Common use of Recourse Limitations Clause in Contracts

Recourse Limitations. (a) If the Share Purchase is consummated, recovery from the Indemnity Escrow Fund shall constitute the sole and exclusive source of Indemnifiable Damages against any Indemnifying Party under this Agreement for Indemnifiable Damages, with any further recovery to come from the R&W Insurance Policy, for the matters listed in clauses (i), (ii) and (v) of Section 9.2(a), except with respect to (A) any failure of any of the representations and warranties of the Company contained in Section 2.1 (Organization, Standing, Power and Subsidiaries), Section 2.2 (Capital Structure), Section 2.3 (Authority; Noncontravention) (but with respect to representations and warranties related to non-contravention, solely to the extent that they refer to non-contravention with governing documents), Section 2.10 (Taxes) or Section 2.16 (No Brokers) to be true and correct, or of the Company contained in any certificate delivered to Acquirer pursuant to this Agreement that are within the scope of those covered by the foregoing Sections to be true and correct as aforesaid, (B) any fraud by the Company in connection with this Agreement or the transactions contemplated herein, and (C) any failure of any representation or warranty made by such Company Shareholder to be true and correct ((A), (B) and (C) collectively, the "Special Representations" and together with clauses (iii), (iv), (vi) and (vii) of Section 9.2(a), the "Fundamental Claims"). (b) In the case of Fundamental Claims (a), each Indemnifying Party’s Liability (other than claims against any Company Shareholders for breaches of covenants, representations and warranties made by such Company Shareholder hereunder) shall be limited to such Indemnifying Party’s Pro Rata Share of the amount of any Indemnifiable Damages resulting therefrom; (b) each Indemnifying Party’s Liability shall be limited to the aggregate amount of cash to which such Indemnifying Party is entitled to receive pursuant to Section 1.1; and (c) with respect to Indemnifiable Damages for any failure of any of the representations and warranties of the Company contained in Section 2.10 (Taxes) to be true and correct, or of the Company contained in any certificate delivered to Acquirer pursuant to this Agreement that are within the scope of those covered by the foregoing Section to be true and correct as aforesaid, which were excluded from the coverage of the R&W Insurance Policy (other than such Indemnifiable Damages which were so excluded due to the disclosure of the underlying matter in Schedule 2.10(a) and 2.10(d)(4)-(5), of the Company Disclosure Schedule as to which the indemnification obligations hereunder shall apply to the same extent as all other Fundamental Claims), the Indemnifying Party’s indemnification obligations hereunder in excess of the Indemnity Escrow Fund shall only apply to any Indemnifiable Damages exceeding such Indemnifiable Damages which would have been recoverable under the R&W Insurance Policy had such Indemnifiable Damages not been so excluded from its coverage; provided that in the case of fraud committed by or at the direction of such Indemnifying Party, recourse against such Indemnifying Party shall be without any limitation and may, at the discretion of Acquirer, be made directly against such Indemnifying Party without first seeking recourse against the Indemnity Escrow Fund. For clarity purposes, subject to the terms and limitations set forth in this ARTICLE 9, the Indemnified Persons shall be entitled to recover Indemnifiable Damages for breach of the relevant representations for any matters which are disclosed for informational purposes only on the Company Disclosure Schedule. iii. In the event of breaches of representations and warranties under ARTICLE 3 or in any representations, warranties or covenants in any agreement entered into by such Indemnifying Party in connection with the Transactions, no Indemnifying Party shall be liable for any breach by any other Indemnifying Party. iv. Notwithstanding anything to the contrary contained herein (i) no Indemnifying Party shall have any right of indemnification, contribution or right of advancement from Acquirer, the Company or any other Indemnified Person with respect to any Indemnifiable Damages claimed by any Indemnified Person, (ii) the rights and remedies of the Indemnified Persons after the Closing shall not be limited by (x) any investigation or disclosure made by or on behalf of any Indemnified