Common use of Additional Limitations on Indemnification Clause in Contracts

Additional Limitations on Indemnification. With respect to indemnification by the Company or the Investors, (a) the Company and each Investor shall not be liable, as applicable, under this Article VI until the aggregate amount of all claims against the Company or such Investor, as applicable, in respect of indemnification under this Article VI, other than with respect to indemnification for breach of any Fundamental Representation or a breach of the representations set forth in Section 3.16 (Taxes), exceeds $4,257,365.13 (the “Threshold Amount”), in which event the Company or such Investor, as applicable, shall only be liable for claims in excess of the Threshold Amount, (b) the Company and each Investor shall not be liable, as applicable, under this Article VI, except with respect to indemnification for breach of any Fundamental Representation or a breach of the representations set forth in Section 3.16 (Taxes), for any individual or series of related costs, losses, liabilities, damages or expenses which do not exceed $100,000 (which costs, losses, liabilities, damages or expenses shall not be counted toward the Threshold Amount) and (c) the Company’s and the Investors’ maximum aggregate liability, as applicable, under this Article VI, other than with respect to indemnification for breach of any Fundamental Representation, shall be limited to $42,573,651.27; provided, however, each Investor will be entitled to its pro rata portion of any indemnification provided by the Company under this Article VI, based on the percentage of Purchased Securities purchased by such Investor and provided further that in no event will any Investor ever be liable for more than the amount of net proceeds received by such Investor under the Acquisition Agreement. Notwithstanding anything to the contrary contained herein, any damages otherwise indemnifiable under this Article VI shall be reduced by the amount of insurance proceeds actually recovered by a Company Related Party or Investor Related Party, as applicable, in respect of such damages (net of costs of collection, deductibles and retro-premium adjustments). Damages shall be determined without duplication of recovery by reason of the state of facts giving rise to such damages constituting a breach of more than one representation, warranty, covenant or agreement. Each of the parties acknowledges that indemnification obligations under this Agreement and the Acquisition Agreement may overlap, and agree that any such overlapping claim for indemnification may be made under this Agreement or the Acquisition Agreement; provided, however, that any claim for indemnity made against an indemnifying party which may be brought under Article VIII shall be brought under Section 8.07. No party may obtain duplicative indemnification or other recovery under this Agreement and the Acquisition Agreement.

Additional Limitations on Indemnification. With respect to indemnification by the Company or the Investors, (a) the Company and each Investor shall not be liable, as applicable, under this Article VI until the aggregate amount of all claims against the Company or such Investor, as applicable, in respect of indemnification under this Article VI, other than with respect to indemnification for breach of any Fundamental Representation or a breach of the representations set forth in Section 3.16 (Taxes), exceeds $4,257,365.13 5,742,634.87 (the “Threshold Amount”), in which event the Company or such Investor, as applicable, shall only be liable for claims in excess of the Threshold Amount, (b) the Company and each Investor shall not be liable, as applicable, under this Article VI, except with respect to indemnification for breach of any Fundamental Representation or a breach of the representations set forth in Section 3.16 (Taxes), for any individual or series of related costs, losses, liabilities, damages or expenses which do not exceed $100,000 (which costs, losses, liabilities, damages or expenses shall not be counted toward the Threshold Amount) and (c) the Company’s and the Investors’ maximum aggregate liability, as applicable, under this Article VI, other than with respect to indemnification for breach of any Fundamental Representation, shall be limited to $42,573,651.2757,426,348.73; provided, however, each Investor will be entitled to its pro rata portion of any indemnification provided by the Company under this Article VI, based on the percentage of Purchased Securities purchased by such Investor and provided further that in no event will any Investor ever be liable for more than the amount of net proceeds received by such Investor under the Acquisition Agreement. Notwithstanding anything to the contrary contained herein, any damages otherwise indemnifiable under this Article VI shall be reduced by the amount of insurance proceeds actually recovered by a Company Related Party or Investor Related Party, as applicable, in respect of such damages (net of costs of collection, deductibles and retro-premium adjustments). Damages shall be determined without duplication of recovery by reason of the state of facts giving rise to such damages constituting a breach of more than one representation, warranty, covenant or agreement. Each of the parties acknowledges that indemnification obligations under this Agreement and the Acquisition Agreement may overlap, and agree that any such overlapping claim for indemnification may be made under this Agreement or the Acquisition Agreement; provided, however, that any claim for indemnity made against an indemnifying party which may be brought under Article VIII shall be brought under Section 8.07. No party may obtain duplicative indemnification or other recovery under this Agreement and the Acquisition Agreement.

