Common use of Damage Threshold Clause in Contracts

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. (a) Notwithstanding the foregoing, none of the Former Synchrologic Shareholders Indemnifying Parties shall have any no liability under Section 10.1 8.1 and Pumatech the Indemnified Parties may not receive any shares cash 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 $500,000 125,000 (the “Damages Damage Threshold”) has been delivered to the ShareholdersStockholders’ Agent and to the Escrow Agent; provided, however, that after an Officer’s Certificate or Certificates for an aggregate amount in excess of $500,000 in Damages the Damage Threshold has been delivered, Pumatech the Indemnified Parties shall be entitled (subject to the provisions of this Article X) to receive Escrow Shares equal in value to the full entire amount of any Officer’s Certificate or Certificates for Damages identified in such Officer’s Certificate or CertificatesCertificates without reduction for the Damage Threshold; and provided further, however, that the $500,000 threshold full amount contemplated of any of Indemnified Party’s Damages incurred in connection with any willful misrepresentation or fraud, any breach of Sections 2.3, 2.15, 2.25, 2.32, 2.34 and 3.1, any Dissenting Share Payments pursuant to Section 1.9, any Excess Third Party Expenses, any Consent Payments and any DCAA Audit Adjustment shall be deducted by this Section 10.4 shall not be applicable to claims made against the Indemnified Parties from the Escrow Fund pursuant without regard to the Damage Threshold in this 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 Threshold8.3. (b) The Indemnifying Parties’ indemnity obligations for Damages under this Agreement shall be limited, in the aggregate, to an amount equal to the sum of the Escrow Amount plus thirty percent (30%) of the Total Consideration (the “Cap”). Any indemnification payments required to be made by the Indemnifying Parties hereunder shall be made first from the Escrow Fund until the Escrow Fund has been exhausted, and then the indemnity obligations of the Indemnifying Parties shall be satisfied by the other assets of the Indemnifying Parties. Notwithstanding the foregoing, neither Pumatech nor the Surviving Corporation shall have indemnity obligations for Damages under this Agreement incurred in connection with any willful misrepresentation or fraud, any breach of the representations and warranties in Sections 2.11 and 2.19, any allegations by a Governmental Body that the Company or any of its Subsidiaries submitted or caused to be submitted to any Table of Contents Governmental Body false claims for payment under Contracts with a Governmental Body or any other Person, the disbarment or exclusion of the Company or its Subsidiaries from engaging in contracting with any Governmental Body as a result of conduct occurring prior to the Closing, or any Proceeding that relates to a product 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 similar claim brought with respect to products or Certificates (as defined in Section 10.6 below) for an aggregate amount of Damages suffered services sold or provided by the Synchrologic Indemnified Parties in excess of Company or any Subsidiary prior to the Damages Threshold have been delivered to Pumatech; providedClosing, 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 not be entitled (subject to the provisions of Cap, provided that in no case shall the aggregate indemnity obligations for Damages for such matters under this Article X) to receive indemnification or reimbursement in cash equal to Agreement exceed the full amount of the Total Consideration, except in the case of Damages identified in such Agent’s Certificate resulting from willful misrepresentation or Certificatesfraud, which shall not be limited.

