Common use of Limitation on Indemnity Clause in Contracts

Limitation on Indemnity. Notwithstanding any other provision of this Agreement, the Company shall not be obligated to provide indemnification pursuant to this Agreement: (a) on account of any suit in which a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company in violation of the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto; (b) for Indemnifiable Losses that have been paid directly to Indemnitee by an insurance carrier under a policy of insurance maintained by the Company; (c) on account of Indemnitee’s conduct which is finally adjudged with no further right of appeal to have been intentional misconduct, a knowing violation of law, a violation of RCW 23B.08.310 or any successor provision of the Statute, or a transaction from which Indemnitee derived personal benefit in money, property or services to which Indemnitee was not legally entitled; (d) to the extent that the Indemnitee is indemnified and actually paid otherwise than pursuant to this Agreement; (e) if a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute finding that paying such indemnification is prohibited by applicable law; (f) to the extent that attorneys’ fees, costs and disbursements, or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute, provided that the burden of proof that any Indemnifiable Losses are unreasonable shall be on the Company; or (g) to the extent such Indemnifiable Losses have been incurred by Indemnitee in violation of the terms of Section 5 below.

Limitation on Indemnity. Notwithstanding any other provision of this Agreement, the Company shall not be obligated to provide indemnification No indemnity pursuant to this AgreementAgreement shall be provided by the Company: (a) on On account of any suit in which a final, unappealable decision judgment is rendered by a court having jurisdiction over the parties and the subject matter of the dispute against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company in violation of the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto1934, as amended; (b) for Indemnifiable Losses For Damages that have been paid directly to Indemnitee by an insurance carrier under a policy of insurance maintained by the Company; (c) on With respect to remuneration paid to Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law; (d) On account of Indemnitee’s 's conduct which is finally adjudged with no further right of appeal by a court having jurisdiction in the matter to have been intentional misconduct, a knowing violation of law, a violation of law or the RCW 23B.08.310 or any successor provision of the Statute, or a transaction from which Indemnitee derived an improper personal benefit in money, property or services to which Indemnitee was not legally entitled; (d) to the extent that the Indemnitee is indemnified and actually paid otherwise than pursuant to this Agreementbenefit; (e) if If a final, unappealable final decision is rendered by a court having jurisdiction over in the parties and the subject matter with no further right of the dispute finding appeal shall determine that paying such indemnification is prohibited by applicable law;not lawful (and, in this respect, both the Company and Indemnitee have been advised that the Securities and Exchange Commission (the "SEC") believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication); or (f) In connection with any proceeding (or part thereof) initiated by Indemnitee, or any proceeding by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Company, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the extent that attorneys’ fees, costs and disbursementspowers vested in the Company under the Statute, or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined (iv) the proceeding is initiated pursuant to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute, provided that the burden of proof that any Indemnifiable Losses are unreasonable shall be on the Company; or (g) to the extent such Indemnifiable Losses have been incurred by Indemnitee in violation of the terms of Section 5 below3.3 hereof.

Limitation on Indemnity. Notwithstanding any other provision of this Agreement, the Company shall not be obligated to provide indemnification (other than Expense Advances) pursuant to this Agreement: (a) on account of any suit in which a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company in violation of the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto; (b) for Indemnifiable Losses that actually have been paid directly to Indemnitee by an insurance carrier under a policy of insurance maintained by the Company; (c) on account of Indemnitee’s conduct which is finally adjudged with no further right of appeal to have been intentional misconduct, a knowing violation of law, a violation of RCW 23B.08.310 or any successor provision of the Statute, or a transaction from which Indemnitee derived personal benefit in money, property or services to which Indemnitee was not legally entitled; (d) to the extent that the Indemnitee is actually indemnified and actually paid otherwise than pursuant to this AgreementAgreement [ADDITIONAL CLAUSE TO BE ADDED FOR THESE AGREEMENTS WITH DIRECTORS AFFILIATED WITH VENTURE CAPITAL FUNDS: “, except for any Expense Advances or indemnification payments by Fund Indemnitors as described in Section 2.3”]; (e) if a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute finding that paying such indemnification is prohibited by applicable law; (f) to the extent that attorneys’ fees, costs and disbursements, or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute, provided that the burden of proof that any Indemnifiable Losses are unreasonable shall be on the Company; or (g) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the securities laws of the United States, including but not limited to the extent such Indemnifiable Losses have been incurred by Indemnitee in violation Xxxxxxxx-Xxxxx Act of 2002 and the terms of Section 5 belowXxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.

