Damage Threshold Clause Samples

Damage Threshold. (a) Notwithstanding the foregoing, none of the Former Synchrologic Shareholders shall have any liability under Section 10.1 and Pumatech may not receive any shares from the Escrow Fund unless and until an Officer’s Certificate or Certificates (as defined in Section 10.6 below) for an aggregate amount of Pumatech’s Damages in excess of $500,000 (the “Damages Threshold”) has been delivered to the Shareholders’ Agent and to the Escrow Agent; provided, however, that after an Officer’s Certificate or Certificates for an aggregate of $500,000 in Damages has been delivered, Pumatech shall be entitled (subject to the provisions of this Article X) to receive Escrow Shares equal in value to the full amount of Damages identified in such Officer’s Certificate or Certificates; and provided further, however, that the $500,000 threshold amount contemplated by this Section 10.4 shall not be applicable to claims made against the Escrow Fund pursuant to Section 10.1(b) above, which claims shall be subject to indemnification and reimbursement on a first dollar basis. Additionally, claims made against the Escrow Fund pursuant to Section 10.1(b) shall not be counted for purposes of determining whether the aggregate amount of Pumatech’s Damages exceeds the Damages Threshold. (b) Notwithstanding the foregoing, neither Pumatech nor the Surviving Corporation shall have any liability under Section 10.2 and the Synchrologic Indemnified Parties may not receive any indemnification or reimbursement of Damages unless and until an Agent’s Certificate or Certificates (as defined in Section 10.6 below) for an aggregate amount of Damages suffered by the Synchrologic Indemnified Parties in excess of the Damages Threshold have been delivered to Pumatech; provided, however, that after an Agent’s Certificate or Certificates for an aggregate amount exceeding the Damages Threshold has been delivered, the Synchrologic Indemnified Parties shall be entitled (subject to the provisions of this Article X) to receive indemnification or reimbursement in cash equal to the full amount of Damages identified in such Agent’s Certificate or Certificates.

Damage Threshold. Notwithstanding the foregoing, Parent may not receive any shares from the Escrow Fund unless and until an Officer's Certificate or Certificates (as defined in Section 10.4 below) identifying Damages the aggregate amount of which exceeds $100,000 has been delivered to the Escrow Agent as provided in Section 10.4 below and such amount is determined pursuant to this Article 10 to be payable, in which case Parent shall receive shares equal in value to the full amount of the Damages; provided, however, that in no event shall Parent receive more than the Escrow Shares.

Damage Threshold. Notwithstanding the foregoing, the Former Target Stockholders shall have no liability under Section 10.1 and Acquiror may not receive any shares from the Escrow Fund unless and until an Officer's Certificate or Certificates (as defined in Section 10.5 below) for an aggregate amount of Acquiror's Damages in excess of $125,000 has been delivered to the Stockholders' Agents and to the Escrow Agent; PROVIDED, HOWEVER, that after an Officer's Certificate or Certificates for an aggregate of $125,000 in Damages has been delivered, Acquiror shall be entitled to receive Escrow Shares equal in value to the full amount of Damages identified in such Officer's Certificate or Certificates.

Damage Threshold. Notwithstanding the foregoing, Acquiror may not receive any shares from the Escrow Fund unless and until an Officer's Certificate or Certificates (as defined in Section 8.5 below) identifying Damages the aggregate amount of which exceeds $150,000 has been delivered to the Escrow Agent as provided in Section 8.5 below and such amount is determined pursuant to this Article VIII to be payable, in which case Acquiror shall receive shares equal in value to the full amount of Damages. In determining the amount of any Damage attributable to a breach, any materiality standard contained in a representation, warranty or covenant of Acquiror shall be disregarded.

