Common use of Applicability of Escrow Amount Cap; Indemnification Cap Clause in Contracts

Applicability of Escrow Amount Cap; Indemnification Cap. (i) Notwithstanding anything in this Article X to the contrary, the limitations set forth in Section 10.3(a) and Section 10.3(a) shall not apply (and shall not limit the indemnification or other obligations of any Member): (A) in the event of any claim of fraud, intentional misrepresentation or willful breach by or on behalf of the Company, TopCo, or any Member; or (B) for inaccuracies in or breaches of the Company Fundamental Representations or the Company Core IP Representations. (ii) The total amount of indemnification payments that each Member can be required to make to the Buyer Indemnified Parties pursuant to Section 10.2(a) (in excess of the amount, if any, that was withheld with respect to such Member as a contribution to the Retention Escrow Fund and paid to Buyer or any other Buyer Indemnified Party out of the Retention Escrow Fund) shall be limited to an amount equal to (A) the aggregate cash actually paid and Buyer Shares actually issued to such Member (or to TopCo for the benefit of such Member) pursuant to his, her, or its Redemption Agreement (prior to deduction of any Taxes, if any), plus (B) the aggregate amount actually paid to such Member pursuant to Annex I of the Operating Agreement (the “Member Cap”), provided, however, that the maximum liability with respect to inaccuracies or breaches of the Company Core IP Representations, to the extent the Buyer Indemnified Parties do not receive payment in respect thereof from the R&W Insurance Policy, shall not exceed an amount equal to 50% of the Member Cap. For the avoidance of doubt, the foregoing shall not limit or otherwise restrict the right of any Buyer Indemnified Party to pursue remedies (X) under any Transaction Document against the parties thereto or (Y) in connection with any claim of fraud, intentional misrepresentation or willful breach by or on behalf of the Company, TopCo or any Member (for which there shall be no limitation of liability hereunder). (iii) Except with respect to (X) any claim of fraud, intentional misrepresentation or willful breach by or on behalf of the Company, TopCo, or any Member, and (Y) inaccuracies in or breaches of any Company Fundamental Representations, for the matters referred to in Section 10.2(a)(i), the following order of priority shall apply for recovery: (1) first, after the Deductible Amount (except with respect to Company Core IP Representations, to which the Deductible Amount does not apply), from the Retention Escrow Fund until such funds are exhausted; (2) second, to the extent covered by R&W Insurance Policy, from the R&W Insurance Policy by collecting insurance proceeds therefrom, provided that with respect to inaccuracies or breaches of any Company Core IP Representation, if the retention under the R&W Insurance Policy is not satisfied, Loss shall be recovered from the Members to the extent necessary to satisfy the retention prior to recovery from the R&W Insurance Policy; and (3) third, with respect to inaccuracies in or breaches of any Company Core IP Representation, directly from the Members. (iv) With respect to (X) any claim of fraud, intentional misrepresentation or willful breach by or on behalf of the Company, TopCo, or any Member; (Y) inaccuracies in or breaches of any Company Fundamental Representations; and (Z) any of the matters referred to in Sections 10.2(a)(ii) through 10.2(a)(x), inclusive, the Buyer Indemnified Parties may, in their sole and absolute discretion, seek to recover amounts in respect of such claims, without order of priority, (1) directly from the Members, (2) from the Retention Escrow Fund or (3) to the extent covered by R&W Insurance Policy, from the R&W Insurance Policy by collecting insurance proceeds therefrom.

