Common use of Liability Limits Clause in Contracts

Liability Limits. Notwithstanding anything to the contrary set forth in this Agreement, the KHC Indemnified Parties shall not make a claim against the Company or the Company Shareholders for indemnification under this Article VI or for a breach of any representation, warranty or covenant under this Agreement, unless and until the aggregate costs and damages incurred by all KHC Indemnified Parties exceed one hundred fifty thousand dollars ($150,000) (the "Floor"), in which event the KHC Indemnified Parties may claim indemnification for any costs and damages in excess of the Floor. However, the Floor shall not apply to any losses arising out of any of the following: (a) any claim asserted against the KHC Indemnified Parties by or on behalf of Angela Powers; (b) any fraud by the Company Shareholders; (c) any Comxxxx xxx xxxxgation other than the obligation to pay state sales taxes; or (d) any failure to retain, as of Closing, Net Working Capital in an amount less than $3,650,000 (the "Excepted Claims"). With respect to the Excepted Claims, the KHC Indemnified Parties may assert a claim against the Company or Company Shareholders and seek indemnification without regard to the Floor. In no event will the Company and Company Shareholders be required to indemnify KHC Indemnified Parties under this Article VI or be liable to any KHC Indemnified Party for breach of any representation, warranty or covenant under this Agreement, for costs and damages in excess of Seven Million Dollars ($7,000,000). The Parties acknowledge and agree that the foregoing indemnification provisions in this Article 6, shall be the exclusive remedy of the KHC Indemnified Parties against the Company and Company Shareholders for contractual indemnity or breach of this Agreement. The KHC Indemnified Parties further acknowledge that this agreement establishing an exclusive contractual remedy was a material inducement to Company Shareholders in entering into this Agreement.

Liability Limits. Notwithstanding anything to the contrary set forth in this Agreement, herein: Neither Corporation nor the KHC Indemnified Parties Shareholder shall not make a claim against the Company or the Company Shareholders be liable to Purchaser for indemnification under this Article VI or for a breach of any representation, warranty or covenant under this Agreement, unless and Losses arising hereunder until the aggregate costs and damages of such Losses incurred by all KHC Indemnified Parties Purchaser exceed one hundred fifty thousand dollars ($150,000) 75,000 (the "FloorSeller Basket Amount"), in which event ; and then Corporation and the KHC Indemnified Parties may claim indemnification Shareholder shall be liable for any costs and damages all such Losses (not just the amount in excess of the Floor. However$75,000); provided, the Floor however, that Losses arising under or pursuant to Section 9.01(a)(ii), Losses relating to any breach of Section 2.02 and Losses based on fraud shall not apply be subject to any losses arising out the Seller Basket Amount, and the amount of any such Losses shall not be included with other Losses in determining whether the Seller Basket Amount has been reached. Purchaser shall not be liable to Seller for any Losses arising hereunder until the aggregate of the following: (a) any claim asserted against the KHC Indemnified Parties such Losses incurred by or on behalf of Angela Powers; (b) any fraud by the Company Shareholders; (c) any Comxxxx xxx xxxxgation other than the obligation to pay state sales taxes; or (d) any failure to retain, as of Closing, Net Working Capital in an amount less than Seller exceed $3,650,000 75,000 (the "Excepted ClaimsPurchaser Basket Amount"). With respect to the Excepted Claims, the KHC Indemnified Parties may assert a claim against the Company or Company Shareholders ) and seek indemnification without regard to the Floor. In no event will the Company and Company Shareholders be required to indemnify KHC Indemnified Parties under this Article VI or then Purchaser shall be liable to any KHC Indemnified Party for breach of any representation, warranty or covenant under this Agreement, for costs and damages all such Seller Losses (not just the amount in excess of Seven Million Dollars ($7,000,00075,000). The Parties acknowledge ; provided, however, that Losses arising under or pursuant to Section 9.01(b)(ii) of this Agreement and agree Losses based on fraud shall not be subject to the Purchaser Basket Amount, and that the foregoing amount of any such Losses shall not be included with other Losses in determining whether the Purchaser Basket Amount has been reached. Except for Losses based on fraud (with respect to which there will be no limitation), the aggregate indemnification provisions obligation of Corporation and the Shareholder