Common use of Maximum Recovery Clause in Contracts

Maximum Recovery. The maximum amount that the Indemnified Parties may recover severally from the Rights Holders under this ARTICLE IV shall be limited to the Escrow Amount, except as otherwise expressly set forth in the following proviso and in the last sentence of this Section 4.5, provided, however, that Claims arising out of, or relating to (a) the Special Representations shall be limited to the amount of the Aggregate Merger Consideration, plus the Earnout Payments actually paid or due and payable to the Rights Holders, if any, (b) Section 2.11 (Intellectual Property) shall be limited to an aggregate amount equal to twenty-five percent (25%) of the Aggregate Merger Consideration, which amount is inclusive of the Escrow Amount, plus the Earnout Payments actually paid or due and payable to the Rights Holders, if any, and (c) any Working Capital Shortfall, fraud, willful misconduct or intentional misrepresentation shall not be subject to, and shall not be considered in determining, any limitation of liability. Notwithstanding the foregoing, (i) no Rights Holder shall be liable for any amount of a Loss that may be recovered by an Indemnified Party pursuant to ARTICLE IV in excess of such Rights Holder’s Pro Rata Share (including the amount of any Earnout Payments actually paid or due and payable to such Rights Holder) of such Loss, except as contemplated by clause (ii) hereafter, (ii) the limitations of liability set forth in this ARTICLE IV will not apply to Claims of fraud, willful misconduct or intentional misrepresentation with respect to a Rights Holder that committed the fraud, willful misconduct or intentional misrepresentation, and (iii) the Indemnified Parties shall be required to first exhaust the Escrow Amount prior to seeking further indemnification recourse directly against any Rights Holders, other than with respect to claims for fraud, willful misconduct or intentional misrepresentation made directly against a Rights Holder who committed the fraud, willful misconduct or intentional misrepresentation. Parent shall have the right to set off against any Earnout Payment actually due and payable to the Rights Holders any amounts for which an Indemnified Party is entitled to be indemnified in excess of the Escrow Amount (if, and to the extent that, the Escrow Amount is insufficient to provide any 55 required indemnification payment) as expressly permitted by (1) clauses (a) and (b) of the proviso included in the first sentence of this Section 4.5 or (2) the immediately preceding sentence. Notwithstanding anything herein to the contrary, Losses recovered from the Escrow Account shall be allocated pro rata among Rights Holders that have contributed to the Escrow Account.

Maximum Recovery. The maximum amount that Notwithstanding anything to the Indemnified contrary in this Agreement, if the Purchasing Parties may recover severally from fail to consummate the Rights Holders under Acquisition or are otherwise in breach of this ARTICLE IV Agreement, then the Liability of the Purchasing Parties and any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or assignees with respect to any breach or alleged breach of any representation, warranty, covenant or agreement set forth in this Agreement and any claim, loss, cost, expenses, damage, Liability or obligation relating to this Agreement and the transactions contemplated hereby shall be limited to the Escrow Amount, except as otherwise expressly set forth in the following proviso and in the last sentence of this Section 4.5, provided, however, that Claims arising out of, or relating to (a) the Special Representations shall be limited an amount equal to the amount of the Aggregate Merger ConsiderationPurchaser Termination Fee (it being understood that no person shall have any rights under the Equity Funding Letter (except as expressly provided therein)), plus whether at law or equity, in contract, in tort or otherwise (without prejudice to Seller Parent’s rights under the Earnout Payments actually paid or due and payable to the Rights HoldersLimited Guarantee, if any, (b) Section 2.11 (Intellectual Property) shall be limited to an aggregate amount equal to twenty-five percent (25%) dated as of the Aggregate Merger Considerationdate hereof, which amount is inclusive by Purchaser Guarantor in favor of Seller Parent), except as expressly provided herein, including the right to specific performance in Section 10.09. None of the Escrow AmountPurchasing Parties or any of their respective former, plus current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or assignees shall have any further Liability or obligation relating to or arising out of the Earnout Payments actually paid or due and payable to the Rights HoldersAcquisition, if any, and (c) any Working Capital Shortfall, fraud, willful misconduct or intentional misrepresentation shall not be subject to, and shall not be considered in determiningthis Agreement, any limitation of liabilityRelated Document or the other transactions contemplated hereby or thereby, except as expressly provided herein, including the right to specific performance in Section 10.09. Notwithstanding the foregoing, (i) no Rights Holder following the Closing the indemnification provisions of Article IX shall be liable for any amount of a Loss govern the parties’ rights to monetary damages and the foregoing limitations on damages shall not apply. Each party hereto hereby agrees and acknowledges that may be recovered by an Indemnified Party pursuant to ARTICLE IV in excess of such Rights Holder’s Pro Rata Share (including it specifically intends that the amount of any Earnout Payments actually paid or due and payable to such Rights Holder) of such Loss, except as contemplated by clause (ii) hereafter, (ii) the limitations of liability set forth in this ARTICLE IV other parties hereto will not apply to Claims of fraud, willful misconduct or intentional misrepresentation with respect to a Rights Holder that committed the fraud, willful misconduct or intentional misrepresentation, and (iii) the Indemnified Parties shall be required to first exhaust the Escrow Amount prior to seeking further indemnification recourse directly against any Rights Holders, other than with respect to claims for fraud, willful misconduct