Person prior to the Closing regarding any failure, breach or other event or circumstance or (y) any waiver of any condition to the Closing related thereto and (iii) the Indemnifying Parties shall not have any right of subrogation against the Company or Acquirer with respect to any indemnification of an Indemnified Person by reason of any of the matters set forth in Section 9.2. v. Subject to other limitations set forth in this Article 9, the Indemnified Persons may only be entitled for Indemnifiable Damages arising out of, resulting from or in connection with the matters listed in clauses (i) and (ii) of Section 9.2(a) (other than claims arising out of, resulting from or in connection with Fundamental Claims or Sections ˝2.9(b)(i)-˝2.9(b)(xxix) and Section ˝2.9(b)(xxxvi) ("IP Representations")), if and insofar as the Indemnifiable Damages payable exceed in an aggregate amount of $1,000,000 (the "Threshold"), in which event, subject to the other conditions and limitations contained herein, the Indemnifying Parties shall be liable to indemnify the Indemnified Persons for all the Indemnifiable Damages including the amount of the Threshold. For clarity, the Threshold shall not apply to claims for Indemnifiable Damages arising out of, resulting from or in connection with any Fundamental Claims or the IP Representations.

Recourse Limitations. (a) a. If the Share Purchase Merger is consummated, recovery from an amount equal to the Indemnity amount of the Escrow Cash deposited in the Escrow Fund by Acquiror pursuant to Section 1.13 shall constitute be the sole and exclusive source of Indemnifiable Damages against any Indemnifying Party cap for recovery by an Indemnified Person pursuant to the indemnity obligations under this Agreement for Indemnifiable Damagesor other agreement, with certificate or instrument executed or delivered pursuant to this Agreement (excluding any further recovery to come from remedies of Acquiror under the R&W Insurance PolicyEmployment Agreements), for the matters listed in clauses except: (i), ) in the case of fraud or intentional misrepresentation made with intention to deceive by any Person; (ii) and (v) in the case of Section 9.2(a), except with respect to (A) any failure of any of any of the representations and warranties of the Company contained in Section 2.1 (Organization, Standing, Power and Subsidiaries), Section 2.2 (Capital StructureCapitalization), Section 2.3 2.4 (AuthorityDue Authorization; Noncontravention) (but with respect to representations and warranties related to non-contravention, solely to the extent that they refer to non-contravention with governing documents), Section 2.10 (Taxes) or Section 2.16 2.15 (No BrokersTax Returns and Payments) (collectively, the “Fundamental Representations”) to be true and correct, or ; (iii) in the case of any breach of any of the Company contained covenants of the Company, except for unintentional breaches of covenants; or (iv) the matters listed in any certificate delivered to Acquirer pursuant to this Agreement that are within clause (vi) of the scope first sentence of those covered by Section 8.1 (the matters set forth in the foregoing Sections to be true and correct as aforesaid, clauses (Bi) any fraud by the Company in connection with through (iv) of this Agreement or the transactions contemplated herein, and (C) any failure of any representation or warranty made by such Company Shareholder to be true and correct ((ASection 8.2(a), (B) and (C) collectively, the "“Special Representations" and together with clauses Matters”). Any claim for indemnification shall be satisfied first from the Escrow Fund. With respect to claims for indemnification regarding Special Matters, after the Escrow Fund has been exhausted (iii), (iv), (vi) and (vii) or otherwise only contains an amount or amounts in respect of Section 9.2(a), the "Fundamental Claims"). (b) In the case of Fundamental Claims (aa pending claim or claims), each Indemnifying Party’s Liability (other than claims against any Company Shareholders for breaches of covenants, representations and warranties made by such Company Shareholder hereunder) Effective Time Holder shall be limited indemnify the Indemnified Persons up to such Indemnifying Partyholder’s Pro Rata Share Percentage of the amount of any Indemnifiable Damages resulting therefrom; (b) each Indemnifying Party’s Liability shall be limited to the aggregate amount of cash to which such Indemnifying Party is entitled to receive pursuant to Section 1.1; and (c) with respect to Indemnifiable Damages for any failure of any of the representations and warranties of the Company contained in Section 2.10 (Taxes) to be true and correct, or of the Company contained in any certificate delivered to Acquirer pursuant to this Agreement that are within the scope of those covered by the foregoing Section to be true and correct as aforesaid, which were excluded from the coverage of the R&W Insurance Policy (other than such Indemnifiable Damages which were so excluded due to the disclosure of the underlying matter in Schedule 2.10(a) and 2.10(d)(4)-(5), of the Company Disclosure Schedule as to which the indemnification obligations hereunder shall apply to the same extent as all other Fundamental Claims), the Indemnifying Party’s indemnification obligations hereunder in excess of the Indemnity Escrow Fund shall only apply to any Indemnifiable Damages exceeding such Indemnifiable Damages which would have been recoverable under the R&W Insurance Policy had such Indemnifiable Damages not been so excluded from its coverage; provided that in the case of fraud committed by or at the direction of such Indemnifying Party, recourse against such Indemnifying Party shall be without any limitation and may, at the discretion of Acquirer, be made directly against such Indemnifying Party without first seeking recourse against the Indemnity Escrow Fund. For clarity purposes, subject to the terms and limitations set forth in this ARTICLE 9, the Indemnified Persons shall be entitled to recover Indemnifiable Damages for breach of the relevant representations for any matters which are disclosed for informational purposes only on the Company Disclosure Schedule. iii. In the event of breaches of representations and warranties under ARTICLE 3 or in any representations, warranties or covenants in any agreement entered into by such Indemnifying Party in connection with the Transactions, no Indemnifying Party shall be liable for any breach by any other Indemnifying Party. iv. Notwithstanding anything to the contrary contained herein (i) no Indemnifying Party shall have any right of indemnification, contribution or right of advancement from Acquirerin this Section 8.2(a), the Company maximum liability of any Effective Time Holder for Indemnifiable Damages under this ARTICLE VIII shall be limited to an amount equal to fifty percent (50%) of the portion of the Total Merger Consideration received by such Effective Time Holder pursuant to this Agreement; provided, that for claims arising out of any fraud or intentional misrepresentation (in each case, made with intention to deceive) by a particular Effective Time Holder, such Effective Time Holder shall be liable for any other Indemnified Person such claim solely with respect to any Indemnifiable Damages claimed by any Indemnified Personsuch Effective Time Holder’s fraud or intentional misrepresentation (in each case, (iimade with intention to deceive) the rights in its entirety, and remedies of the Indemnified Persons after the Closing there shall not be limited by (x) any investigation or disclosure made by or on behalf of any Indemnified Person prior to the Closing regarding any failure, breach or other event or circumstance or (y) any waiver of any condition to the Closing related thereto and (iii) the Indemnifying Parties shall not have any right of subrogation against the Company or Acquirer no cap with respect to any indemnification of an Indemnified Person by reason of any of the matters set forth in Section 9.2such Effective Time Holder on such claims. v. Subject to other limitations set forth in this Article 9, the Indemnified Persons may only be entitled for Indemnifiable Damages arising out of, resulting from or in connection with the matters listed in clauses (i) and (ii) of Section 9.2(a) (other than claims arising out of, resulting from or in connection with Fundamental Claims or Sections ˝2.9(b)(i)-˝2.9(b)(xxix) and Section ˝2.9(b)(xxxvi) ("IP Representations")), if and insofar as the Indemnifiable Damages payable exceed in an aggregate amount of $1,000,000 (the "Threshold"), in which event, subject to the other conditions and limitations contained herein, the Indemnifying Parties shall be liable to indemnify the Indemnified Persons for all the Indemnifiable Damages including the amount of the Threshold. For clarity, the Threshold shall not apply to claims for Indemnifiable Damages arising out of, resulting from or in connection with any Fundamental Claims or the IP Representations.

