Common use of Monetary Damages Clause in Contracts

Monetary Damages. In no event shall (A) the Company, its Subsidiaries and each of their respective Affiliates or (B) the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees of each of the Company, its Subsidiaries and each of their respective Affiliates (foregoing in clauses (A) and (B) collectively, the “Company Related Parties”) have the right to seek or obtain money damages or expense reimbursement (whether at law or in equity, in contract, in tort or otherwise) from Parent, Merger Sub or any other Parent Related Party other than the right of the Company to payment of the Parent Termination Fee as set forth in Section 8.4(b). For the avoidance of doubt, in the event this Agreement is terminated in accordance with Section 8.1, the Parent Termination Fee (if payable pursuant to Section 8.4(b)) represents the maximum aggregate Liability of Parent, Merger Sub, and any other Parent Related Party under this Agreement and the transactions and other agreements contemplated hereby. In addition, and notwithstanding anything in this Agreement to the contrary, the Company hereby (A) agrees that no Company Related Party shall have the right to seek or obtain money damages or expense reimbursement (whether at law or in equity, in contract, in tort or otherwise) from any Financing Source and (B) waives any and all claims against the Financing Sources (and agrees not to bring any claim or cause of action) and hereby agrees that in no event shall the Financing Sources have any liability or obligation to the Company or any Company Related Party relating to or arising out of this Agreement, the Financing, the Commitment Letter or the transactions contemplated hereby; provided that, notwithstanding the foregoing, nothing in this Section 9.11(c)(iv) shall in any way limit or modify the rights and obligations of Parent, Merger Sub or the Financing Sources set forth under the Commitment Letter. In addition to the rights of Parent and Merger Sub hereunder, Parent and Merger Sub shall be entitled, at Parent and Merger Sub’s sole election, to settle any claims arising from or relating to this Agreement by agreeing to consummate the Merger in accordance with the terms of this Agreement.

Appears in 2 contracts

Samples: Merger Agreement (Coherent Inc), Merger Agreement (Rofin Sinar Technologies Inc)

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Monetary Damages. In no event shall (A) the Company, its the Company Subsidiaries and each of their respective Affiliates or (B) the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees of each of the Company, its the Company Subsidiaries and each of their respective Affiliates (foregoing in clauses (A) and (B) collectively, the “Company Related Parties”) have the right to seek or obtain money damages or expense reimbursement (whether at law or in equity, in contract, in tort or otherwise) from Parent, Merger Sub Subsidiary, the Guarantors or any other Parent Related Party other than the right of the Company to payment of the Parent Termination Fee as set forth in Section 8.4(b). For 7.4(b) and to enforce its rights under the avoidance of doubt, in the event this Agreement is terminated in accordance with Section 8.1, the Parent Termination Fee (if payable pursuant to Section 8.4(b)) represents the maximum aggregate Liability of Parent, Merger Sub, and any other Parent Related Party under this Agreement and the transactions and other agreements contemplated herebyGuaranties. In addition, and notwithstanding anything in this Agreement to the contrary, the Company hereby (A) agrees that no and each Company Related Party shall have the right to seek or obtain money damages or expense reimbursement (whether at law or in equity, in contract, in tort or otherwise) from any Financing Source and (B) hereby waives any and all claims against the Financing Sources and any of their respective former, current or future directors, officers, employees, agents, general or limited partners, managers, management companies, members, stockholders or equity holders (and agrees not to bring any claim or cause of action) collectively, the “Financing Source Related Parties”), and hereby agrees that in no event shall the Financing Sources Source Related Parties have any liability or obligation to the Company or any Company Related Party relating to or arising out of this Agreement, the Debt Financing, the Debt Commitment Letter or the transactions contemplated hereby; provided that, notwithstanding the foregoing, nothing in this Section 9.11(c)(iv8.12(b)(v) shall in any way limit or modify the rights and obligations of Parent, Merger Sub Subsidiary or the Financing Sources set forth under the Debt Commitment LetterLetters. In addition to the rights of Parent and Merger Sub Subsidiary hereunder, Parent and Merger Sub Subsidiary shall be entitled, at Parent Parent’s and Merger SubSubsidiary’s sole election, to settle any pre-Closing claims arising from against Parent or Merger Subsidiary relating to Parent’s and Merger Subsidiary’s obligations under this Agreement by agreeing to consummate consummating the Closing and the Merger in accordance with the terms of this Agreement.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (SolarWinds, Inc.), Agreement and Plan of Merger (SolarWinds, Inc.)

