Common use of Indemnification by the Stockholders and Optionholders Clause in Contracts

Indemnification by the Stockholders and Optionholders. (a) The Stockholders and Optionholders shall indemnify the Buyer and its affiliates and their respective officers, directors, employees and agents against and hold them harmless: (i) from any loss, liability, damage, demand, claim, cost, suit, action or cause of action, judgment, award, assessment, interest, penalty or expense (including, without limitation, reasonable expenses of investigation and reasonable attorneys' and consultants' fees) (any of the foregoing being hereinafter referred to individually as a "Loss" and collectively as "Losses") suffered or incurred by any such indemnified person for or on account of or arising from or in connection with (A) any breach of any representation or warranty of the Company in this Agreement, (B) any breach of any covenant or agreement of the Company in this Agreement, (C) any claim, suit, action or cause of action brought by or on behalf of any holder of a Company Warrant or any potential holder of a Company Warrant that remains issuable by the Company under the Plan of Reorganization, whether relating to the Warrant Notice or otherwise or (D) any claim, suit, action or cause of action brought by or on behalf of a Stockholder with respect to the disclosures contained in the Proxy Statement; and (ii) (A) from any and all Taxes imposed upon the Company or any of its Subsidiaries with respect or pursuant to (x) any taxable period ending on or prior to the Closing Date, or with respect to any taxable period beginning prior to and ending after the Closing Date, the portion of such taxable period ending on and including the Closing Date (a "Pre-Closing Period"), (y) Treasury regulation Section 1.1502-6 (or any comparable provision under state, local or foreign law or regulation imposing several liability upon members of a consolidated, combined, affiliated or unitary group) for any Pre-Closing Period or (z) any and all Taxes of any person (other than the Company and its Subsidiaries) imposed on the Company or any of its Subsidiaries as a transferee or successor, by contract or pursuant to any law, rule or regulation, which Taxes relate to a Pre-Closing Period, excluding in the case of clauses (x), (y) and (z) above, (1) the amount of any Tax that has been specifically taken into account in determining the Adjusted Working Capital on the Final Closing Balance Sheet for purposes of calculating the Final Aggregate Merger Consideration pursuant to Section 2.1(e) and (2) the amount of any Tax to the extent the Stockholders and Optionholders are required to indemnify the Buyer and its affiliates for such Tax pursuant to Section 8.2(a)(ii)(B) hereof and (B) if any Tax Return required to be filed in connection with any election by the Buyer under Section 338(g) of the Code (or any similar provision of state, local or other law) (the "Section 338 Election") with respect to the Buyer's acquisition of the Company pursuant to the Merger reflects an adjusted tax basis of the goodwill of the Company as of the Closing Date (and prior to the effect of the Section 338 Election) of less than $59,884,000 (based on the reasonable determination of the Buyer, after consultation with Deloitte & Touche LLP, independent certified public accountants for the Buyer, and after consideration of all information concerning the Company that the Buyer deems relevant to such determination), from the excess of (x) the amount of Taxes (including any alternative minimum tax or similar tax under state, local or other law) shown as due on any such Tax Return over (y) the amount of Taxes that would have been shown as due on such Tax Return if such adjusted tax basis had been equal to $59,884,000. (b) The Stockholders and Optionholders shall have no obligation under Section 8.2(a)(i) until the aggregate amount of Losses suffered or incurred by the indemnified persons thereunder exceeds $250,000 (the "Deductible"), and thereafter, subject to the next sentence in this Section 8.2(b), the obligation of the Stockholders and Optionholders under Section 8.2(a)(i) shall be for all Losses in excess of the Deductible suffered or incurred by the indemnified persons thereunder; provided that, the Deductible shall not apply to Section 8.2(a)(i)(A) with respect to any breach of any of the representations and warranties in the first sentence of Section 3.3(a) or in Section 3.3(b) and the Stockholders and Optionholders shall indemnify the indemnified persons under Section 8.2(a) for the entire amount of any Loss suffered or incurred by such indemnified persons for or on account of or arising from or in connection with any breach of any of the representations and warranties in the first sentence of Section 3.3(a) or in Section 3.3(b). The obligation of the Stockholders and Optionholders under Sections 8.2(a)(i) and (ii)(A) shall be limited to the lesser of (i) $6,000,000 of the Equity Escrow Fund or (ii) the portion of the Equity Escrow Fund from time to time remaining with the Payment and Escrow Agent under the Payment and Escrow Agreement, and the Stockholders and Optionholders shall have no further