Recourse Limitations. (a) Notwithstanding anything contained herein to the contrary, no Indemnified Person may make a claim for any cash from the Escrow Fund in respect of any claim for indemnification that is made pursuant to clause (i) and (ii) of the first sentence of Section 8.1 (and that does not involve fraud by any Person) unless and until an Officer’s Certificate (defined below) describing Indemnifiable Damages (other than Indemnifiable Damages in respect of clause (viii) of the first sentence of Section 8.1) in an aggregate amount greater than $50,000 (the “Threshold”) has been delivered, in which case the Indemnified Person may make claims for indemnification and may receive cash from the Escrow Fund for all Indemnifiable Damages (including the amount of the Threshold). (b) No Indemnified Person may make a claim for Indemnifiable Damages in respect of any Indemnifiable Matter (or a series of related claims for Indemnifiable Damages arising out of the same facts, events or circumstances) unless the amount of such claim (or series of related claims) for Indemnifiable Damages is greater than or equal to $5,000. (c) If the Share Purchase Merger is consummated, recovery from an amount equal to the Indemnity amount of the Escrow Cash deposited in the Escrow Fund by Acquiror pursuant to Section 1.10 shall constitute be the sole and exclusive source of Indemnifiable Damages against any Indemnifying Party cap for recovery by an Indemnified Person pursuant to the indemnity obligations under this Agreement for Indemnifiable Damagesor other agreement, with any further recovery certificate or instrument executed or delivered pursuant to come from the R&W Insurance Policy, for the matters listed in clauses this Agreement except: (i), ) in the case of fraud in connection with the Merger by any Person; (ii) and (v) in the case of Section 9.2(a), except with respect to (A) any failure of any of the representations and warranties of the Company contained in Section 2.1 2.2 (Organization, Standing, Power and SubsidiariesCapitalization), Section 2.2 2.4 (Capital Structure), Section 2.3 (AuthorityDue Authorization; Noncontravention) (but with respect to representations and warranties related to nonNon-contravention, solely to the extent that they refer to non-contravention with governing documents), Section 2.10 (Taxes) or Section 2.16 2.15 (No BrokersTax Returns and Payments) (the “Fundamental Representations”) to be true and correct, or ; (iii) in the case of breach of the Company contained post-Closing covenants set forth in any certificate delivered to Acquirer pursuant to this Agreement that are within Sections 6.1 (Expenses), 6.3 (Further Action; Reasonable Efforts), 6.4 (Tax Matters) or 6.6 (Confidentiality) (collectively, the scope “Post-Closing Covenants”); or (iv) the matters listed in clause (vii) of those covered by the first sentence of Section 8.1 (the matters set forth in the foregoing Sections to be true and correct as aforesaid, clauses (Bi) any fraud by the Company in connection with this Agreement or the transactions contemplated herein, and through (C) any failure of any representation or warranty made by such Company Shareholder to be true and correct ((A), (B) and (Civ) collectively, the "“Special Representations" and together with clauses Matters”). Any claim for indemnification shall be satisfied first from the Escrow Fund. With respect to claims for indemnification regarding Special Matters, after the Escrow Fund has been exhausted (iii), (iv), (vi) and (vii) or otherwise only contains an amount or amounts in respect of Section 9.2(a), the "Fundamental Claims"). (b) In the case of Fundamental Claims (aa pending claim or claims), each Indemnifying Party’s Liability (other than claims against any Company Shareholders for breaches of covenants, representations and warranties made by such Company Shareholder hereunder) Effective Time Holder shall be limited indemnify the Indemnified Persons up to such Indemnifying Partyholder’s Pro Rata Share Percentage of the amount of any Indemnifiable Damages resulting therefrom; provided, however, that the maximum liability of any Effective Time Holder (bA) (I) for any failure of any the representations and warranties contained in Section 2.15 (Tax Returns and Payments) or (II) for any breach of any Post-Closing Covenant shall in each Indemnifying Party’s