Common use of Limitations of Damages Clause in Contracts

Limitations of Damages. (a) No Buyer Indemnified Party shall be entitled to recover from the Company any Losses pursuant to Section 8.2(a)(i) (except for Losses pursuant to indemnity claims for breaches of Section 3.11 (Taxes)) unless and until the amount of such Losses theretofore incurred by Buyer Indemnified Parties exceeds $2,000,000 (the “Losses Threshold”), and then only for such Losses in excess of the Losses Threshold. Except for Losses of Buyer Indemnified Parties pursuant to indemnity claims for breaches of Section 3.11 (Taxes), the maximum aggregate liability obligation of the Company to Buyer Indemnified Parties (including liabilities of the Company for cost, expenses and attorneys’ fees paid or incurred in connection therewith or in connection with the curing of any and all breaches of the Company’s representations, warranties, covenants and agreements) collectively pursuant to Section 8.2(a) shall not exceed seventeen and one-half percent (17.5%) of the Purchase Price. (b) Notwithstanding anything to the contrary set forth herein, no limitation or condition of liability or indemnity applicable to the parties shall apply to any breach of a representation or warranty if such representation or warranty was made with actual knowledge by a party that it (i) intentionally contained an untrue statement of a material fact or (ii) intentionally omitted to state a material fact necessary to make the statements contained therein not misleading. Solely for purposes of calculating the amount of Losses incurred arising out of or relating to any breach of a representation or warranty (and not for purposes of determining whether or not a breach has occurred), the references to “Material Adverse Effect” or other materiality qualifications (or correlative terms), including as expressed in accounting concepts such as GAAP, shall be disregarded. (c) The amount of any Losses for which indemnification is provided under this Article VIII shall be net of (i) any amounts actually recovered by Indemnified Parties pursuant to any indemnification by or indemnification agreement with any third party (net of any costs incurred to obtain such recovered amounts), and (ii) any insurance proceeds or other cash receipts or sources of reimbursement received as an offset against such Losses (net of any costs incurred to obtain such proceeds or reimbursement and all deductions and adjustments to premiums; and no right of subrogation shall accrue to any insurer or third party indemnitor hereunder) (each such source named in clauses (i) and (ii), a “Collateral Source”). If the amount to be netted hereunder from any payment required hereunder is determined after payment of any amount otherwise required to be paid to an Indemnified Party pursuant to this Article VIII, the Indemnified Party shall repay to the Company or to the Buyer, as applicable, promptly after such determination, any amount that should not have been paid pursuant to this Article VIII had such determination been made at the time of such payment. (d) Each of the Buyer and the Company acknowledge and agree that no Indemnified Party shall be indemnified for any Losses to the extent that such Losses result from actions taken by the Buyer after the Closing (with respect to claims by Buyer Indemnified Parties) or by the Company after the Closing (with respect to claims by Company Indemnified Parties); provided, however, that the foregoing shall not affect a party’s right to assert an indemnification claim. Nothing provided in this Article VIII shall limit any duty of an Indemnified Party to mitigate Losses under Applicable Law. (e) With respect to any other party, no party hereto shall be liable for any punitive, indirect or consequential damages or lost profits arising out of, based upon or resulting from the transactions contemplated by this Agreement, or any breach of any representation or warranty or covenant in this Agreement; provided, however, that, with respect to Losses relate to a breach by the Company of Section 3.10 (Environmental Matters), and Section 3.18 (Inventories), solely as it relates to product liability, the term “Losses” may include consequential damages and lost profits.