Monetary Damages. Upon termination of the Agreement pursuant to Section 7.1(h) or Section 7.1(i), in each case in connection with an intentional and willful material breach by Parent or Merger Sub of any representation, warranty, covenant or agreement contained in this Agreement (but subject to the proviso below), the Company Group shall have the right to seek money damages from Parent or Merger Sub under this Agreement; provided, however, that the Company shall have the right to seek both specific performance and monetary damages simultaneously, so long as it may only obtain either specific performance or monetary damages and if monetary damages are so awarded, then the Agreement shall be deemed to have been validly terminated, pursuant to Section 7.1(h) or Section 7.1(i), as applicable. Under no circumstances will the collective monetary damages payable by Parent, Merger Sub or any of their Affiliates for such breaches exceed an amount equal to $2,404,228 in the aggregate for all such breaches (the "Parent Damages Cap"). In no event shall (A) the Company, its Subsidiaries and each of their respective Affiliates or (B) the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees of each member of the Company, its Subsidiaries and each of their respective Affiliates (foregoing in clauses (A) and (B) collectively, the “Company Related Parties”) Group have the right to seek or obtain money damages or expense reimbursement (whether at law or in equity, in contract, in tort or otherwise) from Parent, Merger Sub or any other Parent Related Party other than the right of the Company to payment member of the Parent Termination Fee as set forth Group in Section 8.4(b). For the avoidance of doubtan amount, in the event this Agreement is terminated aggregate, in accordance with Section 8.1, excess of the Parent Termination Fee (if payable pursuant Damages Cap. Other than the obligations of Parent and Merger Sub to Section 8.4(b)) represents the maximum aggregate Liability extent expressly provided in this Agreement, in no event will any member of Parent, Merger Sub, and the Parent Group or any other Person other than Parent Related Party under this Agreement and the transactions and other agreements contemplated hereby. In addition, and notwithstanding anything in this Agreement to the contrary, the Company hereby (A) agrees that no Company Related Party shall Merger Sub have the right to seek or obtain money any liability for monetary damages or expense reimbursement (whether at law or in equity, in contract, in tort or otherwise) from to the Company or any Financing Source other Person relating to or arising out of this Agreement, the Merger or the other transactions contemplated hereby. In addition, notwithstanding anything in this Agreement to the contrary, the Company, each of its Subsidiaries and (B) each other member of the Company Group hereby waives any and all claims against the Financing Sources Lender Parties (and agrees not to bring other than any claim or cause Lender Party which is part of actionParent Group) and hereby agrees that in no event shall the Financing Sources Lender Parties have any liability or obligation to the Company Company, any of its Subsidiaries or any other member of the Company Related Party Group relating to or arising out of this Agreement, the Financing, the Commitment Letter Agreement or the transactions contemplated herebyDebt Financing; provided that, notwithstanding the foregoing, nothing in this Section 9.11(c)(iv8.8(b)(iii) shall in any way limit or modify the rights and obligations of Parent, Merger Sub or the Financing Sources set forth Lender Parties under any Contracts entered into in connection with the Commitment LetterDebt Financing. In addition to the rights of Parent and Merger Sub hereunder, Parent and Merger Sub shall be entitled, at Parent and Merger Sub’s 's sole election, to settle any claims arising from or relating to this Agreement by agreeing to consummate the Merger in accordance with the terms of this Agreement.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Top Image Systems LTD)