hereunder shall not exceed, in this Article 6the aggregate, an amount equal to the Purchase Price (the "Seller Cap Amount"); provided, however, that neither Losses arising under or pursuant to Section 9.01(a)(ii) nor Losses relating to any breach of Sections 2.02, 2.11, or 2.14(d)-(j) shall be subject to the exclusive remedy Seller Cap Amount and there shall be no limitation on the indemnification obligations of Corporation and the Shareholder with respect to such Losses. Except for Losses based on fraud (with respect to which there will be no limitation), Purchaser's indemnification obligations hereunder shall not exceed, in the aggregate, an amount equal to the Purchase Price (the "Purchaser Cap Amount"); provided, however, that Losses arising under or pursuant to Section 9.01(b)(ii) of this Agreement shall not be subject to the Purchaser Cap Amount and there shall be no limitation on the indemnification obligations of Purchaser with respect to Losses arising under or pursuant to such provision. Escrow Agreement. As security for the indemnification obligations of Seller hereunder, the Escrowed Amount will be placed in escrow with the Escrow Agent pursuant to the terms of the KHC Indemnified Parties against the Company and Company Shareholders for contractual indemnity or breach of this Escrow Agreement. The KHC Indemnified Parties further acknowledge that this agreement establishing an exclusive contractual remedy was a material inducement to Company Shareholders in entering into this Agreement.DEFINITIONS

Liability Limits. Notwithstanding anything to the contrary set forth in this Agreementherein, the KHC Purchaser Indemnified Parties shall not make a claim against the Company or the Company Shareholders Seller for indemnification under this Article VI or Section 9 for a breach of any representation, warranty or covenant under this Agreement, Purchaser Losses unless and until the aggregate costs and damages incurred by amount of such Purchaser Losses (excluding all KHC Indemnified Parties Purchaser Losses in respect of any single claim which do not exceed one hundred fifty thousand dollars ($150,000) US$100,000, for which no claim for indemnification may be made (the "Floor"“Threshold Amount”)) exceeds US$10,000,000 (the “Purchaser Basket”), in which event the KHC Purchaser Indemnified Parties may claim indemnification for any costs and damages only with respect to the amount of such Purchaser Losses in excess of the FloorPurchaser Basket. HoweverThe total aggregate liability, other than Excluded Liabilities pursuant to Section 1.4(j), of the Floor Seller for Purchaser Losses with respect to any and all claims made pursuant to Section 9 shall be limited to US$137,500,000 (the “Indemnity Cap”). Notwithstanding anything to the contrary set forth herein, (i) the Threshold Amount and the Purchaser Basket shall not apply to the Seller’s indemnification obligations (x) based on Section 9.1(c) or (y) arising out of a breach of Section 5.16; (ii) the Indemnity Cap shall not apply to the Seller’s indemnification obligations arising out of (x) any losses arising of the Excluded Liabilities falling under clauses (b) through (i) and clauses (k) through (p) of Section 1.4 or (y) a breach of Section 2.1(b), Section 2.3(b), Section 5.9 or Section 5.13; and (iii) the total aggregate liability of the Seller for Purchaser Losses with respect to any and all claims made pursuant to Section 9 that arise out of any of the following: Excluded Liabilities falling under clause (aj) any claim asserted against the KHC Indemnified Parties by or on behalf of Angela Powers; (b) any fraud by the Company Shareholders; (c) any Comxxxx xxx xxxxgation other than the obligation to pay state sales taxes; or (d) any failure to retain, as of Closing, Net Working Capital in an amount less than $3,650,000 (the "Excepted Claims"). With respect to the Excepted Claims, the KHC Indemnified Parties may assert a claim against the Company or Company Shareholders and seek indemnification without regard to the Floor. In no event will the Company and Company Shareholders be required to indemnify KHC Indemnified Parties under this Article VI or be liable to any KHC Indemnified Party for breach of any representation, warranty or covenant under this Agreement, for costs and damages in excess of Seven Million Dollars ($7,000,000). The Parties acknowledge and agree that the foregoing indemnification provisions in this Article 6, Section 1.4 shall be the exclusive remedy of the KHC Indemnified Parties against the Company and Company Shareholders for contractual limited to a separate indemnity or breach of this Agreement. The KHC Indemnified Parties further acknowledge that this agreement establishing an exclusive contractual remedy was a material inducement cap equal to Company Shareholders in entering into this AgreementUS$68,750,000.