Applicability of Escrow Amount Cap; Indemnification Cap. (i) Notwithstanding anything in this Article X Section 8 to the contrary, the limitations set forth in Section 10.3(a8.3(a) and Section 10.3(a8.3(b) shall not apply (and shall not limit the indemnification or other obligations of any MemberIndemnifying Securityholder): (A) in the event of any claim of fraud, intentional misrepresentation or willful breach by or on behalf of the Company, TopCo, or any MemberFraud; or (B) for to claims regarding inaccuracies in or breaches of the Company Fundamental Representations or the Company Core IP Representations. (ii) The Notwithstanding anything to the contrary set forth herein, the total amount of indemnification payments that each Member Indemnifying Securityholder can be required to make to the Buyer Indemnified Parties pursuant to Section 10.2(a8.2(a) (in excess of the amount, if any, that was withheld with respect to such Member Indemnifying Securityholder as a contribution to the Retention Indemnity Escrow Fund and paid to Buyer or any other Buyer Indemnified Party out of the Retention Indemnity Escrow Fund) shall be limited to an amount equal to (A) the aggregate cash actually paid and (B) the value of shares of Buyer Shares Common Stock (valued at the Buyer Stock Price) actually issued to such Member (or to TopCo for the benefit of such Member) pursuant to his, her, or its Redemption Agreement Indemnifying Securityholder (prior to deduction of any Taxes, if any), plus (B) the aggregate amount actually paid to such Member pursuant to Annex I of the Operating Agreement (the “Member Individual Cap”), provided, however, ; provided that the maximum liability with respect to inaccuracies or breaches of the Company Core IP Representations, to the extent the Buyer Indemnified Parties do not receive payment in respect thereof from the R&W Insurance Policy, shall not exceed an amount equal to 50% of the Member Cap. For the avoidance of doubt, the foregoing shall not limit or otherwise restrict the right of any Buyer Indemnified Party to pursue remedies (X) under any Transaction Document Ancillary Agreement against the parties thereto or (Y) in connection with any claim of fraud, intentional misrepresentation or willful breach Fraud by or on behalf of the Company, TopCo or any Member Indemnifying Securityholder against such Indemnifying Securityholder (for which there shall be no limitation of liability hereunder). (iii) Except with respect to (X) any claim of fraud, intentional misrepresentation or willful breach Fraud by or on behalf of the Company, TopCo, or any Member, and (Y) inaccuracies in or breaches of any Company Fundamental Representations, for the matters referred to in Section 10.2(a)(i8.2(a)(i), the following order of priority shall apply for recovery: (1) first, after the Deductible Amount (except with respect to Company Core IP Representations, to which the Deductible Amount does not apply)Amount, from the Retention Indemnity Escrow Fund until such funds are exhausted; and (2) second, to the extent covered by R&W Insurance Policy, from the R&W Insurance Policy by collecting insurance proceeds therefrom, provided that with respect to inaccuracies or breaches of any Company Core IP Representation, if the retention under the R&W Insurance Policy is not satisfied, Loss shall be recovered from the Members to the extent necessary to satisfy the retention prior to recovery from the R&W Insurance Policy; and (3) third, with respect to inaccuracies in or breaches of any Company Core IP Representation, directly from the Members. (iv) With respect to (X) any claim of fraud, intentional misrepresentation or willful breach by or on behalf of the Company, TopCo, or any Member; (Y) inaccuracies in or breaches of any Company Fundamental Representations; and (Z) any of the matters referred to in Sections 10.2(a)(ii8.2(a)(ii)-8.2(a)(ix) through 10.2(a)(xand 8.2(a)(xi), inclusive, the Buyer Indemnified Parties may, in their sole and absolute discretion, seek to recover amounts in respect of such claims, without