Limitations of Damages. (a) No Buyer Indemnified Party Neither Purchaser, on the one hand, nor Sellers, on the other hand, shall be entitled liable to recover from the Company other under this Article 8 for any Losses due pursuant to Section 8.2(a)(i8.1(a)(i) (except for Losses pursuant to indemnity claims for breaches of or Section 3.11 (Taxes)8.1(b)(i) unless and until the amount of such Losses theretofore incurred by Buyer Indemnified Parties such party exceeds $2,000,000 (the “Losses Threshold”), and then only 500,000. Neither Sellers' nor Purchaser's aggregate liability for such Losses in excess of the Losses Threshold. Except for Losses of Buyer Indemnified Parties pursuant to indemnity claims for breaches of Section 3.11 (Taxes), the maximum aggregate liability obligation of the Company to Buyer Indemnified Parties (including liabilities of the Company for cost, expenses and attorneys’ fees paid or incurred in connection therewith or in connection with the curing of any and all breaches of the Company’s representations, warranties, covenants and agreements) collectively due pursuant to Section 8.2(a8.1(a)(i) or 8.1(b)(i) shall not in any event exceed seventeen and one-half percent (17.5%) of the Purchase Price$15,000,000. (b) The limitations on the indemnification obligations set forth in this Section 8.2 shall not apply to any covenants or agreements of the parties in this Agreement. In addition, notwithstanding the provisions of paragraph (a) above, the limitations on the indemnification obligations of the parties set forth therein shall not apply to breaches of the representations and warranties made in Sections 3.1(a) and (d) and Section 3.2(a). (c) Notwithstanding anything to the contrary set forth herein, no limitation or condition of liability or indemnity applicable to the parties shall apply to any breach of a representation or warranty if such representation or warranty was made with actual knowledge by a party that it (i) intentionally contained an untrue statement of a material fact or (ii) intentionally omitted to state a material fact necessary to make the statements contained therein not misleading. Solely for purposes of calculating the amount of Losses incurred arising out of or relating to any breach of a representation or warranty (and not for purposes of determining whether or not a breach has occurred), the references to “"Material Adverse Effect” " or other materiality qualifications (or correlative terms), including as expressed in accounting concepts such as GAAP, shall be disregarded. (cd) The amount of any Losses Loss for which indemnification is provided under this Article VIII Section 8 shall be net of (i) any amounts actually recovered by Indemnified Parties pursuant to any indemnification by or indemnification agreement with any third party (net of any the costs incurred to obtain of recovery of such amounts) recovered amounts), and (ii) any insurance proceeds or other cash receipts or sources of reimbursement received as an offset against such Losses (net of any costs incurred to obtain such proceeds or reimbursement and all deductions and adjustments to premiums; and no right of subrogation shall accrue to any insurer or third party indemnitor hereunder) (each such source named in clauses (i) and (ii), a “Collateral Source”). If the amount to be netted hereunder from any payment required hereunder is determined after payment of any amount otherwise required to be paid to an Indemnified Party pursuant to this Article VIII, by the Indemnified Party shall repay to the Company or to the Buyer, as applicable, promptly after such determination, any amount that should not have been paid pursuant to this Article VIII had such determination been made at the time of such payment. (d) Each of the Buyer and the Company acknowledge and agree that no Indemnified Party shall be indemnified for any Losses to the extent that such Losses result from actions taken by the Buyer after the Closing (under insurance policies with respect to claims by Buyer Indemnified Parties) or by the Company after the Closing (with respect to claims by Company Indemnified Parties); provided, however, that the foregoing shall not affect a party’s right to assert an indemnification claim. Nothing provided in this Article VIII shall limit any duty of an Indemnified Party to mitigate Losses under Applicable Lawsuch Loss. (e) With Other than in respect to any other partyof Sellers' representation and warranty set forth in Section 3.1(c), no party hereto shall be liable for any punitive, indirect punitive or consequential damages or lost profits arising out of, based upon or resulting from the transactions contemplated by this Agreement, or any breach of any representation or warranty warranty, covenant or covenant in this Agreementagreement of any party contained herein; provided, however, that, with that the foregoing shall not preclude indemnification in respect to Losses relate to a breach by the Company of Section 3.10 (Environmental Matters), and Section 3.18 (Inventories), solely as it relates to product liability, the term “Losses” may any third party claims that include claims for punitive or consequential damages and lost profitsasserted by such third party.

Limitations of Damages. (a) No Buyer Indemnified Party shall be entitled to recover from the Company any Losses pursuant to Section 8.2(a)(i) (except for Losses pursuant to indemnity claims for breaches of Section 3.11 (Taxes)) Seller Indemnitor any Buyer Loss unless and until the aggregate amount of all such Buyer Losses theretofore incurred by all Buyer Indemnified Parties exceeds $2,000,000 (500,000, in which case the “Seller Indemnitors will be liable for the aggregate amount of all such Buyer Losses Threshold”), and then only for such Losses not just the amount in excess of $500,000; provided, however, to the extent any Buyer Loss relates to any breach or inaccuracy in any of the representations and warranties of Seller contained in this Agreement as a result of matters disclosed on any Disclosure Supplement, no Buyer Indemnified Party shall be entitled to recover from any Seller Indemnitor any Buyer Loss unless and until the aggregate amount of all such Buyer Losses