Common use of Deductible and Cap Clause in Contracts

Deductible and Cap. No Seller shall have any indemnification obligations for Buyer Group’s Losses under Section 11.1(a)(i), unless the aggregate total of such Losses exceeds $1,500,000, and then only to the extent such Losses exceed $1,500,000; provided that in calculating Buyer Group’s aggregate total Losses, individual Losses with respect to a single incident or matter in amounts less than $150,000 shall be disregarded. Furthermore, in no event shall Sellers’ aggregate liability for indemnification under Section 11.1(a)(i) exceed ten percent (10%) of the Purchase Price; provided, that, notwithstanding the foregoing, claims for indemnification in respect of any breach of Sellers’ representations and warranties contained in Sections 3.8 and 4.14 shall not exceed twenty-five percent (25%) of the Purchase Price. Notwithstanding anything to the contrary in this Section 11.2(a), the limitations on indemnification set forth in this Section 11.2(a) shall not apply to Losses related to (i) any breach of any of Sellers’ Fundamental Representations, (ii) claims for indemnification in respect of Taxes (including any Seller’s obligations set forth in Article 7), and (iii) claims for indemnification under Section 11.1(a)(iv); provided that, except for Losses related to claims for indemnification in respect of Taxes (including any Seller’s obligations set forth in Article 7), which shall not be subject to a cap on Losses, in no event shall Sellers’ aggregate liability for indemnification with respect to all claims hereunder, including for Losses related to (A) any breach of Sellers’ representations and warranties contained in Sections 3.8 and 4.14, (B) any breach of Sellers’ Fundamental Representations and (C) claims for indemnification under Section 11.1(a)(iv), exceed an amount equal to the Purchase Price.

Deductible and Cap. No Seller Notwithstanding anything contained herein or in the Merger Agreement to the contrary, neither the Parent nor the Former Company Stockholders shall have any indemnification obligations liability under this Article XI unless and until the aggregate Damages for Buyer Group’s Losses which indemnity by such party would otherwise be due under Section 11.1(a)(iArticle XI exceeds $1,890,000 (the “Deductible”), unless in which case such indemnifying party shall only be responsible for the aggregate total of such Losses exceeds $1,500,000, and then only to the extent such Losses exceed $1,500,000; provided that in calculating Buyer Group’s aggregate total Losses, individual Losses with respect to a single incident or matter in amounts less than $150,000 shall be disregarded. Furthermore, in no event shall Sellers’ aggregate liability for indemnification under Section 11.1(a)(i) exceed ten percent (10%) of the Purchase Priceexcess Damages; provided, that, notwithstanding : (a) the foregoing, claims for indemnification in respect of any breach of Sellers’ representations and warranties contained in Sections 3.8 and 4.14 shall not exceed twenty-five percent (25%) of the Purchase Price. Notwithstanding anything to the contrary in this Section 11.2(a), the limitations on indemnification set forth in this Section 11.2(a) Deductible shall not apply to Losses related Damages incurred by reason of the matters set forth in Section 1 of the Indemnification Matters Letter; (b) that a breach shall not be deemed to have occurred and the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) any breach of any of Sellers’ Fundamental Representations, or (ii) of Section 11.1 unless any Damages arising from such breach or matter set forth on Schedule 4.16 of the Company Disclosure Schedules, as the case may be, exceeds (together with all other claims for indemnification in respect Damages so substantially related as to effectively constitute one claim) $100,000; provided, that such $100,000 threshold shall not apply to Damages incurred by reason of Taxes (including any Seller’s obligations the matters set forth in Article 7Section 1 of the Indemnification Matters Letter; (c) that the Former Company Stockholders shall not have any liability with respect to any Damages arising under clause (ii) of Section 11.1 unless and until (A) the aggregate amount of all Damages suffered by the Parent Indemnified Parties under clause (ii) of Section 11.1 exceeds in the aggregate $1,250,000 (the “Schedule 4.16 Matters Deductible”), and (iiiB) claims for indemnification the aggregate amount of all Damages suffered by Parent Indemnified Parties under clauses (i) and (ii) of Section 11.1(a)(iv); provided that, except for Losses related to claims for indemnification 11.1 exceeds in respect the aggregate the sum of Taxes (including any Seller’s obligations the amount set