Common use of Indemnification Limits Clause in Contracts

Indemnification Limits. (a) Subject to the remainder of this Section 8.5 and except for fraud, the indemnification provisions set forth in this Article 8 shall be the sole and exclusive remedy for the Indemnified Party for a breach of any representation, warranty or covenant by the Indemnifying Party and shall be in lieu of any rights the Indemnified Party may have under law or in equity with respect to any such breaches or otherwise. Except for claims based on fraud or claims under Section 8.2(d), the maximum aggregate liability of all Stockholders under Section 8.2 shall be limited to fifty percent (50%) of the Merger Consideration actually paid to the Stockholders (the “Maximum Amount”). Parent and the Stockholders shall each be responsible for one-half of any Damages resulting from Section 8.2(d) in excess of the Five Hundred Thousand Dollars ($500,000), which initial amount shall be the obligation of Parent and Surviving Corporation; provided however, in no event shall the maximum aggregate liability of all Stockholders under Section 8.2(d), exceed Five Million Dollars ($5,000,000) (the “Maximum Interference Liability”). If Parent receives any damages or amounts in settlement from Conceptus as a result of the Interference Requests, Parent and the Stockholders shall share equally in such damages or amounts received in settlement. Any claim for indemnification pursuant to Section 8.2(d) must be made by the end of the Contingent Period. If any such claim is not made by the end of the Contingent Period, the Stockholders shall not have any further liability under Section 8.2(d). If Parent receives any damages or amounts in settlement as a result of the Musket Litigation, the Stockholders shall be entitled to all such damages or amounts received in settlement. The maximum liability of each particular Stockholder, including the Principal Stockholders, as an Indemnifying Party under Section 8.2 shall be limited to such Stockholder’s interest in the Escrow Fund and the Contingent Merger Consideration, if any; provided that no Stockholder shall be required to refund to Parent any Merger Consideration that has been previously distributed to such Stockholder. Except for claims based on fraud or related to the Parent’s failure to pay the Merger Consideration under Sections 1.8 and 1.9, the maximum aggregate liability of Parent and the Surviving Corporation under Section 8.3 shall be limited to an amount equal to fifty percent (50%) of the Merger Consideration. (b) Except as expressly provided otherwise herein, and subject to the provisions of Section 8.4, neither the Stockholders nor the Parent, as the case may be, will be entitled to indemnification for any Damages under this Article 8 unless the aggregate of all Damages is more than One Hundred Thousand Dollars ($100,000) (the “Basket Amount”), other than (i) Damages under clauses (e) and (f) of Section 8.2, which shall not be subject to the Basket Amount, (ii) Damages resulting from Parent’s failure to pay the Merger Consideration under Sections 1.8 and 1.9, which shall not be subject to the Basket Amount, and (iii) Damages arising solely under clause (d) of Section 8.2 which shall be subject to a Five Hundred Thousand ($500,000) deductible. When the aggregate amount of all Damages subject to the Basket Amount equals or exceeds the Basket Amount, the Parent or the Stockholders, as the case may be, will be entitled to full indemnification of all claims, including the One Hundred Thousand Dollars ($100,000) that amounted to the Basket Amount. The parties hereto agree that the Basket Amount is not a deductible amount and that the Basket Amount will not be deemed to be a definition of “material” for any purpose in this Agreement. In no event will any Damages resulting from matters disclosed on any update to the Disclosure Schedule delivered pursuant to Section 4.8 be applied to the Basket Amount, unless there exists a material misstatement or omission on such update to the Disclosure Schedule that when read together with Section 2 results in a breach of a representation or warranty in this Agreement. (c) The parties shall make appropriate adjustments for any insurance benefits actually received by the Indemnified Party in determining Damages for purposes of this Article 8.