Threshold. Except for Losses of theretofore incurred by all Buyer Indemnified Parties pursuant to indemnity claims exceeds $2,000,000, in which case the Seller Indemnitors will be liable for breaches the aggregate amount of Section 3.11 (Taxes)all such Buyer Losses and not just the amount in excess of $2,000,000. Notwithstanding the foregoing, the preceding sentence shall not apply to Buyer Losses arising from the Company’s indemnification obligations under the Note Purchase Agreements, the Company’s obligations under the Registration Rights Agreements or the Royal Indemnity Arbitration. The maximum aggregate liability obligation of Seller Indemnitors to the Company to Buyer Indemnified Parties for Buyer Losses (including liabilities Losses of the Company Seller for costcosts, expenses and attorneys’ fees paid or incurred in connection therewith or in connection with the curing of any and all breaches of the CompanySeller’s or Parent’s representations, warranties, covenants and agreements, but excluding Buyer Losses arising from (i) a breach of Section 3.1 (Title to Shares) or Section 4.4 (Capitalization), (ii) the Company’s indemnification obligations under the Note Purchase Agreements, (iii) the Company’s obligations under the Registration Rights Agreements or (iv) the Royal Indemnity Arbitration) collectively pursuant shall not, for Indemnified Party Claims properly made by Buyer Indemnified Parties (x) prior to the first anniversary of the Closing Date, exceed $20,000,000, and (y) thereafter, exceed $10,000,000 (provided that all Indemnified Party Claims properly made prior to the first anniversary of the Closing Date and actually paid to Buyer Indemnified Parties by any Seller Indemnitor at any time shall be credited toward such $10,000,000 limitation such that the aggregate liability of the Seller Indemnitors shall not exceed $20,000,000). The maximum aggregate liability of Seller Indemnitors to the Buyer Indemnified Parties for Buyer Losses arising from (i) a breach of Section 8.2(a3.1 (Title to Shares) or Section 4.4 (Capitalization), (ii) the Company’s indemnification obligations under the Note Purchase Agreements, (iii) the Company’s obligations under the Registration Rights Agreements or (iv) the Royal Indemnity Arbitration (including Losses of Seller for costs, expenses and attorneys’ fees paid or incurred in connection therewith) collectively shall not exceed the Purchase Price. Notwithstanding the foregoing, this Section 11.4(a) shall not apply to any indemnification obligation of a Seller Indemnitor pursuant to Article VIII of this Agreement, and in no event shall the aggregate obligations of the Seller Indemnitors pursuant to this Article XI exceed seventeen and one-half percent (17.5%) of the Purchase Price. (b) Notwithstanding anything to the contrary set forth herein, no limitation or condition of liability or indemnity applicable to the parties shall apply to any breach of a representation or warranty if such representation or warranty was made with actual knowledge by a party that it (i) intentionally contained an untrue statement of a material fact or (ii) intentionally omitted to state a material fact necessary to make the statements contained therein not misleading. Solely for purposes of calculating the amount of any Buyer Losses incurred arising out of or relating to any breach or inaccuracy of a representation or warranty (and not for purposes of determining whether or not a breach has occurred), the references to “Material Adverse Effect” or other materiality qualifications (or correlative terms), including as expressed in accounting concepts such as GAAP, ) shall be disregarded. (c) The amount Each of any Losses for which indemnification is provided under this Article VIII shall be net of (i) any amounts actually recovered by Indemnified Parties pursuant to any indemnification by or indemnification agreement with any third party (net of any costs incurred to obtain such recovered amounts), and (ii) any insurance proceeds or other cash receipts or sources of reimbursement received as an offset against such Losses (net of any costs incurred to obtain such proceeds or reimbursement and all deductions and adjustments to premiums; and no right of subrogation shall accrue to any insurer or third party indemnitor hereunder) (each such source named in clauses (i) and (ii), a “Collateral Source”). If the amount to be netted hereunder from any payment required hereunder is determined after payment of any amount otherwise required to be paid to an Indemnified Party pursuant to this Article VIII, the Indemnified Party shall repay to the Company or to the Buyer, as applicableParent, promptly after such determination, any amount that should not have been paid pursuant to this Article VIII had such determination been made at the time of such payment. (d) Each of the Buyer Seller and the Company acknowledge Guarantor acknowledges and agree agrees that no Indemnified Party shall be indemnified have a right to assert claims under any provision of this Agreement for any Losses to the extent that such Losses result from relate to actions taken by the Buyer Buyer, Parent or its Affiliates after the Closing (with respect to claims by the Buyer Indemnified Parties) or by the Company Seller, Guarantor or their Affiliates after the Closing (with respect to claims by Company Seller Indemnified Parties); provided, however, that the foregoing shall not affect a party’s right to assert an indemnification claim. Nothing provided in this Article VIII XI shall limit any duty of an Indemnified Party to mitigate Losses under Applicable Law. (e) With respect applicable Law applicable to any other partythe business, no party hereto shall be liable for any punitive, indirect or consequential damages or lost profits arising out of, based upon or resulting from the transactions contemplated by this Agreement, or any breach of any representation or warranty or covenant in this Agreement; provided, however, that, with respect to Losses relate to a breach by the Company of Section 3.10 (Environmental Matters), and Section 3.18 (Inventories), solely as it relates or to product liability, the term “Losses” may include consequential damages and lost profitsBuyer.