forth as the Schedule 4.16 Matters Deductible and the amount set forth as the Deductible in this Section 11.4, then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the sum of the Schedule 4.16 Matters Deductible and the Deductible. Notwithstanding anything contained herein to the contrary, the maximum aggregate liability of Parent, Merger Sub, the Surviving Corporation or the Former Company Stockholders, as the case may be, under this Article 7), which XI or Section 8.6 shall not be subject to a cap on Losses, in no event shall Sellers’ aggregate liability for indemnification with respect to all claims hereunder, including for Losses related to exceed $17,120,000 (A) any breach of Sellers’ representations and warranties contained in Sections 3.8 and 4.14, (B) any breach of Sellers’ Fundamental Representations and (C) claims for indemnification under Section 11.1(a)(ivthe “Cap”), exceed an amount equal to the Purchase Price.

Deductible and Cap. No Seller Notwithstanding anything contained herein to the contrary, neither Parent nor the Former Company Stockholders shall have any indemnification obligations liability under this Article XI unless and until the aggregate Damages for Buyer Group’s Losses which indemnity by such party would otherwise be due under Section 11.1(a)(iArticle XI exceeds $2,760,000 (the “Deductible”), unless in which case such indemnifying party shall only be responsible for the aggregate total of such Losses exceeds $1,500,000, and then only to the extent such Losses exceed $1,500,000; provided that in calculating Buyer Group’s aggregate total Losses, individual Losses with respect to a single incident or matter in amounts less than $150,000 shall be disregarded. Furthermore, in no event shall Sellers’ aggregate liability for indemnification under Section 11.1(a)(i) exceed ten percent (10%) of the Purchase Priceexcess; provided, that, notwithstanding : (a) the foregoing, claims for indemnification in respect of any breach of Sellers’ representations and warranties contained in Sections 3.8 and 4.14 shall not exceed twenty-five percent (25%) of the Purchase Price. Notwithstanding anything to the contrary in this Section 11.2(a), the limitations on indemnification set forth in this Section 11.2(a) Deductible shall not apply to Losses related Damages incurred by reason of the matters set forth in the Indemnification Matters Letter; (b) that a breach shall not be deemed to have occurred and the Parent Indemnified Parties shall not be deemed to have incurred any Damages under clauses (i) any breach of any of Sellers’ Fundamental Representations, or (ii) of Section 11.1 unless any Damages arising from such breach or matter set forth on Schedule 4.16 of the Company Disclosure Schedules, as the case may be, exceeds (together with all other claims for indemnification in respect Damages so substantially related as to effectively constitute one claim) $100,000; provided, that such $100,000 threshold shall not apply to Damages incurred by reason of Taxes (including any Seller’s obligations the matters set forth in Article 7the Indemnification Matters Letter; (c) that the Former Company Stockholders shall not have any liability with respect to any Damages arising under clause (ii) of Section 11.1 unless and until (A) the aggregate amount of all Damages suffered by the Parent Indemnified Parties under clause (ii) of Section 11.1 exceeds in the aggregate $1,250,000 (the “Schedule 4.16 Matters Deductible”), and (iiiB) claims for indemnification the aggregate amount of all Damages suffered by Parent Indemnified Parties under clauses (i) and (ii) of Section 11.1(a)(iv); provided that, except for Losses related to claims for indemnification 11.1 exceeds in respect the aggregate the sum of Taxes (including any Seller’s obligations the amount set forth as the Schedule 4.16 Matters Deductible and the amount set forth as the Deductible in this Section 11.4, then the Parent Indemnified Parties shall be entitled to indemnification only for such aggregate amount that exceeds the sum of the Schedule 4.16 Matters Deductible and the Deductible. Notwithstanding anything contained herein to the contrary, the maximum aggregate liability of Parent or the Former Company Stockholders, as the case may be, under this Article 7), which XI or Section 8.6 shall not be subject to a cap on Losses, in no event shall Sellers’ aggregate liability for indemnification with respect to all claims hereunder, including for Losses related to exceed $25,000,000 (A) any breach of Sellers’ representations and warranties contained in Sections 3.8 and 4.14, (B) any breach of Sellers’ Fundamental Representations and (C) claims for indemnification under Section 11.1(a)(ivthe “Cap”), exceed an amount equal to the Purchase Price.