obligation under Sections 8.2(a)(i) and (ii)(A) after the earlier of (x) $6,000,000 of the Equity Escrow Fund has been distributed to the Buyer with respect to the obligation of the Stockholders and Optionholders under Sections 8.2(a)(i) and (ii)(A) in accordance with the Payment and Escrow Agreement or (y) the entire Equity Escrow Fund has been otherwise paid or distributed in accordance with the Payment and Escrow Agreement. The obligation of the Stockholders and Optionholders under Section 8.2(a)(ii)(B) shall be limited to the lesser of (i) $2,900,000 of the Equity Escrow Fund or (ii) the portion of the Equity Escrow Fund from time to time remaining with the Payment and Escrow Agent under the Payment and Escrow Agreement, and the Stockholders and Optionholders shall have no further obligation under Section 8.2(a)(ii)(B) after the earlier of (x) $2,900,000 of the Equity Escrow Fund has been distributed to the Buyer with respect to the obligation of the Stockholders and Optionholders under Section 8.2(a)(ii)(B) in accordance with the Payment and Escrow Agreement or (y) the entire Equity Escrow Fund has been otherwise paid or distributed in accordance with the Payment and Escrow Agreement. The obligations of the Stockholders and Optionholders under Section 8.2(a) shall be several, and not joint, in proportion to their respective ownership percentage interests equal to a quotient, expressed as a percentage, obtained by dividing (i) in the case of a Stockholder, the number of shares of Company Common Stock held by such Stockholder immediately prior to the Effective Time or, in the case of an Optionholder, the number of shares of Company Common Stock subject to Company Options outstanding

Indemnification by the Stockholders and Optionholders. Subject to the other provisions of this Article X, from and after the Closing, each Stockholder (a) The Stockholders other than any Dissenting Stockholder), Optionholder and Optionholders each Promised Optionholder (each, an “Indemnifying Equityholder”), severally and not jointly, based on their respective Pro Rata Share, shall indemnify the Buyer and hold Purchaser, its affiliates and Affiliates, their respective officers, directors, employees successors and agents against and hold them harmless: (i) from any loss, liability, damage, demand, claim, cost, suit, action or cause of action, judgment, award, assessment, interest, penalty or expense assigns (including, without limitationfrom and after the Closing, reasonable expenses the Company Group) and each of investigation their respective officers (or equivalents), directors (or equivalents), employees, stockholders, partners, members or other equity holders, agents and reasonable attorneys' representatives (each, a “Purchaser Indemnified Party”) harmless from and consultants' fees) (against any of the foregoing being hereinafter referred to individually as a "Loss" and collectively as "Losses") all Losses suffered or incurred by any such indemnified person for Purchaser Indemnified Party to the extent arising from, relating to or on account of or arising from or otherwise in connection with the following: (Aa) any breach or inaccuracy of any representation or warranty set forth in Article III made as of the date of this Agreement and as of the Closing Date (in each case, as such representations and warranties are modified by the Disclosure Schedule) or in any certificate or instrument delivered by or on behalf of the Company in pursuant to this Agreement, ; (Bb) any breach of or failure to perform any covenant or agreement of the Company Company, contained in this Agreement, (C) Agreement or any claim, suit, action or cause of action brought certificates delivered by or on behalf of the Company; (c) any holder claim by a Person seeking to assert or based upon: (i) any rights under the Governing Documents of a the Company Warrant Group; (ii) any issues arising from the Allocation Schedule, any inaccuracy, error or omission therein, or any potential holder action taken or not taken by the Representative or for any act or omission taken or not taken by Purchaser or Merger Sub solely in reliance upon the actions taken or not taken or decisions, communications or writings made, given or executed by the Representative in connection with the Allocation Schedule, including any failure of the Representative to correctly calculate the amounts owing to a Company Warrant that remains issuable Equityholder; (iii) any breach of fiduciary duty by the Company under the Plan of Reorganization, whether relating Group’s directors or officers (or equivalents) prior to the Warrant Notice or otherwise or (D) any claim, suit, action or cause of action brought by or on behalf of a Stockholder with respect to the disclosures contained in the Proxy StatementClosing; and (ii) (A) from any and all Taxes imposed upon the Company or any of its Subsidiaries with respect or pursuant to (xiv) any taxable period ending on or prior to the Closing Date, or with respect to any taxable period beginning prior to and ending after the Closing Date, the portion of such taxable period ending on and including the Closing Date (a "Pre-Closing Period"), (y) Treasury regulation