Indemnification Limits. In the event of any claim for indemnity solely under Sections 5.2(a) or 5.3(a) with respect to representations and warranties (aa “Rep Loss”): (i) Subject subject to the remainder of this Section 8.5 and except for fraud5.6, the indemnification provisions set forth in this Article 8 shall be the sole and exclusive remedy for the Indemnified Party for a breach under such representation and warranty claim shall not be entitled to indemnification therefor or withholding of any representationthe distribution of escrow funds therefor under the Escrow Agreement, warranty or covenant by the Indemnifying unless such Indemnified Party and shall be all related Indemnified Parties, in lieu the aggregate, have sustained Damages in excess of any rights the Indemnified Party may have under law or in equity with respect to any such breaches or otherwise. Except for claims based on fraud or claims under Section 8.2(d), the maximum aggregate liability of all Stockholders under Section 8.2 shall be limited to fifty percent (50%) of the Merger Consideration actually paid to the Stockholders US$225,000 (the “Maximum Basket Amount”). Parent ) in the aggregate, following which event such Indemnified Party and all related Indemnified Parties shall be entitled to indemnification to the Stockholders shall each be responsible for one-half extent of any all Damages resulting from Section 8.2(d) suffered or incurred in excess of the Five Hundred Thousand Dollars Basket Amount; and ($500,000)ii) the maximum amount of indemnification payable to an Indemnified Party and all related Indemnified Parties, which initial amount in the aggregate, shall be the obligation of Parent and Surviving Corporation; provided however, in no event shall the maximum aggregate liability of all Stockholders under Section 8.2(d), exceed Five Million Dollars ($5,000,000) (the “Maximum Interference Liability”). If Parent receives any damages or amounts in settlement from Conceptus as a result of the Interference Requests, Parent and the Stockholders shall share equally in such damages or amounts received in settlement. Any claim for indemnification pursuant to Section 8.2(d) must be made by the end of the Contingent Period. If any such claim is not made by the end of the Contingent Period, the Stockholders shall not have any further liability under Section 8.2(d). If Parent receives any damages or amounts in settlement as a result of the Musket Litigation, the Stockholders shall be entitled to all such damages or amounts received in settlement. The maximum liability of each particular Stockholder, including the Principal Stockholders, as an Indemnifying Party under Section 8.2 shall be limited to such Stockholder’s interest in the Escrow Fund and the Contingent Merger Consideration, if any; provided that no Stockholder shall be required to refund to Parent any Merger Consideration that has been previously distributed to such Stockholder. Except for claims based on fraud or related to the Parent’s failure to pay the Merger Consideration under Sections 1.8 and 1.9, the maximum aggregate liability of Parent and the Surviving Corporation under Section 8.3 shall be limited to an amount equal to fifty percent (50%) of the Merger Consideration. total consideration paid (b) Except as expressly provided otherwise hereinof a given date, and subject to the provisions of Section 8.4extent increased by amounts subsequently paid) by Purchaser to Seller pursuant to this Agreement and the Ancillary Agreements, neither including royalty payments, if any, paid pursuant to the Stockholders nor the Parent, as the case may be, will be entitled to indemnification for any Damages under this Article 8 unless the aggregate of all Damages is more than One Hundred Thousand Dollars ($100,000) License Agreement (the “Basket Maximum Amount”) provided, however, that such limitations shall not apply to any breach of (i) the representations and warranties contained in Sections 2.3 (“Authorization”), other than 2.5(b) (“Consents and Approvals”), 2.7 (“Purchased Assets”), and 2.23 (“Brokers”). Additionally, and notwithstanding anything herein to the contrary, (i) Damages under clauses (e) the Basket Amount and (f) of Section 8.2, which Maximum Amount shall not be subject apply with respect to the Basket Amount, any Fraud Claims; and (ii) Damages resulting from Parent’s failure the fact that Purchaser shall also have a Rep Loss claim, in addition to pay the Merger Consideration under Sections 1.8 and 1.9another indemnifiable claim, which such as for Retained Liabilities, shall not be subject subject, cause or permit such other indemnifiable claim to the Basket Amount, and (iii) Damages arising solely under clause (d) of Section 8.2 which shall be subject to a Five Hundred Thousand ($500,000) deductible. When the aggregate amount of all Damages subject to count against the Basket Amount equals or exceeds the Maximum Amount. For the purposes of determining whether the Basket AmountAmount and Maximum Amount have been reached, the Parent amount of any Damages related to a breach of a representation or the Stockholderswarranty shall be considered without regard to materiality, as the case may be, will be entitled to full indemnification of all claims, including the One Hundred Thousand Dollars ($100,000) that amounted to the Basket AmountMaterial Adverse Effect or similar qualification or exception set forth therein. The parties hereto agree do not intend that the Basket Amount is not a deductible amount and that or the Basket Maximum Amount will not be deemed to be a definition of what is “material” for any purpose in this Agreement. In no event will any Damages resulting from matters disclosed on any update to the Disclosure Schedule delivered pursuant to Section 4.8 be applied to the Basket Amount, unless there exists a material misstatement or omission on such update to the Disclosure Schedule that when read together with Section 2 results in a breach of a representation or warranty in under this Agreement. (c) The parties shall make appropriate adjustments for any insurance benefits actually received by the Indemnified Party in determining Damages for purposes of this Article 8.

