding anything to indemnify the Parent contrary in this Agreement (but subject to the exception for fraud in Section 8.1.2(c) on the terms and subject to the conditions in Section 8.1.2(c)), (i) a Buyer Indemnified Persons Person shall not be indemnified pursuant to Section 9.01(a)(i8.1.1(a) in respect of Losses arising from the (other than based on a breach of, or inaccuracy inin the representations and warranties set forth in Sections 3.1 (Organization), any representation3.2 (Power and Authorization), warranty or statement described therein unless 3.4(e) (Breach of Organizational Documents), 3.5.1, 3.5.2, 3.5.3 (Capitalization), 3.15 (Tax), 3.25 (No Brokers), 4.1 * Omitted information is the subject of a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934 and has been filed separately with the Securities and Exchange Commission. (Organization), 4.2 (Power and Authorization), 4.4(d) (No Breach of Organizational Documents), 4.5 (Title) and 4.6 (No Brokers), with respect to which the limitations in this clause (i) of Section 8.1.2(a) shall not apply) until the aggregate amount of all such Losses incurred or suffered by the Parent Buyer Indemnified Persons exceeds $300,000 (at exceeds, on a cumulative basis, the Threshold after which point the Securityholders indemnification will indemnify the Parent Indemnified Persons be available for all such Losses, not only the Losses incurred or suffered that exceed the Threshold, (ii) a Buyer Indemnified Person shall not be indemnified pursuant to Section 9.1(a)(i8.1.1(a) (other than based on a breach or inaccuracy in excess of $300,000), and the Securityholders’ aggregate liability in respect of claims for indemnification pursuant to Sections 9.01(a)(i), 9.01(a)(ii), 9.01(a)(iv) and Section 9.01(a)(v) will be limited to the Escrow Amount as provided in Section 9.05(b); provided, that: (i) The foregoing limitations will not apply to claims for indemnification pursuant to Section 9.01(a)(i) in respect of breaches of, or inaccuracies in, the representations and warranties set forth in Sections 4.01 3.15 (OrganizationTax) and 4.4(d) (No Breach of Organizational Documents)), 4.02 (Power and Authorization), 4.04(b)(iii) (Noncontravention), 4.05 (Capitalization of Company), and 4.24 (No Brokers); with respect to which the limitations in this clause (ii) Claims of Section 8.1.2(a) shall not apply) for indemnification under Section 9.1(a)(ii)any Materiality Strip Losses until the aggregate amount of all Materiality Strip Losses incurred or suffered by the Buyer Indemnified Persons exceeds, Section 9.01(a)(ivon a cumulative basis, [*] (the “Materiality Strip Deductible”) (after which the Buyer Indemnified Person shall recover only Losses in excess of the Materiality Strip Deductible) and Section 9.01(a)(v) will not be subject to the $300,000 deductible referred to above but will be subject to the overall limitation set forth in Section 9.05(b); and (iii) The foregoing limitations will the aggregate amount of Losses for which the Buyer Indemnified Persons may be indemnified pursuant to this Article 8 shall not apply exceed the aggregate amounts [*]. For example, (A) if the Buyer Indemnified Persons incur [*] of Losses for which they are entitled to claims based upon fraud or intentional misrepresentation. Claims for indemnification pursuant to Section 9.01(a)(i) in respect 8.1.1(a), and [*] of any breaches of Section 4.13 (Tax Matters) and claims for indemnification under Article X (collectivelysuch Losses are [*], “Tax Claims”) and claims for then the Buyer Indemnified Persons would be entitled to indemnification pursuant to any provision Section 8.1.1(a) for [*] and (B) if the Buyer Indemnified Persons then later incur an additional [*] of Losses for which they are entitled to indemnification pursuant to Section 9.01(a)(iii8.1.1(a), and [*] of such Losses [*], then the Buyer Indemnified Persons would be entitled to indemnification pursuant to Section 8.1.1(a) are not for an additional [*]. (b) Subject to the exception for fraud in Section 8.1.2(c) on the terms and subject to the monetary conditions in Section 8.1.2(c) (i) the rights of the Buyer Indemnified Persons under this Article 8 shall be the sole and exclusive remedy of the Buyer Indemnified Persons and their respective Affiliates with respect to claims under, or otherwise relating to the this Agreement and the