or intentional misrepresentation made directly against a Rights Holder who committed the fraud, willful misconduct or intentional misrepresentation. Parent shall have the right to set off against any Earnout Payment actually due specifically enforce this Agreement under the circumstances expressly provided in Section 10.09. Table of Contents ARTICLE IX Survival and payable to the Rights Holders any amounts for which an Indemnified Party is entitled to be indemnified in excess of the Escrow Amount (if, and to the extent that, the Escrow Amount is insufficient to provide any 55 required indemnification payment) as expressly permitted by (1) clauses (a) and (b) of the proviso included in the first sentence of this Section 4.5 or (2) the immediately preceding sentence. Notwithstanding anything herein to the contrary, Losses recovered from the Escrow Account shall be allocated pro rata among Rights Holders that have contributed to the Escrow Account.Indemnification

Maximum Recovery. The maximum amount that the Indemnified Parties may recover severally from the Rights Holders under this ARTICLE IV shall be limited Notwithstanding anything to the Escrow Amount, except as otherwise expressly set forth contrary in the following proviso and in the last sentence of this Section 4.5, provided, however, that Claims arising out of, or relating to (a) the Special Representations shall be limited to the amount of the Aggregate Merger Consideration, plus the Earnout Payments actually paid or due and payable to the Rights Holders, if any, (b) Section 2.11 (Intellectual Property) shall be limited to an aggregate amount equal to twenty-five percent (25%) of the Aggregate Merger Consideration, which amount is inclusive of the Escrow Amount, plus the Earnout Payments actually paid or due and payable to the Rights Holders, if any, and (c) any Working Capital Shortfall, fraud, willful misconduct or intentional misrepresentation shall not be subject to, and shall not be considered in determining, any limitation of liability. Notwithstanding the foregoingAgreement, (i) no Rights Holder (A) in the event that Parent or Merger Sub breaches its respective obligation to effect the Closing pursuant to Section 1.02 hereof and satisfy its obligations under Article II including depositing (or causing to be deposited) with the Paying Agent sufficient funds to make all payments pursuant to Section 2.02 and (B) Parent and Merger Sub fail to effect the Closing and satisfy such obligations because of a failure to receive the proceeds of one or more of the debt financings contemplated by the Debt Financing Commitments or because of their refusal to accept debt financing on terms materially less beneficial to Merger Sub than the terms set forth in one or more of the Debt Financing Commitments (and Parent and Merger Sub are not otherwise in breach of this Agreement, including their respective obligations pursuant to Section 5.11) such that the condition set forth in Section 6.03(b) would not be satisfied, then the Company’s right to terminate this Agreement and receive the Merger Sub Termination Fee from Merger Sub shall be liable the sole and exclusive remedy of the Company and its Affiliates against Parent, Merger Sub and any of their respective former, current and future direct or indirect equity holders, controlling persons, Affiliates, stockholders, directors, officers, employees, agents, members, managers, general or limited partners, assignees or agents for any amount loss or damage suffered as a result of a Loss that may the breach of any representation, warranty, covenant or agreement contained in this Agreement by Parent or Merger Sub and the failure of the Merger to be recovered consummated, and upon payment of such amount, no Person shall have any rights under any Equity Financing Commitments, whether at law or equity, in contract, in tort or otherwise, and none of Parent, Merger Sub or any of their respective former, current and future direct or indirect equity holders, controlling persons, Affiliates, stockholders, directors, officers, employees, agents, members, managers, general or limited partners, assignees or agents shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by an Indemnified Party pursuant this Agreement and (ii) in no event shall Parent, Merger Sub and their respective former, current and future direct or indirect equity holders, controlling persons, Affiliates, stockholders, directors, officers, employees, agents, members, managers, general or limited partners, assignees or agents be subject to ARTICLE IV liability in excess of such Rights Holder’s Pro Rata Share $100,000,000 (including one hundred million dollars) in the amount aggregate for all losses and damages arising from or in connection with breaches by Parent or Merger Sub of any Earnout Payments actually paid or due the representations, warranties, covenants and payable to such Rights Holder) of such Loss, except as contemplated by clause (ii) hereafter, (ii) the limitations of liability set forth agreements contained in this ARTICLE IV will not apply to Claims of fraud, willful misconduct or intentional misrepresentation with respect to a Rights Holder that committed the fraud, willful misconduct or intentional misrepresentation, and (iii) the Indemnified Parties shall be required to first exhaust the Escrow Amount prior to seeking further indemnification recourse directly against any Rights Holders, other than with respect to claims for fraud, willful misconduct or intentional misrepresentation made directly against a Rights Holder who committed the fraud, willful misconduct or intentional misrepresentation. Parent shall have the right to set off against any Earnout Payment actually due and payable to the Rights Holders any amounts for which an Indemnified Party is entitled to be indemnified in excess of the Escrow Amount (if, and to the extent that, the Escrow Amount is insufficient to provide any 55 required indemnification payment) as expressly permitted by (1) clauses (a) and (b) of the proviso included in the first sentence of this Section 4.5 or (2) the immediately preceding sentence. Notwithstanding anything herein to the contrary, Losses recovered from the Escrow Account shall be allocated pro rata among Rights Holders that have contributed to the Escrow AccountAgreement.