Section 1.1502-6 (or any comparable provision under state, local or foreign law or regulation imposing several liability upon members of a consolidated, combined, affiliated or unitary group) for any Pre-Closing Period or (z) any and all Taxes of any person (other than the Company and its Subsidiaries) imposed on the Company or any of its Subsidiaries as a transferee or successor, by contract or pursuant to any law, rule or regulation, which Taxes relate to a Pre-Closing Period, excluding in the case of clauses (x), (y) and (z) above, (1) the amount of any Tax that has been specifically taken into account in determining the Adjusted Working Capital on the Final Closing Balance Sheet for purposes of calculating the Final Aggregate Merger Consideration pursuant to Section 2.1(e) and (2) the amount of any Tax to the extent the Stockholders and Optionholders are required to indemnify the Buyer and its affiliates for such Tax pursuant to Section 8.2(a)(ii)(B) hereof and (B) if any Tax Return required to be filed in connection with any election by the Buyer under Section 338(g) of the Code (or any similar provision of state, local or other law) (the "Section 338 Election") with respect to the Buyer's acquisition Transaction Expenses of the Company pursuant to the Merger reflects an adjusted tax basis of the goodwill of the Company as of the Closing Date (and prior to the effect of the Section 338 Election) of less than $59,884,000 (based on the reasonable determination of the Buyer, after consultation with Deloitte & Touche LLP, independent certified public accountants for the Buyer, and after consideration of all information concerning the Company that the Buyer deems relevant to such determination), from the excess of (x) the amount of Taxes (including any alternative minimum tax or similar tax under state, local or other law) shown as due on any such Tax Return over (y) the amount of Taxes that would have been shown as due on such Tax Return if such adjusted tax basis had been equal to $59,884,000. (b) The Stockholders and Optionholders shall have no obligation under Section 8.2(a)(i) until the aggregate amount of Losses suffered or incurred by the indemnified persons thereunder exceeds $250,000 (the "Deductible"), and thereafter, subject to the next sentence in this Section 8.2(b), the obligation of the Stockholders and Optionholders under Section 8.2(a)(i) shall be for all Losses Group in excess of the Deductible suffered or incurred by the indemnified persons thereunder; provided that, the Deductible shall $[*] that were not apply to Section 8.2(a)(i)(A) with respect to any breach of any of the representations and warranties reflected in the first sentence calculation of Section 3.3(a) or in Section 3.3(b) and the Stockholders and Optionholders shall indemnify the indemnified persons under Section 8.2(a) for the entire amount of any Loss suffered or incurred by such indemnified persons for or on account of or arising from or in connection with any breach of any of the representations and warranties in the first sentence of Section 3.3(a) or in Section 3.3(b). The obligation of the Stockholders and Optionholders under Sections 8.2(a)(i) and (ii)(A) shall be limited to the lesser of (i) $6,000,000 of the Equity Escrow Fund or (ii) the portion of the Equity Escrow Fund from time to time remaining with the Payment and Escrow Agent under the Payment and Escrow Agreement, and the Stockholders and Optionholders shall have no further obligation under Sections 8.2(a)(i) and (ii)(A) after the earlier of (x) $6,000,000 of the Equity Escrow Fund has been distributed to the Buyer with respect to the obligation of the Stockholders and Optionholders under Sections 8.2(a)(i) and (ii)(A) in accordance with the Payment and Escrow Agreement or (y) the entire Equity Escrow Fund has been otherwise paid or distributed in accordance with the Payment and Escrow Agreement. The obligation of the Stockholders and Optionholders under Section 8.2(a)(ii)(B) shall be limited to the lesser of (i) $2,900,000 of the Equity Escrow Fund or (ii) the portion of the Equity Escrow Fund from time to time remaining with the Payment and Escrow Agent under the Payment and Escrow Agreement, and the Stockholders and Optionholders shall have no further obligation under Section 8.2(a)(ii)(B) after the earlier of (x) $2,900,000 of the Equity Escrow Fund has been distributed to the Buyer with respect to the obligation of the Stockholders and Optionholders under Section 8.2(a)(ii)(B) in accordance with the Payment and Escrow Agreement or (y) the entire Equity Escrow Fund has been otherwise paid or distributed in accordance with the Payment and Escrow Agreement. The obligations of the Stockholders and Optionholders under Section 8.2(a) shall be several, and not joint, in proportion to their respective ownership percentage interests equal to a quotient, expressed as a percentage, obtained by dividing (i) in the case of a Stockholder, the number of shares of Company Common Stock held by such Stockholder immediately prior to the Effective Time or, in the case of an Optionholder, the number of shares of Company Common Stock subject to Company Options outstandingMerger Consideration.