Liability Limits. (a) Notwithstanding anything to the contrary set forth in this Agreement, except with respect to the KHC Extended Representations and Fundamental Representations (to which subclauses (i) and (ii) of this Section 9.5(a) shall not apply), (i) the Parent Indemnified Parties shall not make a claim against the Company Stockholders or the Company Shareholders Optionholders for indemnification under this Article VI or Section 9.1(a) hereof for a breach of any representation, warranty or covenant under this Agreement, Parent Losses unless and until the aggregate costs amount of Parent Losses under Section 9.1(a) hereof exceeds $815,500 (the “Parent Threshold”), and damages incurred by all KHC if such Parent Losses exceed the Parent Threshold, the Parent Indemnified Parties shall be entitled to the entire amount of all such Parent Losses, subject to the other provisions of this Agreement; and (ii) the right of the Parent Indemnified Parties to recover for any Parent Losses pursuant to Section 9.1(a) hereof shall not exceed one hundred fifty thousand dollars ($150,000) 24,375,000.00 (the "Floor"“Cap”). Notwithstanding the foregoing, in which event the KHC Parent Indemnified Parties may claim indemnification for any costs shall be entitled to recover for, and damages in excess of the Floor. However, Parent Threshold and the Floor Cap shall not apply to any losses arising out Parent Losses with respect to any breach of or inaccuracy in any of the following: (a) Extended Representations or Fundamental Representations or any claim asserted against the KHC Indemnified Parties by or on behalf of Angela Powers; (b) any fraud by the Company Shareholders; (c) any Comxxxx xxx xxxxgation other than the obligation to pay state sales taxes; or (d) any failure to retain, as of Closing, Net Working Capital in an amount less than $3,650,000 (the "Excepted Claims"). With respect to the Excepted Claims, the KHC Indemnified Parties may assert a claim against the Company Stockholders or Company Shareholders Optionholders for indemnification under any of the provisions of Section 9.1 other than Section 9.1(a); provided, however, that (x) the aggregate liability of the Stockholders and seek indemnification without regard to Optionholders under this Agreement (including for the Floor. In avoidance of doubt Section 10.6), any Ancillary Agreement or any other agreements, certificates or other instruments executed and delivered connection with this Agreement or the transactions contemplated hereby, shall not exceed the Aggregate Merger Consideration, and in no event will shall any Stockholder or Optionholder be liable for any amount in respect of Parent Losses in excess of the Company and Company Shareholders Aggregate Merger Consideration proceeds actually received by such Stockholder or Optionholder, (y) no individual Stockholder or Optionholder shall be required to indemnify KHC Indemnified Parties liable for any amount in excess of such Stockholder’s or Optionholder’s Allocation Percentage of any particular Parent Loss under this Article VI Agreement (including for the avoidance of doubt Section 10.6), any Ancillary Agreement or any other agreements, certificates or other instruments executed and delivered in connection with this Agreement or the transactions contemplated hereby, and (z) no Stockholder or Optionholder shall be liable to any KHC Parent Indemnified Party Party: (A) for the breach by any other Stockholder or Optionholder of any representationthe representations, warranty warranties, covenants and agreements of such other Stockholder or covenant under Optionholder set forth in this Agreement, any Ancillary Agreement (or any other agreements, certificates or other instruments executed and delivered connection with this Agreement or the transactions contemplated hereby), including, for costs the avoidance of doubt, any failure by any such other Stockholder or Optionholder to comply with its obligations under Section 6.15 hereof, (B) if any representations, warranties, covenants and damages in excess of Seven Million Dollars ($7,000,000). The Parties acknowledge and agree that the foregoing indemnification provisions agreements made by any other Stockholder or Optionholder in this Article 6Agreement, any Ancillary Agreement (or any other agreements, certificates or other instruments executed and delivered connection with this Agreement or the transactions contemplated hereby) are ultimately determined to be unenforceable against such other Stockholder or Optionholder, or if any such agreements, certificates or other instruments (including any Letter of Transmittal) are ultimately determined not to comply with any applicable Laws, or (C) fraud by any other Person (in which case a claim for actual fraud may be asserted solely against the Person who committed such actual fraud and no other Stockholder or Optionholder shall be liable for the exclusive remedy actual fraud committed by such other Person), and notwithstanding anything to contrary in this Agreement (including Section 9.5(b)), any claim for indemnification with respect to breaches of any representations, warranties, covenants and agreements made by a particular Stockholder or Optionholder in this Agreement, any Ancillary Agreement (or any other agreements, certificates or other instruments executed and delivered connection with this Agreement or the KHC transactions contemplated hereby), or with respect to any alleged actual fraud committed by a particular Stockholder or Optionholder, must be asserted by the Parent Indemnified Parties directly against such particular Stockholder or Optionholder directly, and not against the Company and Company Shareholders for contractual indemnity or breach of this Agreement. The KHC Indemnified Parties further acknowledge that this agreement establishing an exclusive contractual remedy was a material inducement to Company Shareholders in entering into this AgreementEscrow Fund.