Damage Threshold. 48 SECTION 10.4

Damage Threshold. Notwithstanding the foregoing, none of the Sunbelt Shareholders shall have any liability under Section 8.1 and NSI may not receive any amounts from the Escrow Fund unless and until an Officer’s Certificate or Certificates (as defined in Section 8.5 below) for an aggregate amount of NSI’s Damages in excess of $50,000 has been delivered to the Sunbelt Shareholders and to the Escrow Agent; provided, however, that after an Officer’s Certificate or Certificates for an aggregate of $50,000 in Damages has been delivered, NSI shall be entitled to receive payment from the Escrow Fund equal in value to the amount of Damages identified in such Officer’s Certificate or Certificates that exceeds $50,000. Notwithstanding any other provision in this Article VIII, the liability of each Sunbelt Shareholder for indemnifiable claims pursuant to Section 8.1(a) arising out of a breach of Section 3.6 (Tax Matters), Section 8.1(b) (relating to Taxes) or Section 8.1(c) (relating to maintenance of a Positive Cash Balance) shall not be subject to the limitations of this Section 8.3.

Damage Threshold. Notwithstanding the foregoing, Acquiror may not receive any shares from the Escrow Fund unless and until the total amount of Damages incurred by Acquiror exceeds $25,000, provided, however, that after Acquiror has incurred an aggregate of $25,000 in Damages, Acquiror shall be entitled to receive Escrow Shares equal in value to the full amount of Damages.

Damage Threshold. (a) Notwithstanding Section 7.1, the Buyer may not receive any shares from the Escrow Fund unless and until an Officer's Certificate or Certificates (as defined in Section 7.5 below) and identifying the requirements of Section 7.5(a)(ii) and identifying Damages has been delivered to the Escrow Agent as provided in Section 7.5 below and such amount is determined pursuant to this Article VII to be payable, in which case the Buyer shall receive shares equal in value to the full amount of Damages. (b) If the Damages for the Intellectual Property Claims are in excess of the value of the Escrow Fund, the Buyer may then seek indemnification from the Company Stockholders pursuant to the Affiliate Agreements and the Stockholder Agreements. In no event shall the liability of each Former Company Stockholder with respect to all claims hereunder, including the Intellectual Property Claims, exceed the Indemnity Value for such Former Company Stockholder.

Damage Threshold. (a) Notwithstanding the foregoing, the Former RTI Stockholders shall have no liability under Section 10.1 and Mpath may not receive any shares from the Escrow Fund unless and until an Officer's Certificate or Certificates (as defined in Section 10.5 below) for an aggregate amount of Mpath's Regular Damages and Special IP Damages in excess of $100,000 has been delivered to the Stockholders' Agents and to the Escrow Agent; provided, however, that after an -------- ------- Officer's Certificate or Certificates for an aggregate of $100,000 in Regular Damages and Special IP Damages has been delivered Mpath shall be entitled, subject to the provisions of this Article X (including, without limitation, the provisions of Section 10.2), to receive Escrow Shares equal in value to the full amount of Regular Damages and/or Special IP Damages identified in such Officer's Certificate or Certificates. (b) Notwithstanding anything to the contrary in this Agreement, the amount of any Regular Damages and/or Special IP Damages as applicable otherwise due and/or payable to Mpath in connection with any claim for indemnification under this Agreement shall be reduced (i) to the extent that Mpath actually realizes, by reason of such Regular Damages and/or Special IP Damages (as applicable), any tax benefit, and (ii) by any insurance proceeds actually received by Mpath in respect thereof. Mpath shall use reasonable efforts to make a claim for Regular Damages or Special IP Damages, as applicable, from any available insurers prior to attempting to collect from the Escrow Fund. If Mpath recovers any amount from any insurer after payment to Mpath out of the Escrow Fund, of any Regular Damages and/or Special IP Damages suffered or incurred by Mpath in respect of the matters to which such insurance payment relates, then Mpath will promptly pay over to the Escrow Agent the amount so recovered, to the extent not in excess of the amount previously paid to Mpath in respect of such matter.