Indemnification by the Stockholders and Optionholders. 9.2.1 Subject to the terms and conditions of this Article IX. , the Stockholders and the Optionholders shall severally (in accordance with the proportion of the Transaction Consideration allocated to such Stockholder and Optionholder pursuant to the Allocation Certificate), and not jointly, indemnify, defend, and hold harmless the Purchaser and its equity owners, directors, managers, officers, employees, and Affiliates, and, after the Closing, the Company and its Subsidiaries (collectively, all of the foregoing the “Purchaser Indemnified Parties”) against any and all Damages actually incurred or suffered by the Purchaser Indemnified Parties to the extent resulting from: (a) The Stockholders any failure of any representation or warranty made by the Company or any Stockholder in this Agreement to be true and Optionholders correct; provided, however, that no Stockholder shall indemnify the Buyer and its affiliates and their respective officersbe required to indemnify, directors, employees and agents against and defend or hold them harmless: (i) from harmless any loss, liability, damage, demand, claim, cost, suit, action or cause of action, judgment, award, assessment, interest, penalty or expense (including, without limitation, reasonable expenses of investigation and reasonable attorneys' and consultants' fees) (any of the foregoing being hereinafter referred Purchaser Indemnified Party with respect to individually as a "Loss" and collectively as "Losses") suffered or incurred by any such indemnified person for or on account of or arising from or in connection with (A) any breach of any representation or warranty of the Company in this Agreement, made by another Stockholder pursuant to Article IV; (Bb) any breach of any covenant or agreement of the Company in this Agreement, (C) any claim, suit, action or cause of action brought required to be performed by or on behalf of any holder of a Company Warrant or any potential holder of a Company Warrant that remains issuable by the Company under the Plan of Reorganization, whether relating to the Warrant Notice or otherwise or (D) any claim, suit, action or cause of action brought by or on behalf of a Stockholder with respect to the disclosures contained in the Proxy Statement; and (ii) (A) from any and all Taxes imposed upon the Company or any of its Subsidiaries with respect or Stockholder pursuant to (x) this Agreement; provided, however, that no Stockholder shall be required to indemnify, defend or hold harmless any taxable period ending on or prior to the Closing Date, or Purchaser Indemnified Party with respect to a breach of any taxable period beginning prior covenant or agreement made or to and ending after the Closing Date, the portion of such taxable period ending on and including the Closing Date be performed by another Stockholder pursuant to this Agreement; (a "Pre-Closing Period"), (yc) Treasury regulation Section 1.1502-6 (or any comparable provision under state, local or foreign law or regulation imposing several liability upon members of a consolidated, combined, affiliated or unitary group) for any Pre-Closing Period or Tax Liabilities; (zd) any and all Taxes of any person (other than the Company and its Subsidiaries) imposed on the Company or any of its Subsidiaries as a transferee or successor, by contract or pursuant to any law, rule or regulation, which Taxes relate to a Prepre-Closing Period, excluding in Indebtedness not paid at the case of clauses (x), (y) and (z) above, (1) the amount of any Tax that has been specifically taken into account in determining the Adjusted Working Capital on the Final Closing Balance Sheet for purposes of calculating the Final Aggregate Merger Consideration pursuant to Section 2.1(e2.4.1(d) and or Selling Expenses not paid at the Closing pursuant to Section 2.4.1(e); or (2e) any claims relating to allocation of the amount of any Tax to the extent Transaction Consideration among the Stockholders and Optionholders are required to indemnify the Buyer and its affiliates for such Tax pursuant to Section 8.2(a)(ii)(B) hereof and (B) if Optionholders, including any Tax Return required to be filed in connection with any election by the Buyer under Section 338(g) of the Code (inaccuracy or any similar provision of state, local or other law) (the "Section 338 Election") with respect to the Buyer's acquisition of the Company pursuant to the Merger reflects an adjusted tax basis of the goodwill of the Company as of the Closing Date (and prior to the effect of the Section 338 Election) of less than $59,884,000 (based misrepresentation on the reasonable