Indemnification Limits. (a) Subject to the remainder of this Section 8.5 and except for fraud, the indemnification provisions set forth in this Article 8 shall be the sole and exclusive remedy for the Indemnified Party for a breach of any representation, warranty or covenant by the Indemnifying Party and shall be in lieu of any rights the Indemnified Party may have under law or in equity with respect to any such breaches or otherwise. Except for claims based on fraud or claims under Section 8.2(d), the maximum aggregate liability of all Stockholders under Section 8.2 shall be limited to fifty percent (50%) of the Merger Consideration actually paid to the Stockholders (the “Maximum Amount”). Parent and the Stockholders shall each be responsible for one-half of any Damages resulting from Section 8.2(d) in excess of the Five Hundred Thousand Dollars ($500,000), which initial amount shall be the obligation of Parent and Surviving Corporation; provided however, in no event shall the maximum aggregate liability of all Stockholders under Section 8.2(d), exceed Five Million Dollars ($5,000,000) (the “Maximum Interference Liability”). If Parent receives any damages or amounts in settlement from Conceptus as a result of the Interference Requests, Parent and the Stockholders shall share equally in such damages or amounts received in settlement. Any claim for indemnification pursuant to Section 8.2(d) must be made by the end of the Contingent Period. If any such claim is not made by the end of the Contingent Period, the Stockholders shall not have any further liability under Section 8.2(d). If Parent receives any damages or amounts in settlement as a result of the Musket Litigation, the Stockholders shall be entitled to all such damages or amounts received in settlement. The maximum liability of each particular Stockholder, including the Principal Stockholders, Shareholder as an Indemnifying Party under Section 8.2 shall be limited to such Stockholder’s Shareholder's interest in the Escrow Fund and the Contingent Merger ConsiderationEarnout Payment, if any; provided that no Stockholder shall be required to refund to Parent any Merger Consideration that has been previously distributed to such Stockholder. Except for claims based on fraud or related to (the Parent’s failure to pay the Merger Consideration under Sections 1.8 and 1.9, the maximum aggregate liability of Parent and the Surviving Corporation under Section 8.3 shall be limited to an amount equal to fifty percent (50%) of the Merger Consideration"Maximum Amount"). (b) Except as expressly provided otherwise herein, and subject to the provisions of Section 8.4, neither the Stockholders Shareholders nor the Parent, as the case may be, will be entitled to indemnification for any Damages under this Article 8 unless the aggregate of all Damages is more than One Two Hundred Thousand U.S. Dollars ($100,000200,000) (the “"Basket Amount”"), other than (i) Damages under clauses (eiv) and (fv) of Section 8.28.2 or for a breach of the representation in Section 2.17(b), which shall not be subject to the Basket Amount, (ii) Damages resulting from Parent’s failure to pay the Merger Consideration under Sections 1.8 and 1.9, which shall not be subject to the Basket Amount, and (iii) Damages arising solely under clause (d) of Section 8.2 which shall be subject to a Five Hundred Thousand ($500,000) deductible. When the aggregate amount of all such Damages subject to hereunder, other than Damages under clauses (iv) and (v) of Section 8.2 or for a breach of the Basket Amount representation in Section 2.17(b), equals or exceeds the Basket Amount, the Parent or the StockholdersShareholders, as the case may be, will be entitled to full indemnification of all claims, including the One Two Hundred Thousand U.S. Dollars ($100,000200,000) that amounted to the Basket Amount. The parties hereto agree that the Basket Amount is not a deductible amount and amount, nor that the Basket Amount will not be deemed to be a definition of “"material” " for any purpose in this Agreement. In no event will any Damages resulting from matters disclosed on any update to the Disclosure Schedule delivered pursuant to Section 4.8 be applied to the Basket Amount, unless there exists a material misstatement or omission on such update to the Disclosure Schedule that when read together with Section 2 results in a breach of a representation or warranty in this Agreement. (c) The parties shall make appropriate adjustments for any insurance benefits actually received by the Indemnified Party in determining Damages for purposes of this Article 8.