Contemplated Transactions and (ii) the Escrow Account shall be the sole and exclusive means for the Buyer Indemnified Persons to collect any Losses for which they are entitled to indemnification under this Article 8. In the case of fraud, any Buyer Indemnified Person shall be entitled, at its option, to seek recourse against (without duplication) (i) the Escrow Account, (ii) the Equityholder or Equityholders, as applicable, in each case on the terms and subject to the conditions provided in Section 8.1.2(c), or (iii) both the Escrow Account and the Equityholder or Equityholders, as applicable, in each case on the terms and subject to the conditions provided in Section 8.1.2(c). (c) The limitations set forth in Sections 8.1.2(a), 8.1.2(b) and 8.3 shall not apply (i) in the case of fraud committed by the Company, to any claim by a Buyer Indemnified Person with respect to such fraud made against the Equityholders on or prior to the Fraud Survival Date and (ii) in the case of fraud committed by one or more Equityholders, to any claim by a Buyer Indemnified Person with respect to such fraud made against such Equityholders (but not any other Equityholders) on or prior to the Fraud Survival Date; provided that, in the case of clause (i), the Liability of the Equityholders for such fraud shall be several and not joint; and provided further that, in the case of both clauses (i) and (ii), in no event shall any Equityholder be liable to the Buyer Indemnified Persons for an amount in excess of the aggregate Initial Consideration, Series Bl Call Purchase Price set forth on Exhibit D (if any), Contingent Consideration (if any) and payments pursuant to the Carve Out Plan (if any) actually paid to such Equityholder pursuant to this Agreement or the Carve Out Plan. * Omitted information is the subject of a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934 and has been filed separately with the Securities and Exchange Commission. (d) None of Buyer or any of its Affiliates (including the Company) may set off against any payment required to be made by Buyer or any of its Affiliates (including the Company) to the Equityholders or to a Company Indemnified Party pursuant to this Agreement any amounts owed or claimed to be owed to Buyer or any of its Affiliates (including the Company) by any Equityholder or Company Indemnified Party (including, in either case, pursuant to this Article 8). For the avoidance of doubt, the limitations in this Section 9.01(b). In addition 8.1.2(d) shall not limit the express rights of the Buyer to deposit in the Escrow Account a portion of Milestone Payments pursuant to, and subject to the limitations provided in set forth in, Section 9.05(b), the aggregate liability of any Securityholder in respect of claims for indemnification pursuant to Section 9.01(a) shall not exceed the total Merger Consideration and/or Option Payments received by such Securityholder; provided, that the foregoing limitation will not apply to claims based upon fraud or intentional misrepresentation and will not apply to any claim against such Securityholder pursuant to Section 9.01(a)(iii). Notwithstanding anything to the contrary contained herein, other than with respect to claims based on the fraud or intentional misrepresentation of such Securityholder or a claim against such Securityholder pursuant to Section 9.01(a)(iii) and Tax Claims, no Securityholder shall be liable for more than its Pro Rata Escrow Percentage of any Loss subject to indemnification under Section 9.01 (a). With respect to any Tax Claims not fully covered by the Escrow Amount, each Securityholder will be liable for its Pro Rata Proceeds Percentage of such Tax Claims not fully covered by the Escrow Amount8.1.3.

Monetary Limitations. The Securityholders will Notwithstanding any other provision of this Agreement, (i) no Seller shall have no any obligation to indemnify the Parent Indemnified Persons any Buyer Indemnitee pursuant to Section 9.01(a)(i) in 10.2.6 (other than with respect of Losses arising from the breach of, or inaccuracy in, any representation, warranty or statement described therein unless and until the aggregate amount of all such Losses incurred or suffered by the Parent Indemnified Persons exceeds $300,000 (at which point the Securityholders will indemnify the Parent Indemnified Persons for all such Losses incurred or suffered pursuant to