order of priority, claims (1) directly from the Members, Indemnifying Securityholders or (2) from the Retention Indemnity Escrow Fund. (v) With respect to any of the matters referred to in Section 8.2(a)(x) (or any claim that could be reasonably characterized as a claim under Section 8.2(a)(x)), the following order of priority shall apply for recovery: (1) first, from the Specified Matters Escrow Fund until such funds are exhausted; and (2) second, the Buyer Indemnified Parties may, in their sole and absolute discretion, seek to recover amounts in respect of such claims (A) directly from the Indemnifying Securityholders or (3B) from the Indemnity Escrow Fund. (vi) Any indemnification owed by the Indemnifying Securityholders to the Buyer Indemnified Parties pursuant to Section 8.2(a)(i) for a breach of any Fundamental Representation, the matters to which Section 5 applies or in the case of any claim of Fraud by or on behalf of the Company shall be satisfied: (A) first, by disbursement from the Indemnity Escrow Fund, if any, which at the time of such claim is being held by the Escrow Agent pursuant to the Escrow Agreement (provided, that in the event a subsequent claim for indemnification resulting in Losses owed by the Company Securityholders to the Buyer Indemnified Parties pursuant to Section 8.2(a)(i) within the Expiration Date, matters to which Section 5 applies or in the case of Fraud, the Indemnifying Securityholders shall remain liable for the aggregate amounts paid from the Indemnity Escrow Fund to the Buyer Indemnified Parties pursuant to this clause (A)), (B) second, directly from the Indemnifying Securityholders up to the remainder of the retention under the R&W Insurance Policy, (C) third, to the extent the Buyer Indemnifiable Parties’ indemnifiable Losses exceed the retention under the R&W Insurance Policy and to the extent the claim is covered by the R&W Insurance Policy, from and against the R&W Insurance Policy, and (D) finally, if (A) the claim is not covered by the R&W Insurance Policy and the Buyer Indemnified Parties’ indemnifiable Losses exceed the amount remaining in the Indemnity Escrow Fund, or (B) the Buyer Indemnifiable Parties’ indemnifiable Losses exceed the Indemnity Escrow Fund, the retention under the R&W Insurance Policy, and coverage available under the R&W Insurance Policy with respect thereto, then in each case, against the Indemnifying Securityholders in accordance with their respective Pro Rata Shares, subject to Section 8.3(c)(ii). (vii) The payment of any cash from the Indemnity Escrow Fund in satisfaction of any indemnification obligations under this Article 8 shall be made, with respect to each Indemnifying Securityholder with consideration subject to vesting, including, without limitation, the Retention Holdback Amount, first with cash subject to vesting or other restrictions and then, if such cash is insufficient to satisfy such indemnification obligation and only to the extent of such insufficiency, shall such payment be made with vested cash. In the event any unvested cash of the Key Employee that is placed in the Indemnity Escrow Fund is forfeited by collecting insurance proceeds therefromsuch Key Employee, such unvested cash shall be paid to Buyer out of the Indemnity Escrow Fund and reduce dollar-for-dollar the amount that would be paid to such Key Employee at the time any cash in the Indemnity Escrow Fund is paid to the Indemnifying Securityholder.

Applicability of Escrow Amount Cap; Indemnification Cap. (i) Notwithstanding anything in this Article X IX to the contrary, the limitations set forth in Section 10.3(a9.3(a) and Section 10.3(a9.3(b) shall not apply (and shall not limit the indemnification or other obligations of any Indirect Member): (A) in the event of any claim of fraud, intentional misrepresentation or willful breach by or on behalf of the CompanyCompany (other than at the direction of Buyer), TopCothe Sellers’ Representative, or any Member; or (B) for inaccuracies in or breaches of the Company Member Fundamental Representations or the Company