Additional Limitations on Indemnification. With respect to indemnification by the Company or the Investors, Notwithstanding any other provision of this Agreement: (a) the Company Individual Claim Threshold; Deductible; Cap (i) No Purchaser Indemnified Party shall make an indemnity claim under Section 9.2 with respect to any individual occurrence unless and each Investor shall not be liable, as applicable, under this Article VI until the aggregate amount of all claims against Losses suffered by the Company Purchaser Indemnified Parties arising from such occurrence exceeds or may reasonably be expected to exceed $15,000. (ii) No Purchaser Indemnified Party shall be entitled to indemnification under Sections 9.2(a)(i), 9.2(b)(i), or 9.2(b)(v) unless the Purchaser Indemnified Parties (collectively) have suffered or incurred Losses under such Investor, as applicable, Sections aggregating to an amount in excess of $1,000,000 (the “Deductible”) whereupon the Purchaser Indemnified Parties shall be entitled to claim indemnification only for the amount of such Losses in excess of the Deductible (subject to the other applicable limitations set forth herein); provided that the Deductible shall not apply to any Losses in respect of either, (A) any inaccuracy in or breach of any Fundamental Representation or Tax Representation or (B) intentional fraud. (iii) The Sellers shall not have any liability with respect to the Special Indemnity Matters for any amount in excess of $18,500,000, provided to the extent the source of liability is the Special Indemnity Matters described in Section 9.2(b)(v), such maximum amount shall be increased to $23,500,000, in either case in the aggregate (which applicable amount includes, for the avoidance of doubt, the payment to Purchaser Indemnified Parties in full of the Indemnity Escrow Amount). (b) Sole Recourse to Indemnity Escrow Account and R&W Policy; Exceptions. (i) Other than with respect to inaccuracies in or breaches of Fundamental Representations and Tax Representations, or the intentional fraud of the Sellers or the Company (collectively, the “Excluded Claims”), the right of the Purchaser Indemnified Parties to seek indemnification from the Sellers pursuant to Sections 9.2(a)(i) or 9.2(b)(i) shall be limited to, and any indemnification obligations under this Article VIsuch Section shall be satisfied exclusively from, the Indemnity Escrow Account. The Purchaser Parties agree and acknowledge that, after the Closing, other than with respect to Excluded Claims, (A) the Purchaser Indemnified Parties shall be entitled to indemnification for breach of under this Agreement pursuant to Sections 9.2(a)(i) and 9.2(b)(i), exclusively from the Indemnity Escrow Account and from the insurer pursuant to the R&W Policy and from no other source or Person; and (B) no Purchaser Indemnified Party shall seek any Fundamental Representation recovery from any source or a breach Person other than the Indemnity Escrow Account and the insurer under the R&W Policy, except as contemplated by Section 9.6(d)(i). (ii) With respect to Excluded Claims (other than the Special Indemnity Matters that are excluded from coverage under the terms of the representations set forth in R&W Policy) and claims arising under Section 3.16 (Taxes9.2(b)(ii), the Purchaser Indemnified Parties shall be required to seek recovery under this Agreement, subject to any other applicable limitations under this Article IX, (A) first from the Indemnity Escrow Account pursuant to the Escrow Agreement and (B) second from the insurer under the R&W Policy, and from no other source or Person (except as contemplated by Section 9.6(b)(v) and Section 9.6(d)(i)), except that: The Purchaser Indemnified Parties may pursue recovery for Excluded Claims and claims under Section 9.2(b)(ii) (in each case, other than the Special Indemnity Matters that are excluded from coverage under the terms of the R&W Policy) directly against the Sellers, subject to the other applicable limitations under this Article IX, only to the extent that the Indemnity Escrow Amount is not available to satisfy such Excluded Claim or claim under Section 9.2(b)(ii) and either: (A) the $20,000,000 policy limit under the R&W Policy has been exceeded and the Purchaser Indemnified Parties have suffered Losses with respect to Excluded Claims other than the Special Indemnity Matters in an amount that exceeds such policy limit by more than $4,257,365.13 5,000,000 (the “Threshold AmountExcluded Claims Deductible”), in which event case the Company or such Investor, as applicable, Purchaser Indemnified Parties shall only be liable entitled to pursue recovery for claims such Losses in excess of the Threshold Amountsum of the policy limit and the Excluded Claims Deductible (which sum, for avoidance of