Section 9.1(a)(i) in excess of $300,000), and the Securityholders’ aggregate liability in respect of claims for indemnification pursuant to Sections 9.01(a)(i), 9.01(a)(ii), 9.01(a)(iv) and Section 9.01(a)(v) will be limited to the Escrow Amount as provided in Section 9.05(b); provided, that: (i) The foregoing limitations will not apply to claims for indemnification pursuant to Section 9.01(a)(i) in respect of breaches of, or inaccuracies in, of the representations and warranties set forth contained in Sections 4.01 (Organization5.1, 5.2, 5.7(a), 4.02 5.14, 5.17, 5.18 and 5.30) unless and until, and only to the extent that, the aggregate of all such individual Losses incurred or sustained by all Buyer Indemnitees with respect to which Buyer Indemnitees are entitled to indemnification under Section 10.2.6 (Power other than with respect to breaches or inaccuracies of the representations and Authorizationwarranties contained in Sections 5.1, 5.2, 5.7(a), 4.04(b)(iii5.14, 5.17, 5.18 and 5.30) exceeds Two Million Dollars ($2,000,000) (Noncontraventionthe "Minimum Aggregate Loss"), 4.05 (Capitalization of Company), in which case the Sellers shall only be liable for the amount by which all such Losses exceed the Minimum Aggregate Loss and 4.24 (No Brokers); (ii) Claims the aggregate liability of the Sellers to indemnify the Buyer Indemnitees for indemnification Losses under Section 9.1(a)(ii10.2.6 (other than with respect to breaches or inaccuracies of the representations and warranties contained in Sections 5.1, 5.2, 5.7(a), 5.14, 5.17, 5.18 and 5.30) shall in no event exceed Forty Million Dollars ($40,000,000) (the "Maximum Aggregate Loss"). Notwithstanding the foregoing, it is understood that the Sellers' obligations to indemnify any Buyer Indemnitee pursuant to Section 9.01(a)(iv10.2.6 with respect to breaches or inaccuracies of the representations or warranties contained in Sections 5.1, 5.2, 5.7(a), 5.14, 5.17, 5.18 or 5.30 or pursuant to Sections 10.2.1, 10.2.2, 10.2.3, 10.2.4, 10.2.5, 10.2.7, 10.2.8 or 10.2.9 (together, the "Surviving Representations, Warranties and Obligations") and Section 9.01(a)(v) will shall not be subject to the $300,000 deductible referred to above but will be subject to Minimum Aggregate Loss or the overall limitation set forth in Section 9.05(b); and (iii) The foregoing limitations will not apply to claims based upon fraud or intentional misrepresentationMaximum Aggregate Loss. Claims It is further understood and agreed that the sole source of payment for any Buyer Indemnitee against, and the sole responsibility of, any Seller for indemnification pursuant to Section 9.01(a)(i) in respect of any this Article 10 (except for claims for breaches of Section 4.13 (Tax Mattersthe Surviving Representations, Warranties and Obligations) and claims for indemnification under Article X (collectively, “Tax Claims”) and claims for indemnification shall be from such Seller's Seller's Percentage of the Escrow Account pursuant to any provision of Section 9.01(a)(iii) are not subject the Escrow Agreement and from amounts due to such Seller pursuant to the monetary limitations set forth in this Section 9.01(b)Earnout Agreement. In addition to the limitations provided in Section 9.05(b), no event shall the aggregate liability of any Securityholder in respect of claims Seller for indemnification pursuant to Section 9.01(a) shall not this Article 10 exceed the total Merger Consideration and/or Option Payments aggregate consideration received by such Securityholder; provided, that the foregoing limitation will not apply to claims based upon fraud or intentional misrepresentation and will not apply to any claim against such Securityholder Seller pursuant to Section 9.01(a)(iii). Notwithstanding anything to this Agreement, the contrary contained herein, other than with respect to claims based on the fraud or intentional misrepresentation of such Securityholder or a claim against such Securityholder pursuant to Section 9.01(a)(iii) Earnout Agreement and Tax Claims, no Securityholder shall be liable for more than its Pro Rata Escrow Percentage of any Loss subject to indemnification under Section 9.01 (a). With respect to any Tax Claims not fully covered by the Escrow Amount, each Securityholder will be liable for its Pro Rata Proceeds Percentage of such Tax Claims not fully covered by the Escrow AmountAgreement.