Liability Limits. Notwithstanding anything (a) Subject to the contrary set forth in this AgreementSection 10.9, the KHC Indemnified Parties Seller Parties, in the aggregate shall not make a claim against the Company or the Company Shareholders for indemnification be liable under this Article VI or X for a breach of any representation, warranty or covenant under this Agreement, Purchaser Losses unless and until the aggregate costs and damages incurred by all KHC Indemnified Parties exceed one hundred fifty thousand dollars (amount of such Purchaser Losses exceeds $150,000) 100,000 (the "Floor"“Basket”), in which event the KHC Indemnified Seller Parties may claim indemnification shall be liable for any costs and damages all Purchaser Losses in excess of the Floor. Howeveramount of the Basket, up to an amount not to exceed $1,000,000 (the “Cap”); provided, however, the Floor Surviving Obligations and the Seller Parties’ obligations under Sections 10.1(b)-(e) shall not be subject to, or apply toward satisfaction of, the Basket or the Cap. Subject to any losses arising out Section 10.9, the Seller Parties shall be liable for all Purchaser Losses with respect to a breach or inaccuracy of any of Surviving Obligation up to an amount not to exceed $3,000,000 (the following: (a“Surviving Obligations Cap”); provided, however, the Seller Parties’ obligations under Sections 10.1(b)-(e) any claim asserted against shall not be subject to, or apply toward satisfaction of, the KHC Indemnified Parties by or on behalf of Angela Powers; (bSurviving Obligations Cap. The Xxxxxxxxx Family Trust and Xxxxxxxxx shall not be liable under this Article X for Purchaser Losses under Section 10.1(a) any fraud by the Company Shareholders; (c) any Comxxxx xxx xxxxgation other than the obligation to pay state sales taxes; or (d) any failure to retain, as of Closing, Net Working Capital in an amount less of more than $3,650,000 (the "Excepted Claims"). With respect to portion of the Excepted ClaimsTotal Consideration actually received by the Xxxxxxxxx Family Trust as a stockholder of the Seller in the aggregate, and the KHC Indemnified Parties may assert a claim against the Company or Company Shareholders Xxxxxxxxx Family Trust and seek indemnification without regard to the Floor. In no event will the Company and Company Shareholders Xxxxxxxxx shall not be required to indemnify KHC Indemnified Parties liable under this Article VI X for Purchaser Losses under Section 10.1(a) in an amount of more than the portion of the Total Consideration actually received by the Xxxxxxxxx Family Trust as a stockholder of the Seller in the aggregate. For any Purchaser Losses for which the Purchaser Indemnified Parties seek to recover from the Xxxxxxxxx Family Trust or Xxxxxxxxx the Purchase Indemnified Parties shall use commercially reasonable efforts to obtain settlement or recovery from the Xxxxxxxxx Family Trust prior to seeking recovery directly from Xxxxxxxxx, and for any Purchaser Losses for which the Purchaser Indemnified Parties seek to recover from the Xxxxxxxxx Family Trust or Xxxxxxxxx the Purchase Indemnified Parties shall use commercially reasonable efforts to obtain settlement or recovery from the Xxxxxx Family Trust prior to seeking recovery directly from Xxxxxxxxx; provided, however, that the recovery priority established by this sentence shall not be liable to construed as requiring that any KHC Purchaser Indemnified Party for breach of any representation, warranty Parties exhaust remedies or covenant otherwise incur material additional costs or delays in seeking recovery under this Agreement, for costs and damages in excess of Seven Million Dollars ($7,000,000). The Parties acknowledge and agree that the foregoing indemnification provisions in this Article 6, shall be the exclusive remedy of the KHC Indemnified Parties X before proceeding directly against the Company and Company Shareholders for contractual indemnity Xxxxxxxxx or breach of this Agreement. The KHC Indemnified Parties further acknowledge that this agreement establishing an exclusive contractual remedy was a material inducement to Company Shareholders in entering into this AgreementXxxxxxxxx.