Limitations of Damages. (a) No Buyer Indemnified Party shall be entitled to recover from the Company Seller any Losses pursuant to Section 8.2(a)(i) (except for Losses pursuant to indemnity claims for breaches of Section 3.11 (Taxes)10.1(a)(i) unless and until the aggregate amount of such Losses theretofore incurred by all Buyer Indemnified Parties exceeds $2,000,000 300,000 (the “Losses Threshold”), ) and then only for such Losses in excess of the Losses Threshold. Except for Losses of Buyer Indemnified Parties pursuant to indemnity claims for breaches of Section 3.11 (Taxes), the The maximum aggregate liability obligation of Seller to the Company to Buyer Indemnified Parties (including liabilities Liabilities of the Company Seller for cost, expenses and attorneys’ fees paid or incurred in connection therewith or in connection with the curing of any and all breaches of the CompanySeller’s representations, warranties, covenants and agreements) collectively pursuant to Section 8.2(a10.1(a)(i) shall not exceed seventeen $2,500,000 (the “Maximum Liability”); provided, however, that the Maximum Liability for Losses resulting from or arising out of any breach or inaccuracy of a representation or warranty included in Section 4.1 [Organization], Section 4.2 [Authorization], Section 4.3 [No Conflicts or Violations; No Consents or Approvals Required], Section 4.5(a) through Section 4.5(e), [Title to Transferred Assets], Section 4.9 [Taxes], Section 4.10 [Brokers and one-half percent (17.5%) of Finders], Section 4.11 [Environmental Matters] and Section 5.4 [Brokers and Finders] or any certificate based on any such Sections shall be the Purchase Price. (b) Notwithstanding anything to the contrary set forth herein, no limitation or condition of liability or indemnity applicable to the parties shall apply to any breach of a representation or warranty if such representation or warranty was made with actual knowledge by a party that it (i) intentionally contained an untrue statement of a material fact or (ii) intentionally omitted to state a material fact necessary to make the statements contained therein not misleading. Solely for purposes of calculating the amount of Losses incurred arising out of or relating to any breach or inaccuracy of a representation or warranty (and not for purposes of determining whether or not a breach has occurred), the references to “Material Adverse Effect” or other materiality qualifications (or correlative terms), including as expressed in accounting concepts such as GAAP, shall be disregarded. (c) The amount of any Losses for which indemnification is provided under this Article VIII 10 shall be net of (i) net of any amounts actually recovered by Indemnified Parties pursuant to any insurance proceeds or indemnification by or indemnification agreement with any third party (net of any costs incurred to obtain such recovered amounts), and (ii) any insurance proceeds or other cash receipts or sources of reimbursement received as an offset against such Losses (net of any costs incurred to obtain such proceeds or reimbursement and all deductions and adjustments to premiums; and no right of subrogation shall accrue to any insurer or third party indemnitor hereunder) (each such source named in clauses clause (i) and (ii), a “Collateral Source”)) and (ii) increased to take account of any net Tax cost incurred by the Indemnified Party attributable to such Losses and reduced to take account of any net Tax benefit realized by the Indemnified Party attributable to such Losses. If the amount to be netted hereunder from any payment required hereunder is determined after payment of any amount otherwise required to be paid to an Indemnified Party pursuant to this Article VIII10, the Indemnified Party shall repay to the Company Seller or to the Buyer, as applicable, promptly after such determination, any amount that should not have been paid pursuant to this Article VIII 10 had such determination been made at the time of such payment. Indemnification under this Article 10 shall not be available to any Indemnified Party to the extent that such Indemnified Party has not first sought recovery from any Collateral Source for such claim. (d) Each of the Buyer and the Company acknowledge Seller acknowledges and agree agrees that no Indemnified Party shall be indemnified have a right to assert claims under any provision of this Agreement for any Losses to the extent that such Losses result from relate to actions taken by the Buyer after the Closing Effective Time (with respect to claims by the Buyer Indemnified Parties) or by the Company Seller after the Closing Effective Time (with respect to claims by Company Seller Indemnified Parties); provided, however, that the foregoing shall not affect a party’s right to assert an indemnification claim. Nothing provided in this Article VIII 10 shall limit any duty of an Indemnified Party to mitigate Losses under Applicable Lawapplicable Law applicable to the Business or to Buyer. (e) With respect to any other party, no No party hereto shall be liable for any punitive, indirect or consequential damages or lost profits arising out of, based upon or resulting from the transactions contemplated by this Agreement, Agreement or any breach of any representation or warranty or covenant in this Agreement; provided, however, that, with respect to Losses relate except for punitive damages paid to a breach by the Company of Section 3.10 third party (Environmental Matters)that is not an Indemnified Party) pursuant to a Third Party Action, which punitive damages shall be included in, and Section 3.18 (Inventories)recoverable as, solely as it relates to product liability, the term “Losses” Losses for which an Indemnified Party may include consequential damages and lost profitsseek indemnification under this Article 10.