determination of the Buyer, after consultation with Deloitte & Touche LLP, independent certified public accountants for the Buyer, and after consideration of all information concerning the Company that the Buyer deems relevant to such determination), from the excess of (x) the amount of Taxes (including any alternative minimum tax or similar tax under state, local or other law) shown as due on any such Tax Return over (y) the amount of Taxes that would have been shown as due on such Tax Return if such adjusted tax basis had been equal to $59,884,000Allocation Certificate. (b) The Stockholders and Optionholders shall have no obligation under Section 8.2(a)(i) until the aggregate amount of Losses suffered or incurred by the indemnified persons thereunder exceeds $250,000 (the "Deductible"), and thereafter, subject to the next sentence in this Section 8.2(b), the obligation of the Stockholders and Optionholders under Section 8.2(a)(i) shall be for all Losses in excess of the Deductible suffered or incurred by the indemnified persons thereunder; provided that, the Deductible shall not apply to Section 8.2(a)(i)(A) with respect to any breach of any of the representations and warranties in the first sentence of Section 3.3(a) or in Section 3.3(b) and the Stockholders and Optionholders shall indemnify the indemnified persons under Section 8.2(a) for the entire amount of any Loss suffered or incurred by such indemnified persons for or on account of or arising from or in connection with any breach of any of the representations and warranties in the first sentence of Section 3.3(a) or in Section 3.3(b). The obligation of the Stockholders and Optionholders under Sections 8.2(a)(i) and (ii)(A) shall be limited to the lesser of (i) $6,000,000 of the Equity Escrow Fund or (ii) the portion of the Equity Escrow Fund from time to time remaining with the Payment and Escrow Agent under the Payment and Escrow Agreement, and the Stockholders and Optionholders shall have no further obligation under Sections 8.2(a)(i) and (ii)(A) after the earlier of (x) $6,000,000 of the Equity Escrow Fund has been distributed to the Buyer with respect to the obligation of the Stockholders and Optionholders under Sections 8.2(a)(i) and (ii)(A) in accordance with the Payment and Escrow Agreement or (y) the entire Equity Escrow Fund has been otherwise paid or distributed in accordance with the Payment and Escrow Agreement. The obligation of the Stockholders and Optionholders under Section 8.2(a)(ii)(B) shall be limited to the lesser of (i) $2,900,000 of the Equity Escrow Fund or (ii) the portion of the Equity Escrow Fund from time to time remaining with the Payment and Escrow Agent under the Payment and Escrow Agreement, and the Stockholders and Optionholders shall have no further obligation under Section 8.2(a)(ii)(B) after the earlier of (x) $2,900,000 of the Equity Escrow Fund has been distributed to the Buyer with respect to the obligation of the Stockholders and Optionholders under Section 8.2(a)(ii)(B) in accordance with the Payment and Escrow Agreement or (y) the entire Equity Escrow Fund has been otherwise paid or distributed in accordance with the Payment and Escrow Agreement. The obligations of the Stockholders and Optionholders under Section 8.2(a) shall be several, and not joint, in proportion to their respective ownership percentage interests equal to a quotient, expressed as a percentage, obtained by dividing (i) in the case of a Stockholder, the number of shares of Company Common Stock held by such Stockholder immediately prior to the Effective Time or, in the case of an Optionholder, the number of shares of Company Common Stock subject to Company Options outstanding

Indemnification by the Stockholders and Optionholders. (a) The From and after the Effective Time, each of the Stockholders and Optionholders shall jointly and severally indemnify and hold harmless CMS Energy, the Buyer Surviving Corporation and its their subsidiaries, affiliates and successors from and against any and all (a) liabilities, losses, costs or damages ("Loss") and (b) reasonable attorneys', consultants' and accountants' fees and expenses, court costs and all other reason- -66- 77 able out-of-pocket expenses ("Expense") incurred by CMS Energy, the Surviving Corporation and their respective officerssubsidiaries, directors, employees affiliates and agents against and hold them harmless: successors in connection with or arising from (i) from any loss, liability, damage, demand, claim, cost, suit, action breach or cause failure to perform by any Stockholder or Optionholder of action, judgment, award, assessment, interest, penalty or