Monetary Damages. In no event shall (A) the Company, its Subsidiaries and each of their respective Affiliates or (B) the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees of each of the Company, its Subsidiaries and each of their respective Affiliates (foregoing in clauses (A) and (B) collectively, the “Company Related Parties”) have the right to seek or obtain money damages or expense reimbursement (whether at law or in equity, in contract, in tort or otherwise) from ParentNewco, Merger Sub Sub, the Guarantor, the Equity Financing Source or any other Parent Newco Related Party other than the right of the Company to payment of the Parent Newco Termination Fee as set forth in Section 8.4(b)) and to enforce its rights under the Guaranty. For the avoidance of doubt, in the event this Agreement is terminated in accordance with Section 8.1, the Parent Newco Termination Fee (if payable pursuant to Section 8.4(b)) represents the maximum aggregate Liability of ParentNewco, Merger Sub, the Guarantor and any other Parent Newco Related Party under this Agreement and the transactions and other agreements contemplated hereby. In addition, and notwithstanding anything in this Agreement to the contrary, the Company hereby (A) agrees that no Company Related Party shall have the right to seek or obtain money damages or expense reimbursement (whether at law or in equity, in contract, in tort or otherwise) from any Debt Financing Source and (B) waives any and all claims against the Debt Financing Sources (and agrees not to bring any claim or cause of action) and hereby agrees that in no event shall the Debt Financing Sources have any liability or obligation to the Company or any Company Related Party relating to or arising out of this Agreement, the Debt Financing, the Debt Commitment Letter Letters or the transactions contemplated hereby; provided that, notwithstanding the foregoing, nothing in this Section 9.11(c)(iv9.11(c)(v) shall in any way limit or modify the rights and obligations of ParentNewco, Merger Sub or the Financing Sources set forth under the Debt Commitment LetterLetters. In addition to the rights of Parent Newco and Merger Sub hereunder, Parent Newco and Merger Sub shall be entitled, at Parent Newco and Merger Sub’s sole election, to settle any claims arising from or relating to this Agreement by agreeing to consummate the Merger in accordance with the terms of this Agreement.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Barracuda Networks Inc)

Monetary Damages. In no event shall (A) the Company, its Subsidiaries and each of their respective Affiliates or (B) the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees of each of the Company, its Subsidiaries and each of their respective Affiliates (foregoing in clauses (A) and (B) collectively, the “Company Related Parties”) have the right to seek or obtain money damages or expense reimbursement (whether at law or in equity, in contract, in tort or otherwise) from ParentNewco, Merger Sub Sub, the Guarantor, the Equity Financing Source or any other Parent Newco Related Party other than (i) the right of the Company to payment of the Parent Newco Termination Fee as set forth in Section 8.4(b), (ii) to enforce its rights under the Guaranty, (iii) the right of the Company to reimbursement and indemnification as set forth in Section 7.3(i) or (iv) the rights of the Indemnified Persons set forth in Section 7.11 following the Closing. For the avoidance of doubt, in the event this Agreement is terminated in accordance with Section 8.1, payment of the Parent Newco Termination Fee by Newco or the Guarantor (if payable pursuant to Section 8.4(b)) represents the maximum aggregate Liability of ParentNewco, Merger Sub, the Guarantor and any other Parent Newco Related Party under this Agreement and the transactions and other agreements contemplated herebyhereby (other than the amounts due under Section 7.3(i)). In addition, and notwithstanding anything in this Agreement to the contrary, the Company hereby (A) agrees that no Company Related Party shall have the right to seek or obtain money damages or expense reimbursement (whether at law or in equity, in contract, in tort or otherwise) from any Debt Financing Source and (B) waives any and all claims against the Debt Financing Sources (and agrees not to bring any claim or cause of action) and hereby agrees that in no event shall the Debt Financing Sources have any liability or obligation to the Company or any Company Related Party relating to or arising out of this Agreement, the Debt Financing, the Debt Commitment Letter Letters or the transactions contemplated hereby; provided that, notwithstanding anything to the contrary in the foregoing, nothing in this Section 9.11(c)(iv9.11(c)(v) shall in any way limit or modify the rights and obligations of ParentNewco, Merger Sub or the Debt Financing Sources set forth under the Debt Commitment LetterLetters. In addition to the rights of Parent Newco and Merger Sub hereunder, Parent Newco and Merger Sub shall be entitled, at Parent Newco and Merger Sub’s sole election, to settle any claims arising from or relating to this Agreement by agreeing to consummate the Merger in accordance with the terms of this Agreement.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Imperva Inc)