Monetary Limitations. The Securityholders Sellers will have no obligation to indemnify the Parent Buyer Indemnified Persons pursuant to Section 9.01(a)(i10.01(a)(ii) and Section 10.01(a)(v) in respect of Losses arising from the breach of, or inaccuracy in, any representation, warranty or statement described therein unless and until the aggregate amount of all such Losses incurred or suffered by the Parent Buyer Indemnified Persons exceeds $300,000 Four Hundred Fifty Thousand Dollars (at CAD$450,000) (the “Basket Amount”), in which point case the Securityholders will indemnify the Parent Buyer Indemnified Persons shall be entitled to indemnification for all such Losses incurred or suffered pursuant to Section 9.1(a)(i) in excess of $300,000)the Basket Amount, and the SecurityholdersSellers’ aggregate liability in respect of claims for indemnification pursuant to Sections 9.01(a)(i), 9.01(a)(ii), 9.01(a)(ivSection 10.01(a)(ii) and Section 9.01(a)(v10.01(a)(v) will be limited not exceed an amount equal to twenty percent (20%) of the Escrow Amount as provided Adjusted Purchase Price and each Sellers’ aggregate liability in respect of claims for indemnification pursuant to Section 9.05(b)10.01(a)(ii) and Section 10.01(a)(v) will not exceed the lesser of (i) such Seller’s Pro Rata Percentage of the Losses being claimed and (ii) such Seller’s Pro Rata Percentage of an amount equal to twenty percent (20%) of the Adjusted Purchase Price; provided, that: (i) The that the foregoing limitations will not apply to claims for indemnification pursuant to Section 9.01(a)(i10.01(a)(ii) and Section 10.01(a)(v) in respect of breaches of, or inaccuracies in, the representations and warranties set forth in Sections Section 3.01 (Organization), Section 3.02 (Power and Authorization), Section 3.04(b) (Breach of Organizational Documents), Section 3.05 (Capitalization), Section 3.07(l) (Absence of Certain Developments Related to Taxes), Section 3.08 (Debt), Section 3.23 (No Brokers), Section 3.26 (Pre-Closing Transactions), Section 4.01 (Organization), Section 4.02 (Power and Authorization), 4.04(b)(iiiSection 4.04(b) (NoncontraventionBreach of Organizational Documents), Section 4.05 (Capitalization of Company), Title) and 4.24 Section 4.06 (No Brokers) (or as such representations and warranties are repeated or confirmed in the certificate delivered at Closing pursuant to Section 7.04(b); ) (ii) Claims for indemnification under Section 9.1(a)(ii)collectively, Section 9.01(a)(ivthe “Seller Fundamental Representations”) and Section 9.01(a)(v) will not be subject to the $300,000 deductible referred to above but will be subject to the overall limitation those set forth in Section 9.05(b3.14 (Tax Matters); and (iii) The foregoing limitations will not apply to claims based upon fraud or intentional misrepresentation. Claims for indemnification pursuant to Section 9.01(a)(i) in respect of any breaches of Section 4.13 (Tax Matters) and claims for indemnification under Article X (collectively, “Tax Claims”) and claims for indemnification pursuant to any other provision of Section 9.01(a)(iii10.01(a) are not subject to the monetary limitations set forth in this Section 9.01(b10.01(b). In addition to the limitations provided in Section 9.05(b), the aggregate liability of any Securityholder in respect of claims for indemnification pursuant to Section 9.01(a) shall not exceed the total Merger Consideration and/or Option Payments received by such Securityholder; provided, that the foregoing limitation will not apply to claims based upon fraud or intentional misrepresentation and will not apply to any claim against such Securityholder pursuant to Section 9.01(a)(iii). Notwithstanding anything to the contrary contained herein, other than with respect to claims based on the fraud or intentional misrepresentation of such Securityholder or a claim against such Securityholder pursuant to Section 9.01(a)(iii) and Tax Claims, no Securityholder shall be liable for more than its Pro Rata Escrow Percentage of any Loss subject to indemnification under Section 9.01 (a). With respect to any Tax Claims not fully covered by the Escrow Amount, each Securityholder will be liable for its Pro Rata Proceeds Percentage of such Tax Claims not fully covered by the Escrow Amount.