Deductible and Cap. No Seller Sellers shall not have any indemnification obligations for Buyer Group’s Losses under Section 11.1(a)(i), unless the aggregate total of such Losses exceeds $1,500,000, and then only to the extent such Losses exceed $1,500,000; provided that in calculating Buyer Group’s aggregate total Losses, individual Losses with respect to a single incident obligation or matter in amounts less than $150,000 shall be disregarded. Furthermore, in no event shall Sellers’ aggregate liability for indemnification under Section 11.1(a)(i10.2(a) exceed ten percent or 10.2(b)(i) (10%) except for breaches of the Purchase PriceSeller Fundamental Representations and the Company Fundamental Representations) for any individual indemnity claim against Sellers, the amount of which does not exceed $100,000, unless and until the aggregate of all such individual indemnity claims exceeding such threshold against Sellers exceeds an amount equal to $5,742,634.87 (the “Indemnity Deductible”), and then only with respect to the amount of such indemnity claims against Sellers that exceed the Indemnity Deductible, when taken together on a cumulative basis with any amounts payable to Buyer under Section 6.1 or any obligation or liability for indemnification under Section 10.2(b)(iii), that are less than an amount equal to $86,139,523.10 (the “Indemnity Cap”); provided, thathowever, that notwithstanding the foregoingfact that Section 3.2(j) (Taxes) is a Company Fundamental Representation, claims for indemnification in respect of the Indemnity Cap shall apply to any breach of Sellers’ the representations and warranties contained set forth in Sections 3.8 and 4.14 shall not exceed twenty-five percent Section 3.2(j) (25%Taxes). In no event will (i) Sellers be liable for indemnification payments (other than such payments resulting from (x) breach of Seller Fundamental Representations or Company Fundamental Representations (excluding Section 3.2(j) (Taxes)), (y) Actions or Third Party Claims arising from the Transaction Liabilities or (z) any breach by the Company, any Seller or Sellers’ Representative of the Purchase Price. Notwithstanding anything to covenants of any member of the contrary in this Section 11.2(a)Company Group, the limitations on indemnification any Seller or Sellers’ Representative set forth in this Section 11.2(aAgreement (excluding Seller Taxes)) shall not apply to Losses related to (i) any breach of any of Sellers’ Fundamental Representations, in an aggregate amount greater than the Indemnity Cap and (ii) claims any Seller ever be liable for indemnification payments to Buyer under this Agreement in respect of Taxes (including any an aggregate amount exceeding such Seller’s obligations set forth in Article 7), and (iii) claims for indemnification under Section 11.1(a)(iv); provided that, except for Losses related to claims for indemnification in respect of Taxes (including any Seller’s obligations set forth in Article 7), which shall not be subject to a cap on Losses, in no event shall Sellers’ aggregate liability for indemnification with respect to all claims hereunder, including for Losses related to (A) any breach of Sellers’ representations and warranties contained in Sections 3.8 and 4.14, (B) any breach of Sellers’ Fundamental Representations and (C) claims for indemnification under Section 11.1(a)(iv), exceed an amount equal to the Purchase PricePro Rata Portion.