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Monetary Damages. In no event shall (A) the Company, its Subsidiaries and each of their respective Affiliates or (B) the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees of each of the Company, its Subsidiaries and each of their respective Affiliates (foregoing in clauses (A) and (B) collectively, the “Company Related Parties”) have the right to seek or obtain money damages or expense reimbursement (whether at law or in equity, in contract, in tort or otherwise) from ParentNewco, Merger Sub Sub, the Guarantors, the Equity Financing Sources or any other Parent Newco Related Party other than the right of the Company to payment of the Parent Newco Termination Fee as set forth in Section 8.4(b)) and to enforce its rights under the Guarantees. For the avoidance of doubt, in the event this Agreement is terminated in accordance with Section 8.1, the Parent Newco Termination Fee (if payable pursuant to Section 8.4(b)) represents the maximum aggregate Liability of ParentNewco, Merger Sub, the Guarantors and any other Parent Newco Related Party under this Agreement and the transactions and other agreements contemplated hereby. In addition, and notwithstanding anything in this Agreement to the contrary, the Company hereby (A) agrees that no Company Related Party shall have the right to seek or obtain money damages or expense reimbursement (whether at law or in equity, in contract, in tort or otherwise) from any Debt Financing Source and (B) waives any and all claims against the Debt Financing Sources (and agrees not to bring any claim or cause of action) and hereby agrees that in no event shall the Debt Financing Sources have any liability or obligation to the Company or any Company Related Party relating to or arising out of this Agreement, the Debt Financing, the Debt Commitment Letter Letters or the transactions contemplated hereby; provided that, notwithstanding the foregoing, nothing in this Section 9.11(c)(iv9.11(c)(v) shall in any way limit or modify the rights and obligations of ParentNewco, Merger Sub or the Financing Sources set forth under the Debt Commitment LetterLetters. In addition to the rights of Parent Newco and Merger Sub hereunder, Parent Newco and Merger Sub shall be entitled, at Parent Newco and Merger Sub’s sole election, to settle any claims arising from or relating to this Agreement by agreeing to consummate the Merger in accordance with the terms of this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Riverbed Technology, Inc.)

Monetary Damages. In Other than in the case of actual fraud, in no event shall (A) the Company, its Subsidiaries and each of their respective Affiliates or (B) the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneysRepresentatives, Affiliates, members, managers, general or limited partners, stockholders and assignees of each of the Company, its Subsidiaries and each of their respective Affiliates (foregoing in clauses (A) and (B) collectively, the “Company Related Parties”) have the right to seek or obtain money damages or expense reimbursement (whether at law or in equity, in contract, in tort or otherwise) from Parent, Merger Sub or any other Parent Related Party other than the right of the Company to payment of the Parent Termination Fee as set forth in Section 8.4(b). For the avoidance of doubt, in the event this Agreement is terminated in accordance with Section 8.1, the Parent Termination Fee (if ‎Section 9.3(e) and any amounts payable pursuant to Section 8.4(b9.3(i), the right of the Company to recover any amounts pursuant to ‎Section 7.10(d) represents and, subject to the maximum aggregate Parent Liability Limitation, damages in the event of Parent, Merger Sub, and any other Parent Related Party under this Agreement and the transactions and other agreements contemplated herebya Specified Breach. In addition, and notwithstanding anything in this Agreement to the contrary, the Company and each other Company Party hereby (A) waives any claims against the Financing Sources and hereby agrees that in no Company Related Party event shall the Financing Sources have the right to seek or obtain money damages or expense reimbursement (any liability, whether at law or in equity, in contract, in tort or otherwise) from any Financing Source and (B) waives any and all claims against the Financing Sources (and agrees not to bring any claim or cause of action) and hereby agrees that in no event shall the Financing Sources have any liability , or obligation to the Company or any other Company Related Party relating to or arising out of this Agreement, the Debt Financing, the Debt Commitment Letter or the transactions contemplated herebyhereby and thereby, the termination of this Agreement, the failure to consummate the transactions contemplated by this Agreement or any claims or actions under applicable Laws arising out of any such breach, termination or failure; provided that, notwithstanding the foregoing, nothing in this Section 9.11(c)(iv10.7(b)(v) shall in any way limit or modify the rights and obligations of Parent, Merger Sub or the Financing Sources set forth under the Debt Commitment Letter. In addition to the rights of Parent and Merger Sub hereunder, Parent and Merger Sub shall be entitled, at Parent and Merger Sub’s sole election, to settle any claims arising from for the Parent Termination Fee or relating to this Agreement damages in respect of Specified Breaches by agreeing to consummate the Merger in accordance with the terms of this Agreement. For the avoidance of doubt, no Financing Source shall be subject to any special, consequential, or punitive damages or damages of a tortious nature. The Financing Sources are intended third party beneficiaries of this Section 10.7.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Attunity LTD)