Monetary Limitations. The Securityholders will have no obligation Subject to the last sentence of this Section 8.7, Seller shall not be required to indemnify the Parent Indemnified Persons pursuant to Buyer Indemnitees, and shall not have any Liability under Section 9.01(a)(i) in respect of Losses arising from the breach of8.2(a), or inaccuracy in, any representation, warranty or statement described therein unless and until the aggregate amount of all such Losses incurred or suffered by the Parent Indemnified Persons under Section 8.2(a) exceeds $300,000 200,000 (at which point the Securityholders will indemnify the Parent Indemnified Persons for all such Losses incurred or suffered pursuant to Section 9.1(a)(i) in excess of $300,000"MINIMUM LOSS"), and then only to the Securityholders’ extent such aggregate Losses exceed the Minimum Loss. Subject to the following sentence, the aggregate amount of each of Seller's liability for Losses under Section 8.2(a) and Buyer's and Parent's aggregate liability in respect of claims for indemnification pursuant to Sections 9.01(a)(i), 9.01(a)(ii), 9.01(a)(ivLosses under Section 8.2(b) and Section 9.01(a)(v) will shall be limited in each case to an amount equal to 40% of the Escrow Amount as provided in Section 9.05(b); provided, that: (i) Purchase Price. The foregoing limitations will not apply to claims for indemnification pursuant to Section 9.01(a)(i) in respect of breaches of, or inaccuracies in, the representations and warranties set forth in Sections 4.01 (Organization), 4.02 (Power and Authorization), 4.04(b)(iii) (Noncontravention), 4.05 (Capitalization of Company), and 4.24 (No Brokers); (ii) Claims for indemnification under Section 9.1(a)(ii), Section 9.01(a)(iv) and Section 9.01(a)(v) will not be subject to the $300,000 deductible referred to above but will be subject to the overall limitation set forth in Section 9.05(b); and (iii) The foregoing limitations will not apply to claims based upon fraud or intentional misrepresentation. Claims for indemnification pursuant to Section 9.01(a)(i) in respect of any breaches of Section 4.13 (Tax Matters) and claims for indemnification under Article X (collectively, “Tax Claims”) and claims for indemnification pursuant to any provision of Section 9.01(a)(iii) are not subject to the monetary limitations set forth in this Section 9.01(b). In addition to the limitations provided in Section 9.05(b), the aggregate liability of any Securityholder in respect of claims for indemnification pursuant to Section 9.01(a) shall not exceed the total Merger Consideration and/or Option Payments received by such Securityholder; provided, that the foregoing limitation will not apply to claims based upon fraud or intentional misrepresentation and 8.7 will not apply to any claim against such Securityholder pursuant Claims for indemnification in connection with, arising out of, or which would not have occurred but for: (a) a breach of the representations and warranties contained in Section 4.1, Section 4.2, Section 4.3, Section 4.5, Section 4.8, Section 4.14, Section 4.15, Section 4.19, Section 4.23, Section 4.25(a) (but excluding clause (ii) thereof), Section 4.25(b), Section 4.25(c), Section 4.29, Section 5.1, Section 5.2, Section 5.4 and Section 5.6; (b) fraud; or (c) Section 8.2(c), (d), (e), (f) or (g) or Section 8.3(c) or (d); and (d) covenants to Section 9.01(a)(iii)be performed in whole or in part, post-Closing. Notwithstanding the foregoing or anything to the contrary contained set forth herein, other than with the aggregate amount of Seller's liability shall be limited to an amount equal to the Purchase Price in respect to claims based of all Claims for indemnification in connection with, arising out of, or which would not have occurred but for, a breach of the representations and warranties contained in Section 4.4, Section 4.13 and Section 4.15; and (ii) the amount of Seller's liability for a breach of the representations and warranties contained in Section 4.19 shall be limited to, and determined by, a recalculation of the Closing Net Working Capital and the Adjustment Amount as if such Losses existed on the fraud or intentional misrepresentation of such Securityholder or a claim against such Securityholder Closing Date (giving effect to any and all prior payments made pursuant to Section 9.01(a)(iii3.2(d) in connection with the Purchase Price adjustment and any and all prior payments made pursuant to this clause (ii)), and no Losses shall be recoverable until and unless the aggregate amount of such Losses (for which no indemnification has been made and no adjustment was made in connection with the Purchase Price adjustment pursuant to Section 3.2(d)) exceeds on a cumulative basis the Adjustment Floor (as increased or reduced by any payment made in connection with the Purchase Price adjustment pursuant to Section 3.2(d) and Tax Claimsthe aggregate amount of all prior payments made pursuant to this clause (ii)), no Securityholder and then Seller's indemnification liability shall only be liable for more than its Pro Rata Escrow Percentage the amount of any Loss subject to indemnification under Section 9.01 the excess of such Losses over the Adjustment Floor (aas adjusted as described above). With respect It is understood and agreed that the purpose of the foregoing clause (ii) is to treat any Tax Claims not fully covered by Losses resulting from a breach of the Escrow Amountrepresentations and warranties contained in Section 4.19 as if such Losses existed on the Closing Date and were included in the calculation of the Closing Net Working Capital in determining the Adjustment Amount and any required payments under Section 3.2(d), each Securityholder will and to require any payments that would have been required to be liable for its Pro Rata Proceeds Percentage of made in connection with the Purchase Price adjustment under Section 3.2(d) if such Tax Claims not fully covered by Losses existed on the Escrow AmountClosing Date (and such payments hereunder shall equal, and in no event exceed, the amount that would have been required to be paid under Section 3.2(d) in connection with the Purchase Price adjustment if such Losses existed on the Closing Date).