Indemnification Limits. (a) Subject to No Indemnifying Party (with the remainder of this Section 8.5 Sellers and except for fraud, the indemnification provisions set forth in this Article 8 shall be the sole and exclusive remedy for the Indemnified Owners as a group deemed as a single Indemnifying Party for a breach of any representation, warranty or covenant by the Indemnifying Party and shall be in lieu of any rights the Indemnified Party may have under law or in equity with respect to any such breaches or otherwise. Except for claims based on fraud or claims under Section 8.2(d), the maximum aggregate liability of all Stockholders under Section 8.2 shall be limited to fifty percent (50%this purpose) of the Merger Consideration actually paid to the Stockholders (the “Maximum Amount”). Parent and the Stockholders shall each be responsible for one-half of any Damages resulting from Section 8.2(d) in excess of the Five Hundred Thousand Dollars ($500,000), which initial amount shall be the obligation of Parent and Surviving Corporation; provided however, in no event shall the maximum aggregate liability of all Stockholders under Section 8.2(d), exceed Five Million Dollars ($5,000,000) (the “Maximum Interference Liability”). If Parent receives any damages or amounts in settlement from Conceptus as a result of the Interference Requests, Parent and the Stockholders shall share equally in such damages or amounts received in settlement. Any claim for indemnification pursuant to Section 8.2(d) must be made by the end of the Contingent Period. If any such claim is not made by the end of the Contingent Period, the Stockholders shall not have any further liability under Section 8.2(d). If Parent receives any damages or amounts in settlement as a result of the Musket Litigation, the Stockholders shall be entitled to all such damages or amounts received in settlement. The maximum liability of each particular Stockholder, including the Principal Stockholders, as an Indemnifying Party under Section 8.2 shall be limited to such Stockholder’s interest in the Escrow Fund and the Contingent Merger Consideration, if any; provided that no Stockholder shall be required to refund to Parent any Merger Consideration that has been previously distributed to such Stockholder. Except indemnify the Indemnified Party (with the Sellers and Owners as a group deemed as a single Indemnifying Party for claims based on fraud or related to this purpose) unless the Parent’s failure to pay the Merger Consideration under Sections 1.8 and 1.9, the maximum aggregate liability of Parent and the Surviving Corporation under Section 8.3 shall be limited to an amount equal to fifty percent (50%) of the Merger Considerationloss or claim for which indemnification is sought, when aggregated with all other losses and claims for which indemnification is sought by the Indemnified Party (with the Sellers and Owners as a group deemed as a single Indemnifying Party for this purpose), exceeds $20,000 ("Minimum Aggregate Liability Amount"), at which time rights to indemnification for losses and claims may be asserted for the Minimum Aggregate Liability Amount and any amounts in excess thereof. (b) Except as expressly provided otherwise herein, and subject No Seller or Owner shall be required to the provisions satisfy an indemnification obligation in excess of Section 8.4, neither the Stockholders nor the Parent, as the case may be, will be entitled to indemnification for any Damages under this Article 8 unless one hundred percent (100%) of the aggregate value of all Damages is more than One Hundred Thousand Dollars the Consideration received by such Seller or Owner and in no event shall Buyer and RCG collectively be required to satisfy an indemnification obligation in excess of one hundred percent ($100,000) (the “Basket Amount”), other than (i) Damages under clauses (e) and (f100%) of Section 8.2, which shall not be subject to the Basket Amount, (ii) Damages resulting from Parent’s failure to pay the Merger Consideration under Sections 1.8 and 1.9, which shall not be subject to the Basket Amount, and (iii) Damages arising solely under clause (d) of Section 8.2 which shall be subject to a Five Hundred Thousand ($500,000) deductible. When the aggregate amount value of all Damages subject to the Basket Amount equals or exceeds the Basket Amount, the Parent or the Stockholders, as the case may be, will be entitled to full indemnification of all claims, including the One Hundred Thousand Dollars ($100,000) that amounted to the Basket Amount. The parties hereto agree that the Basket Amount is not a deductible amount and that the Basket Amount will not be deemed to be a definition of “material” for any purpose in this Agreement. In no event will any Damages resulting from matters disclosed on any update to the Disclosure Schedule delivered pursuant to Section 4.8 be applied to the Basket Amount, unless there exists a material misstatement or omission on such update to the Disclosure Schedule that when read together with Section 2 results in a breach of a representation or warranty in this AgreementConsideration. (c) The parties limitations contained in this Section 9.4 shall make appropriate adjustments for not apply to (i) any insurance benefits actually received by indemnification claim under Sections 9.1(a)(ii), 9.1(b)(i), 9.1(b)(ii), 9.1(b)(iv) or 9.2(a)(ii); (ii) a Tax Claim, Ownership Claim or Environmental Claim; or (iii) any Loss which results from or arises out of fraud and intentional misrepresentation or an intentional breach of warranty on the Indemnified Party in determining Damages for purposes part of this Article 8a party to the Acquisition Documents.