Maximum Recovery. The maximum amount that Notwithstanding anything to the Indemnified contrary in this Agreement, if the Purchasing Parties may recover severally from fail to consummate the Rights Holders under Acquisition or are otherwise in breach of this ARTICLE IV Agreement, then the Liability of the Purchasing Parties and any of their respective former, current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or assignees with respect to any breach or alleged breach of any representation, warranty, covenant or agreement set forth in this Agreement and any claim, loss, cost, expenses, damage, Liability or obligation relating to this Agreement and the transactions contemplated hereby shall be limited to the Escrow Amount, except as otherwise expressly set forth in the following proviso and in the last sentence of this Section 4.5, provided, however, that Claims arising out of, or relating to (a) the Special Representations shall be limited an amount equal to the amount of the Aggregate Merger ConsiderationPurchaser Termination Fee (it being understood that no person shall have any rights under the Equity Funding Letter (except as expressly provided therein)), plus whether at law or equity, in contract, in tort or otherwise (without prejudice to Seller Parent’s rights under the Earnout Payments actually paid or due and payable to the Rights HoldersLimited Guarantee, if any, (b) Section 2.11 (Intellectual Property) shall be limited to an aggregate amount equal to twenty-five percent (25%) dated as of the Aggregate Merger Considerationdate hereof, which amount is inclusive by Purchaser Guarantor in favor of Seller Parent), except as expressly provided herein, including the right to specific performance in Section 10.09. None of the Escrow AmountPurchasing Parties or any of their respective former, plus current and future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners or assignees shall have any further Liability or obligation relating to or arising out of the Earnout Payments actually paid or due and payable to the Rights HoldersAcquisition, if any, and (c) any Working Capital Shortfall, fraud, willful misconduct or intentional misrepresentation shall not be subject to, and shall not be considered in determiningthis Agreement, any limitation of liabilityRelated Document or the other transactions contemplated hereby or thereby, except as expressly provided herein, including the right to specific performance in Section 10.09. Notwithstanding the foregoing, (i) no Rights Holder following the Closing the indemnification provisions of Article IX shall be liable for any amount of a Loss govern the parties’ rights to monetary damages and the foregoing limitations on damages shall not apply. Each party hereto hereby agrees and acknowledges that may be recovered by an Indemnified Party pursuant to ARTICLE IV in excess of such Rights Holder’s Pro Rata Share (including it specifically intends that the amount of any Earnout Payments actually paid or due and payable to such Rights Holder) of such Loss, except as contemplated by clause (ii) hereafter, (ii) the limitations of liability set forth in this ARTICLE IV other parties hereto will not apply to Claims of fraud, willful misconduct or intentional misrepresentation with respect to a Rights Holder that committed the fraud, willful misconduct or intentional misrepresentation, and (iii) the Indemnified Parties shall be required to first exhaust the Escrow Amount prior to seeking further indemnification recourse directly against any Rights Holders, other than with respect to claims for fraud, willful misconduct or intentional misrepresentation made directly against a Rights Holder who committed the fraud, willful misconduct or intentional misrepresentation. Parent shall have the right to set off against any Earnout Payment actually due and payable to specifically enforce this Agreement under the Rights Holders any amounts for which an Indemnified Party is entitled to be indemnified circumstances expressly provided in excess Section 10.09. Table of the Escrow Amount (if, and to the extent that, the Escrow Amount is insufficient to provide any 55 required indemnification payment) as expressly permitted by (1) clauses (a) and (b) of the proviso included in the first sentence of this Section 4.5 or (2) the immediately preceding sentence. Notwithstanding anything herein to the contrary, Losses recovered from the Escrow Account shall be allocated pro rata among Rights Holders that have contributed to the Escrow Account.Contents