Core IP Representations. (ii) The total amount of indemnification payments that each Indirect Member can be required to make to the Buyer Indemnified Parties pursuant to Section 10.2(a9.2(a) (in excess of the amount, if any, that was withheld with respect to such Indirect Member as a contribution to the Retention Escrow Fund and paid to Buyer or any other Buyer Indemnified Party out of the Retention Escrow Fund) shall be limited to an amount equal to (A) the aggregate cash actually paid and Buyer Shares actually issued to such Member (or to TopCo for the benefit of such Indirect Member) pursuant to his, her, or its Redemption Agreement (prior to deduction of any Taxes, if any), plus (B) the aggregate amount actually paid to such Member pursuant to Annex I of the Operating Agreement (the “Member Cap”), provided, however, that the maximum liability with respect to inaccuracies or breaches of the Company Core IP Representations, to the extent the Buyer Indemnified Parties do not receive payment in respect thereof from the R&W Insurance Policy, shall not exceed an amount equal to 50% of the ’s Member Cap. For the avoidance of doubt, the foregoing shall not limit or otherwise restrict the right of any Buyer Indemnified Party to pursue remedies (X) under any Transaction Document or other agreement or instrument against the parties thereto or (Y) in connection with any claim of fraud, intentional misrepresentation or willful breach by or on behalf of the CompanyCompany (other than at the direction of the Buyer), TopCo Sellers’ Representative or any Member (for which there shall be no limitation of liability hereunder). (iii) Except with respect to (X) any claim of fraud, intentional misrepresentation or willful breach by or on behalf of the Company, TopCo, or any Member, and (Y) inaccuracies in or breaches of any Company Fundamental Representations, for the matters referred to in Section 10.2(a)(i), the following order of priority shall apply for recovery: (1) first, after the Deductible Amount (except with respect to Company Core IP Representations, to which the Deductible Amount does not apply), from the Retention Escrow Fund until such funds are exhausted; (2) second, to the extent covered by R&W Insurance Policy, from the R&W Insurance Policy by collecting insurance proceeds therefrom, provided that with respect to inaccuracies or breaches of any Company Core IP Representation, if the retention under the R&W Insurance Policy is not satisfied, Loss shall be recovered from the Members to the extent necessary to satisfy the retention prior to recovery from the R&W Insurance Policy; and (3) third, with respect to inaccuracies in or breaches of any Company Core IP Representation, directly from the Members. (iv) With respect to (X) any claim of fraud, intentional misrepresentation or willful breach by or on behalf of the CompanyCompany (other than at the direction of the Buyer), TopCo, Sellers’ Representative or any Member; (Y) inaccuracies in or breaches of any Company Member Fundamental Representations; and (Z) any of the matters referred to in Sections 10.2(a)(ii9.2(a)(ii) through 10.2(a)(x9.2(a)(ix), inclusive, the Buyer Indemnified Parties may, in their sole and absolute discretion, seek to recover amounts in respect of such claims, without order of priority, (1) directly from the Indirect Members, and (2) from the Retention Escrow Fund. (iv) Notwithstanding anything to the contrary in this Section 9.3, after the release of the Xxxxxxxx Released Amount, in the event Buyer is entitled to a release of any funds from the Escrow Fund or on account of any Losses, (3i) the amount released to Buyer from the Escrow Fund shall be equal to the extent covered by R&W Insurance Policy, amount of such Losses recoverable from the R&W Insurance Policy Escrow Fund pursuant to other provisions of this Agreement multiplied by collecting insurance proceeds therefromthe aggregate Pro Rata Portion of all Indirect Members (other than the Pro Rata Portion of T5) and (ii) T5 shall pay to Buyer T5’s Pro Rata Portion of all such Losses.