doubt, equals $25,000,000); or (bB) coverage has been denied under the Company and each Investor shall not be liableR&W Policy (other than as a result of Purchaser’s fraud or gross negligence), as applicablePurchaser has used commercially reasonable efforts to recover under the R&W Policy for a period of at least 120 days after receiving notice of such denial, and, if requested by the Seller Representative, Purchaser assigns (to the extent assignable) to the Seller Representative the right to continue to pursue coverage under this Article VI, except the R&W Policy with respect to indemnification the underlying claim. (iii) With respect to Excluded Claims and claims under Section 9.2(b)(ii), for breach of which the Purchaser Indemnified Parties may pursue recovery from the Sellers pursuant to Section 9.6(b)(ii), the Sellers shall not have aggregate liability for any Fundamental Representation or a breach amount in excess of the representations amount of the Final Base Purchase Price paid by Purchaser to the Sellers. In addition, except to the extent set forth in Section 3.16 (Taxes9.6(b)(v), each Seller (individually) shall not have any liability under this Agreement for (A) the obligations of any other Seller hereunder for any individual reason, or series (B) any amount in excess of related coststhe portion of the Final Base Purchase Price paid by Purchaser to such Seller. (iv) With respect to all claims under Section 9.2(b) (including the Special Indemnity Matters), lossesthe Purchaser Indemnified Parties shall be required to seek recovery, liabilities, damages or expenses which do not exceed $100,000 (which costs, losses, liabilities, damages or expenses shall not be counted toward the Threshold Amount) and (c) the Company’s and the Investors’ maximum aggregate liability, as applicable, subject to any other limitations under this Article VIIX, first from the Indemnity Escrow Account. If and only to the extent the Indemnity Escrow Account has been exhausted or disbursed, the Purchaser Indemnified Parties may thereafter pursue recovery for the Special Indemnity Matters directly against the Sellers, subject to the other than applicable limitations under this Article IX (including Section 9.6(a)(iii)). (v) With respect to claims of the Purchaser Indemnified Parties pursuant to Section 9.2(b) that are satisfied from the Indemnity Escrow Account, the liability of the Sellers shall be joint and several. With respect to claims pursuant to Section 9.2(b) for which the Purchaser Indemnified Parties may pursue recovery from the Sellers the respective obligations of the X. Xxxxx Group and the X. Xxxxx Group shall be several and not joint (but joint and several as among the members of the X. Xxxxx Group and the X. Xxxxx Group, respectively). (vi) In the event that recovery under any insurance policy (including the R&W Policy) by any Purchaser Party, any Acquired Company, or any of their Affiliates with respect to indemnification any Losses for breach of which any Fundamental Representation, shall be limited to $42,573,651.27; provided, however, each Investor will be entitled to its pro rata portion of any indemnification provided Purchaser Indemnified Party has been indemnified directly by the Company under this Article VISellers hereunder, based on then a refund equal to the percentage of Purchased Securities purchased by such Investor and provided further that in no event will any Investor ever be liable for more than the aggregate amount of net proceeds received by such Investor under the Acquisition Agreement. Notwithstanding anything to the contrary contained herein, any damages otherwise indemnifiable under this Article VI shall be reduced by the amount of insurance proceeds actually recovered by a Company Related Party or Investor Related Party, as applicable, in respect of such damages recovery (net of all out-of-pocket costs of collection, deductibles and retro-premium adjustments). Damages expenses directly related to pursuing such recovery) shall be determined without duplication of recovery by reason made promptly to the Sellers’ Representative for the benefit of the state of facts giving rise to such damages constituting a breach of more than one representation, warranty, covenant or agreement. Each of the parties acknowledges that indemnification obligations under this Agreement and the Acquisition Agreement may overlap, and agree that any such overlapping claim for indemnification may be made under this Agreement or the Acquisition Agreement; provided, however, that any claim for indemnity made against an indemnifying party which may be brought under Article VIII shall be brought under Section 8.07. No party may obtain duplicative indemnification or other recovery under this Agreement and the Acquisition AgreementSellers.