Liability case be limited to 40% of the aggregate cash received by such Effective Time Holder in the Merger pursuant to the applicable subsection of Section 1.9, (B) for fraud by any Effective Time Holder in connection with the Merger shall be uncapped as to that Effective Time Holder and (C) for any other Indemnifiable Damages under this Article VIII shall be limited to the aggregate amount of cash to which received by such Indemnifying Party is entitled to receive Effective Time Holder in the Merger pursuant to Section 1.1; and (c) with respect to Indemnifiable Damages for any failure of any of the representations and warranties of the Company contained in Section 2.10 (Taxes) to be true and correct, or of the Company contained in any certificate delivered to Acquirer pursuant to this Agreement that are within the scope of those covered by the foregoing Section to be true and correct as aforesaid, which were excluded from the coverage of the R&W Insurance Policy (other than such Indemnifiable Damages which were so excluded due to the disclosure of the underlying matter in Schedule 2.10(a) and 2.10(d)(4)-(5), of the Company Disclosure Schedule as to which the indemnification obligations hereunder shall apply to the same extent as all other Fundamental Claims), the Indemnifying Party’s indemnification obligations hereunder in excess of the Indemnity Escrow Fund shall only apply to any Indemnifiable Damages exceeding such Indemnifiable Damages which would have been recoverable under the R&W Insurance Policy had such Indemnifiable Damages not been so excluded from its coverage; provided that in the case of fraud committed by or at the direction of such Indemnifying Party, recourse against such Indemnifying Party shall be without any limitation and may, at the discretion of Acquirer, be made directly against such Indemnifying Party without first seeking recourse against the Indemnity Escrow Fund. For clarity purposes, subject to the terms and limitations set forth in this ARTICLE 9, the Indemnified Persons shall be entitled to recover Indemnifiable Damages for breach of the relevant representations for any matters which are disclosed for informational purposes only on the Company Disclosure Schedule. iii. In the event of breaches of representations and warranties under ARTICLE 3 or in any representations, warranties or covenants in any agreement entered into by such Indemnifying Party in connection with the Transactions, no Indemnifying Party shall be liable for any breach by any other Indemnifying Party. iv. Notwithstanding anything to the contrary contained herein (i) no Indemnifying Party shall have any right of indemnification, contribution or right of advancement from Acquirer, the Company or any other Indemnified Person with respect to any Indemnifiable Damages claimed by any Indemnified Person, (ii) the rights and remedies of the Indemnified Persons after the Closing shall not be limited by (x) any investigation or disclosure made by or on behalf of any Indemnified Person prior to the Closing regarding any failure, breach or other event or circumstance or (y) any waiver of any condition to the Closing related thereto and (iii) the Indemnifying Parties shall not have any right of subrogation against the Company or Acquirer with respect to any indemnification of an Indemnified Person by reason of any of the matters set forth in Section 9.2. v. Subject to other limitations set forth in this Article 9, the Indemnified Persons may only be entitled for Indemnifiable Damages arising out of, resulting from or in connection with the matters listed in clauses (i) and (ii) applicable subsection of Section 9.2(a) (other than claims arising out of, resulting from or in connection with Fundamental Claims or Sections ˝2.9(b)(i)-˝2.9(b)(xxix) and Section ˝2.9(b)(xxxvi) ("IP Representations")), if and insofar as the Indemnifiable Damages payable exceed in an aggregate amount of $1,000,000 (the "Threshold"), in which event, subject to the other conditions and limitations contained herein, the Indemnifying Parties shall be liable to indemnify the Indemnified Persons for all the Indemnifiable Damages including the amount of the Threshold. For clarity, the Threshold shall not apply to claims for Indemnifiable Damages arising out of, resulting from or in connection with any Fundamental Claims or the IP Representations1.9.