expense (including, without limitation, reasonable expenses of investigation and reasonable attorneys' and consultants' fees) (any of the foregoing being hereinafter referred to individually as a "Loss" and collectively as "Losses") suffered his respective agreements, covenants or incurred by obligations in this Agreement or any such indemnified person for or on account of or arising from or agreement entered into in connection with the transactions contemplated hereby, (ii) any breach or failure to perform by Terra of any of its agreements, covenants or obligations in this Agreement or any agreement entered into in connection with the transactions contemplated hereby, in each case to be performed or complied with prior to or at the Effective Time, and (iii) any breach of any warranty or the inaccuracy of any representation of Terra or any Stockholder or Optionholder contained in this Agreement, as updated in accordance with Section 10.7 hereof, or in any certificate delivered by or on behalf of Terra or any Stockholder or Optionholder pursuant hereto; provided, however, that no Stockholder or Optionholder shall have any obligation to indemnify and hold harmless any indemnified party with respect to any Loss or Expense arising from any breach of a warranty, or inaccuracy of a representation, of any other Stockholder contained in Section 3.3(b) or 3.4(b) or 3.34 or of any other Optionholder contained in Section 3.3(b) or 3.4(b); and provided, further, however, that no Non-Management Stockholder shall have any obligation to indemnify and hold harmless any indemnified party except with respect to (A) any Loss or Expense arising from any breach or failure to perform by such Non-Management Stockholder of any of his respective agreements, covenants or obligations in this Agreement or any agreement entered into in connection with the transactions contemplated hereby, or (B) any breach of a warranty, or inaccuracy of a representation, of such Non-Management Stockholder contained in Section 3.3(b) (first sentence), 3.4(b) or 3.34; and provided, further, however, that, it is understood that if there is a breach or alleged breach of any representation or warranty of the Company contained in this Agreement, (B) any breach of any covenant or agreement of the Company in this Agreement, (C) any claim, suit, action or cause of action brought by or on behalf of any holder of a Company Warrant or any potential holder of a Company Warrant that remains issuable by the Company under the Plan of Reorganization, whether relating pertaining to the Warrant Notice or otherwise or (D) any claim, suit, action or cause of action brought by or on behalf of a Stockholder with respect to the disclosures contained in the Proxy Statement; and (ii) (A) from any and all Taxes imposed upon the Company or any of its Subsidiaries with respect or pursuant to (x) any taxable period ending on or prior to the Closing Date, or with respect to any taxable period beginning prior to and ending after the Closing Date, the portion of such taxable period ending on and including the Closing Date (a "Pre-Closing Period"), (y) Treasury regulation Section 1.1502-6 (or any comparable provision under state, local or foreign law or regulation imposing several liability upon members of a consolidated, combined, affiliated or unitary group) for any Pre-Closing Period or (z) any and all Taxes of any person (other than the Company and its Subsidiaries) imposed on the Company or any of its Subsidiaries as a transferee or successor, by contract or pursuant to any law, rule or regulation, matters which Taxes relate to a Pre-Closing Period, excluding in the case of clauses (x), (y) and (z) above, (1) the amount of any Tax that has been specifically were not taken into account in determining the Adjusted Working Capital on the Final Closing Balance Sheet for purposes of calculating the Final Aggregate Merger Consideration pursuant and such breach or alleged breach does not give rise to an indemnification obligation under Section 2.1(e) 7.2, such breach or alleged breach shall give rise to an indemnification obligation under this Article X; and (2) the amount of any Tax to the extent provided, further, however, that the Stockholders and Optionholders are shall be required to indemnify and hold harmless CMS Energy and the Buyer and its affiliates for such Tax pursuant to Surviving Corporation under this Section 8.2(a)(ii)(B) hereof and (B) if any Tax Return required to be filed in connection with any election by the Buyer under Section 338(g) of the Code (or any similar provision of state, local or other law) (the "Section 338 Election") 10.1 with respect