Monetary Damages. In Subject to the rights contemplated by Section 6.7, except in the case of fraud or any Willful Breach, in no event shall (A) the Company, its Subsidiaries and each of their respective Affiliates or (B) the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees of each member of the Company, its Subsidiaries and each of their respective Affiliates (foregoing in clauses (A) and (B) collectively, the “Company Related Parties”) Group have the right to seek or obtain money damages or expense reimbursement (whether at law or in equity, in contract, in tort or otherwise) from Parent, Merger Sub or Sub, the Sponsor, any other Parent Related Party other than the right of the Company to payment member of the Parent Termination Fee as set forth in Section 8.4(b). For the avoidance of doubtGroup or any financing source under this Agreement and, except in the event case of fraud or any Willful Breach, the Company Group’s sole remedy for breaches or alleged breaches of this Agreement is terminated by Parent or Merger Sub shall be the Company’s right to (A) terminate this Agreement in accordance with Section 8.1, or (B) seek the Parent Termination Fee (if payable pursuant remedy of specific performance solely to the extent and in accordance with the express terms of Section 8.4(b9.7(b)(i) and Section 9.7(b)(ii)) represents . In the event of any Willful Breach, the maximum aggregate Liability monetary liability of Parent, Merger Sub, and Sponsor or any other member of the Parent Related Party under this Agreement and Group in respect of such Willful Breach (including for any loss suffered or the failure of the transactions and other agreements contemplated hereby. In additionhereby to be consummated, and notwithstanding anything in this Agreement to the contrary, the Company hereby (A) agrees that no Company Related Party shall have the right to seek or obtain money damages or expense reimbursement (whether at law or in equityrespect of any oral representation made or alleged to have been made in connection herewith), whether in equity or at Law, in contract, in tort or otherwise) from any Financing Source , shall be limited to the Cap, and (B) waives any and all claims against the Financing Sources (and agrees not to bring any claim or cause of action) and hereby agrees that in no event shall any member of the Financing Sources Company Group seek to recover any money damages in excess of such amount or any damages in respect of any consequential, punitive, special, incidental, or indirect damages or losses, including business interruption, loss of future revenue, diminution in value, profits or income, or loss of business reputation or opportunity. Notwithstanding anything to the contrary herein and for the avoidance of doubt, under no circumstances will Parent, Merger Sub, Sponsor or any other member of the Parent Group have any liability or obligation to for monetary damages in respect of any such Willful Breach unless and until the Company or any Company Related Party relating to or arising out valid termination of this Agreement, the Financing, the Commitment Letter or the transactions contemplated hereby; provided that, notwithstanding the foregoing, nothing in this Section 9.11(c)(iv) shall in any way limit or modify the rights and obligations of Parent, Merger Sub or the Financing Sources set forth under the Commitment Letter. In addition to the rights of Parent and Merger Sub hereunder, Parent and Merger Sub shall be entitled, at Parent and Merger Sub’s sole election, to settle any claims arising from or relating to this Agreement by agreeing to consummate the Merger in accordance with the terms of this AgreementArticle VIII.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Cobra Electronics Corp)

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