Damage Threshold. (a) Notwithstanding the foregoing, none of the Former Synchrologic Shareholders shall have any liability under Section 10.1 and Pumatech Acquiror may not receive any shares from the Escrow Fund unless and until an Acquiror Officer’s 's Certificate or Certificates (as defined in Section 10.6 8.5 below) for an identifying Acquiror Damages the aggregate amount of Pumatech’s Damages in excess of which exceeds $500,000 (the “Damages Threshold”) 100,000 has been delivered to the Shareholders’ 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 Escrow Agentfull amount of Acquiror Damages; provided, however, that after an Officer’s in no event shall Acquiror receive more than the number of shares of Acquiror Common Stock originally placed in the Escrow Fund indemnification. In determining the amount of any Acquiror Damage attributable to a breach, any materiality standard contained in a representation, warranty or covenant of Acquiror shall be disregarded. (b) Notwithstanding the foregoing, the Target Indemnified Persons may not receive any Indemnity Shares from Acquiror unless and until a Target Certificate or Certificates for an (as defined in Section 8.5 below) identifying Target Damages the aggregate amount of which exceeds $500,000 in Damages 100,000 has been delivered, Pumatech shall be entitled (subject delivered to the provisions of Acquiror as provided in Section 8.5 below and such amount is determined pursuant to this Article X) VIII to be payable, in which case the Target Indemnified Persons shall receive Escrow Indemnity Shares equal in value to the full amount of Damages identified Target Damages. In determining the amount of any Target Damage attributable to a breach, any materiality standard contained in such Officer’s Certificate a representation, warranty or Certificates; and covenant 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 Acquiror 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 Thresholddisregarded. (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. (a) Notwithstanding From and after the foregoingClosing and subject to the limitations contained in Sections 6.02, none each 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 Stockholders (the “Damages ThresholdIndemnifying Parties”) has been delivered shall, severally, but each subject to a maximum limitation of $100,000 (the “Indemnity Fund”), indemnify and hold the Buyer harmless against any loss, expense, liability or other damage, including reasonable attorneys’ fees, to the Shareholders’ Agent and to extent of the Escrow Agentamount of such loss, expense, liability or other damage (collectively, “Damages”) that the Buyer has actually incurred by reason of the breach by the Stockholders or the Company of any representation, warranty, covenant or agreement of the Stockholders or the Company contained in this Agreement or in any document or certificate delivered by the Stockholders or the Company pursuant hereto; provided, however, that after with regard to attorneys fees incurred as a result of an Officer’s Certificate or Certificates for an aggregate of $500,000 in Damages has been deliveredalleged breach by the Company, 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 Buyer shall not be applicable to claims made against the Escrow Fund pursuant to Section 10.1(b) above, which claims shall be subject entitled to indemnification and reimbursement on for such fees if there is a first dollar basisfinal judgment by a court that a breach did not occur. AdditionallyIn addition to the amount in the Indemnity Fund, claims made against each Indemnifying Party shall (i) fully indemnify the Escrow Fund pursuant to Section 10.1(bBuyer for (x) shall not be counted for purposes of determining whether the aggregate amount of Pumatech’s any 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 amount of the Indemnity Fund) relating to such Indemnifying Party’s willful misconduct or fraud in connection with the representations and warranties set forth herein or in any document delivered by such Indemnifying Party to the Buyer, and the transactions contemplated under this Agreement without limitation, and (y) any Damages Threshold have been delivered (in excess of the amount of the Indemnity Fund) relating to Pumatechsuch Indemnifying Party’s breach with respect to representations and warranties made in Sections 3.04 (Capitalization; Ownership of Stock), 4.01 (Title to Shares), 4.02 (Stockholder Power and Authority) and 4.03 (Effect of Agreement on the Stockholders), and (ii) indemnify the Buyer up to a maximum limitation of $900,000 for any Damages relating to such Indemnifying Party’s breach with respect to representations and warranties made in Section 3.15 (Tax Matters), provided, however, that after an Agentthat, with respect to such indemnification in excess of the amount of the Indemnity Fund, in no event shall any Indemnifying Party be liable for such willful misconduct, fraud or breach of another Indemnifying Party. The rights to indemnification set forth in this Section VI shall be the Buyer’s Certificate sole and exclusive remedy for any such breaches by the Stockholders or Certificates for an aggregate amount exceeding the Damages Threshold has been deliveredCompany. In furtherance of the foregoing, the Synchrologic Indemnified Parties shall be entitled (subject Buyer hereby waives to the fullest extent permitted under applicable law, any and all rights, claims and causes of action (other than claims of, or causes of action arising from, fraud or willful misconduct) it may have in connection with this Agreement against the Company or the Stockholders arising under or based upon any Legal Requirement or otherwise (except pursuant to the indemnification provisions of the Stockholders set forth in this Article X) to receive indemnification or reimbursement in cash equal to the full amount of Damages identified in such Agent’s Certificate or CertificatesSection VI).

Damage Threshold. (a) Notwithstanding the foregoingSection 8.2, none of the Former Synchrologic Shareholders shall have any liability under Section 10.1 and Pumatech Acquiror may not receive any shares from the Escrow Fund with respect to the indemnification obligations of the shareholders of Target set forth in Section 8.2(a)(i) unless and until an Officer’s 's Certificate or Certificates (as defined in Section 10.6 8.5 below) for satisfying the requirements of Section 8.5(a)(ii) and identifying Damages 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; provided, however, that in no event shall Acquiror receive more than 10% of the shares of Acquiror Common Stock issued at the Closing. (b) Notwithstanding Section 8.2, Acquiror may not receive any shares from the Escrow Fund with respect to the indemnification obligations of the shareholders of Target set forth in Section 8.2(a)(ii) unless and until an Officer's Certificate or Certificates (as defined in Section 8.5 below) satisfying the requirements of Section 8.5(a)(i) and (ii) and identifying Damages the aggregate amount of Pumatech’s Damages in excess which exceeds $150,000 (which aggregate amount cannot include any individual Damage items of $500,000 (the “Damages Threshold”5,000 or less) has been delivered to the Shareholders’ Escrow Agent as provided in Section 8.5 below and such amount is determined pursuant 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) VIII to be payable, in which case Acquiror shall receive Escrow Shares 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$150,000; provided, however, that after an Agent’s Certificate or Certificates for an aggregate amount exceeding in no event shall Acquiror receive more than 10% of the Damages Threshold has been delivered, shares of Acquiror Common Stock issued at the Synchrologic Indemnified Parties shall be entitled (subject to Closing. For the provisions purposes of this Article X) VIII, in determining whether a misrepresentation, breach or default has occurred in connection with any of the representations, warranties, covenants and agreements given or made by Target in this Agreement, the Target Disclosure Schedule or any exhibit on schedule to receive indemnification or reimbursement in cash equal to this Agreement, and the full amount of any Damages identified arising therefrom, any materiality standard contained in any such Agent’s Certificate representation, warranty, covenant, or Certificatesagreement shall be disregarded.