to the Buyer's acquisition breach or inaccuracy of the Company pursuant any representations or warranties as hereinabove provided only to the Merger reflects an adjusted tax basis of the goodwill of the Company as of the Closing Date (and prior to the effect of the Section 338 Election) of less than $59,884,000 (based on the reasonable determination of the Buyer, after consultation with Deloitte & Touche LLP, independent certified public accountants for the Buyer, and after consideration of all information concerning the Company extent that the Buyer deems relevant to such determination), from the excess of (x) the amount of Taxes (including any alternative minimum tax or similar tax under state, local or other law) shown as due on any such Tax Return over (y) the amount of Taxes that would have been shown as due on such Tax Return if such adjusted tax basis had been equal to $59,884,000. (b) The Stockholders and Optionholders shall have no obligation under Section 8.2(a)(i) until the aggregate amount of Losses suffered or incurred by the indemnified persons thereunder exceeds $250,000 (the "Deductible"), Loss and thereafter, subject Expense referred to the next sentence above in this Section 8.2(b)10.1 relating thereto exceeds $300,000, except for any Loss or Expense incurred in connection with or arising from any breach or inaccuracy of the representations and warranties contained in Section 3.3 and 3.4, as to which no such limitation shall apply; and provided further, that the obligation of the Stockholders to indemnify and Optionholders under hold harmless CMS Energy and the Surviving Corporation pursuant to this Section 8.2(a)(i) 10.1 shall be limited to the aggregate payment by such Stockholders of an amount equal to $30,000,000, except for all Losses any Loss or Expense incurred in excess of the Deductible suffered connection with or incurred by the indemnified persons thereunder; provided that, the Deductible shall not apply to Section 8.2(a)(i)(A) with respect to arising from any breach of any or inaccuracy of the representations and warranties contained in the first sentence of Section 3.3(a) or in Section 3.3(b) Sections 3.3 and the Stockholders and Optionholders shall indemnify the indemnified persons under Section 8.2(a) for the entire amount of any Loss suffered or incurred by 3.4, as to which such indemnified persons for or on account of or arising from or in connection with any breach of any of the representations and warranties in the first sentence of Section 3.3(a) or in Section 3.3(b). The obligation of the Stockholders and Optionholders under Sections 8.2(a)(i) and (ii)(A) limitation shall be limited to the lesser of (i) $6,000,000 of the Equity Escrow Fund or (ii) the portion of the Equity Escrow Fund from time to time remaining with the Payment and Escrow Agent under the Payment and Escrow Agreement, and the Stockholders and Optionholders shall have no further obligation under Sections 8.2(a)(i) and (ii)(A) after the earlier of (x) $6,000,000 of the Equity Escrow Fund has been distributed to the Buyer with respect to the obligation of the Stockholders and Optionholders under Sections 8.2(a)(i) and (ii)(A) in accordance with the Payment and Escrow Agreement or (y) the entire Equity Escrow Fund has been otherwise paid or distributed in accordance with the Payment and Escrow Agreement. The obligation of the Stockholders and Optionholders under Section 8.2(a)(ii)(B) shall be limited to the lesser of (i) $2,900,000 of the Equity Escrow Fund or (ii) the portion of the Equity Escrow Fund from time to time remaining with the Payment and Escrow Agent under the Payment and Escrow Agreement, and the Stockholders and Optionholders shall have no further obligation under Section 8.2(a)(ii)(B) after the earlier of (x) $2,900,000 of the Equity Escrow Fund has been distributed to the Buyer with respect to the obligation of the Stockholders and Optionholders under Section 8.2(a)(ii)(B) in accordance with the Payment and Escrow Agreement or (y) the entire Equity Escrow Fund has been otherwise paid or distributed in accordance with the Payment and Escrow Agreement. The obligations of the Stockholders and Optionholders under Section 8.2(a) shall be several, and not joint, in proportion to their respective ownership percentage interests equal to a quotient, expressed as a percentage, obtained by dividing (i) in the case of a Stockholder, the number of shares of Company Common Stock held by such Stockholder immediately prior to the Effective Time or, in the case of an Optionholder, the number of shares of Company Common Stock subject to Company Options outstandingAggregate Consideration.