Indemnification Limits. (a) Subject to the remainder of this Section 8.5 and except for fraudfraud and except for the rights of Stockholders' Representative pursuant to Article 10, the indemnification provisions set forth in this Article 8 shall be the sole and exclusive remedy for the Indemnified Party for a breach of any representation, warranty or covenant by the Indemnifying Party or for any Damages arising out of or related to this Agreement and shall be in lieu of any rights the Indemnified Party may have under law Applicable Law or in equity with respect to any such breaches or otherwise. Except for claims based on fraud or claims under Section 8.2(dbreach of the representations and warranties contained in Sections 2.17 (Benefit Plans), 2.20 (Environmental Compliance) and 2.22 (Tax Matters), the maximum aggregate liability of all Stockholders under Section 8.2 shall be limited to fifty thirty percent (5030%) of the Merger Consideration actually paid to the Stockholders (the “Maximum Amount”). Parent and the Stockholders shall each be responsible for one-half of any Damages resulting from Section 8.2(d) in excess of the Five Hundred Thousand Dollars ($500,000), which initial amount shall be the obligation of Parent and Surviving Corporation; provided however, in no event shall the maximum aggregate liability of all Stockholders under Section 8.2(d), exceed Five Million Dollars ($5,000,000) (the “Maximum Interference Liability”). If Parent receives any damages or amounts in settlement from Conceptus as a result of the Interference Requests, Parent and the Stockholders shall share equally in such damages or amounts received in settlement. Any claim for indemnification pursuant to Section 8.2(d) must be made by the end of the Contingent Period. If any such claim is not made by the end of the Contingent Period, the Stockholders shall not have any further liability under Section 8.2(d). If Parent receives any damages or amounts in settlement as a result of the Musket Litigation, the Stockholders shall be entitled to all such damages or amounts received in settlementConsideration. The maximum liability of each particular Stockholder, including the Principal Stockholders, as an Indemnifying Party Stockholder under Section 8.2 shall be limited to such Stockholder’s interest 's Percentage Interest in each of the Escrow Fund and the Contingent Merger Consideration, if any; provided that no Stockholder shall be required to refund to Parent any Merger Consideration that has been previously distributed to such Stockholder. Except for claims based on fraud or related to the Parent’s 's failure to pay the Merger Consideration make any payment due under Sections 1.8 and or 1.9, the maximum aggregate liability of Parent and the Surviving Corporation under Section 8.3 shall be limited to an amount equal to fifty thirty percent (5030%) of the Merger Consideration. (b) Except as expressly provided otherwise herein, and subject to the provisions of Section 8.4, neither the Stockholders nor the Parent, as the case may be, will be entitled to indemnification for any Damages under this Article 8 unless the aggregate of all Damages, other than Damages arising solely under clause (g) of Section 8.2, is more than One Three Hundred Thousand U.S. Dollars ($100,000300,000) (the “"Basket Amount”"), other than (i) Damages under clauses (d), (e) and (f) of Section 8.28.2 or clauses (d) and (f) of Section 8.3, which shall not be subject to the Basket Amount, Amount and (ii) Damages resulting from Parent’s failure to pay the Merger Consideration under Sections 1.8 and 1.9, which shall not be subject to the Basket Amount, and (iii) Damages arising solely under clause (dg) of Section 8.2 which shall be subject to a Five Three Hundred Thousand U.S. Dollars ($500,000300,000) deductibledeductible (the "Deductible Amount"). When the aggregate amount of all such Damages subject to the Basket Amount hereunder equals or exceeds the Basket Amount, the Parent or the Stockholders, as the case may be, will be entitled to full indemnification of all claims, including the One Three Hundred Thousand U.S. Dollars ($100,000300,000) that amounted to the Basket Amount. The parties hereto agree that the Basket Amount is not a deductible amount and amount, nor that the Basket Amount will not be deemed to be a definition of “"material” " for any purpose in this Agreement. In no event will any Damages resulting from matters disclosed on any update to the Disclosure Schedule delivered pursuant to under clause (g) of Section 4.8 8.2 be applied to the Basket Amount, unless there exists a material misstatement or omission on the event that gave rise to such update to the Disclosure Schedule that when read together with Section 2 results in Damages is also a breach of a representation or warranty in this Agreement. Notwithstanding the foregoing (x) Parent Indemnitees shall not be entitled to indemnification for any individual claim that results in Damages of less than Twenty-Five Thousand Dollars, excluding for purposes of this sentence only any costs incurred by Parent Indemnitees in investigating or defending such claim, including attorneys' fees or any diminution in the value of the Company based on such claim (a "De Minimis Claim"), and (y) no De Minimis Claim shall applied to the Basket Amount or the Deductible Amount. (c) The parties shall make appropriate adjustments for any insurance benefits actually received realized by the Indemnified Party in determining Damages for purposes of this Article 8. (d) In no event will Parent Indemnitees be entitled to indemnification for any liability that is reflected on the Closing Balance Sheet.