Applicability of Escrow Amount Cap; Indemnification Cap. (i) Notwithstanding anything in this Article X to the contrary, the limitations The limitation set forth in Section 10.3(a10.3(d) and Section 10.3(a) with respect to claims by an Indemnified Party under this Agreement shall not apply (and shall not limit the indemnification or other obligations of any MemberEffective Time Holder): (A) in the event of any claim of fraud, intentional misrepresentation fraud with respect to another party hereto or willful breach by or on behalf of the Company, TopCo, or any Memberan Indemnified Party hereunder; or (B) for to inaccuracies in or breaches of any of the Specified Representations; or (C) to any of the matters to which Section 6 applies. Each Effective Time Holder shall, severally and not jointly, indemnify and hold harmless each Parent Indemnitee from and against such Effective Time Holder’s Indemnity Pro Rata Share of any Damages arising directly or indirectly from, resulting from, or directly or indirectly related to (W) fraud with respect to another party hereto or an Indemnified Party hereunder (whether on the part of any Effective Time Holder, any Acquired Company Fundamental Representations or any Representative of any Acquired Company); (X) inaccuracies in or breaches of any of the Company Core IP Specified Representations; (Y) any of the matters to which Section 6 applies or (Z) any of the matters referred to in Sections 10.2(a)(ii), (iv), and (v), to the extent that the Indemnity Escrow Fund is not available to satisfy all or any portion of any claim relating thereto. (ii) The Notwithstanding anything herein to the contrary, the total amount of indemnification payments that each Member Effective Time Holder can be required to make to the Buyer Indemnified Parties Parent Indemnitees pursuant to Section 10.2(a) 6 or Section 10.2 (in excess of the amount, if any, that was withheld with respect to from such Member Effective Time Holder as a contribution to the Retention Indemnity Escrow Fund pursuant to the terms of Section 1.5(c), and paid to Buyer Parent or any other Buyer Indemnified Party Parent Indemnitee out of the Retention Indemnity Escrow Fund) shall be limited to an amount equal to (A) the aggregate cash Merger Consideration such Effective Time Holder actually paid and Buyer Shares actually issued to such Member (or to TopCo for the benefit of such Member) received pursuant to his, her, or its Redemption Agreement (prior Sections 1.5 and 1.6. The total amount of indemnification payments that Parent can be required to deduction of any Taxes, if any), plus (B) make to the aggregate amount actually paid to such Member Holder Indemnitees pursuant to Annex I of the Operating Agreement (the “Member Cap”), provided, however, that the maximum liability with respect to inaccuracies or breaches of the Company Core IP Representations, Section 10.2 shall be limited to the extent the Buyer Indemnified Parties do not receive payment in respect thereof from the R&W Insurance Policy, shall not exceed an amount equal to 50% of the Member Cap. For the avoidance of doubt, the foregoing shall not limit or otherwise restrict the right of any Buyer Indemnified Party to pursue remedies (X) under any Transaction Document against the parties thereto or (Y) in connection with any claim of fraud, intentional misrepresentation or willful breach by or on behalf of the Company, TopCo or any Member (for which there shall be no limitation of liability hereunder)Purchase Price. (iii) Except with respect to (X) any claim of fraud, intentional misrepresentation or willful breach by or on behalf of the Company, TopCo, or any Member, and (Y) inaccuracies in or breaches of any Company Fundamental Representations, for the matters referred to in Section 10.2(a)(i), the following order of priority shall apply for recovery: (1) first, after the Deductible Amount (except with respect to Company Core IP Representations, to which the Deductible Amount does not apply), from the Retention Escrow Fund until such funds are exhausted; (2) second, to the extent covered by R&W Insurance Policy, from the R&W Insurance Policy by collecting insurance proceeds therefrom, provided that with respect to inaccuracies or breaches of any Company Core IP Representation, if the retention under the R&W Insurance Policy is not satisfied, Loss shall be recovered from the Members to the extent necessary to satisfy the retention prior to recovery from the R&W Insurance Policy; and (3) third, with respect to inaccuracies in or breaches of any Company Core IP Representation, directly from the Members. (iv) With respect to (X) any claim of fraud, intentional misrepresentation or willful breach by or on behalf of the Company, TopCo, or any Member; (Y) inaccuracies in or breaches of any Company Fundamental Representations; and (Z) any of the matters referred to in Sections 10.2(a)(ii) through 10.2(a)(x), inclusive, the Buyer Indemnified Parties may, in their sole and absolute discretion, seek to recover amounts in respect of such claims, without order of priority, (1) directly from the Members, (2) from the Retention Escrow Fund or (3) to the extent covered by R&W Insurance Policy, from the R&W Insurance Policy by collecting insurance proceeds therefrom.