Limitation on Indemnity. Notwithstanding any other provision of this Agreement, the Company shall not be obligated to provide indemnification pursuant to this Agreement: (a) on On account of any suit in which a final, unappealable decision is rendered against Indemnitee by a court having jurisdiction over the parties and the subject matter of the dispute in which Indemnitee is order to account for an accounting of and forfeit profits made from the purchase or sale by Indemnitee of securities of the Company in violation of the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto1934, as amended; (b) for For Indemnifiable Losses that have been paid directly to or on behalf of Indemnitee by an insurance carrier under a policy of insurance maintained by the Company; (c) on account of Indemnitee’s With respect to conduct by Indemnitee which is finally adjudged with no further right of appeal a final, unappealable judgment by a court having jurisdiction over the parties and the subject matter finds to have been intentional misconduct, a knowing violation of law, a violation of RCW 23B.08.310 or any successor provision of the StatuteAct, or a transaction from which Indemnitee derived personal benefit in money, property or services to which Indemnitee was not legally entitled; (d) to To the extent that the Indemnitee is indemnified and actually paid otherwise than pursuant to this Agreement; (e) if If a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute finding finds that paying such indemnification is prohibited by applicable law; (f) to To the extent that attorneys’ attorneys fees, costs and disbursements, or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the disputematter, provided that the burden of proof that any Indemnifiable Losses are unreasonable in any such determination shall be on the Company; or (g) to To the extent that such Indemnifiable Losses have been incurred by Indemnitee in violation of the terms of Section 5 below.

Limitation on Indemnity. Notwithstanding any other provision of this Agreement, the Company shall not be obligated to provide indemnification pursuant to this Agreement: (a) on account Notwithstanding anything to the contrary set forth herein, but subject to Section 7.5(b) hereof, the Indemnified Parties shall not make a claim against the Company or the Buyer, as applicable, for indemnification for Buyer Losses or Company Losses, as the case may be, under Section 7.1(a)(i) or Section 7.2(a)(i) unless and until the aggregate amount of any suit Buyer Losses or Company Losses, as the case may be, exceeds $200,000 (the “Basket”), in which a finalevent the Indemnified Parties may claim indemnification for all Buyer Losses or Company Losses, unappealable decision is rendered by a court having jurisdiction over as the parties and case may be; provided, however, that the subject matter of Basket shall not apply to Losses with respect to the dispute for an accounting of profits made from Fundamental Representations or the purchase or sale by Indemnitee of securities of the Company in violation of the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto;Special Representations. (b) for Indemnifiable Subject in all cases to Section 7.5(c) hereof: (i) the sum of all Buyer Losses that have been paid directly pursuant to Indemnitee by an insurance carrier under a policy of insurance maintained which indemnification is payable by the CompanyCompany pursuant to Section 7.1(a)(i) hereof (except for Fundamental Representations and Special Representations, for which there shall be no cap) shall not exceed, in the aggregate, the Cap Amount; (ii) the sum of all Company Losses pursuant to which indemnification is payable by the Buyer pursuant to Section 7.2(a)(i) hereof shall not exceed, in the aggregate, $1,000,000. (c) on account of Indemnitee’s conduct which is finally adjudged with In no further right of appeal event shall the Basket and Cap Amount set forth in Section 7.5(a) and (b) hereof apply to have been intentional misconduct, a knowing violation of law, a violation of RCW 23B.08.310 or any successor provision the rights of the StatuteBuyer Indemnified Parties to be indemnified pursuant to Section 7.1(a) hereof for all Buyer Losses suffered, sustained or incurred that arise from, in connection with, or as a transaction from which Indemnitee derived personal benefit in money, property result of fraud or services to which Indemnitee was not legally entitled;willful or intentional breach by the Company. (d) For purposes of (i) determining any inaccuracy in or breach of any representation or warranty and (ii) calculating the amount of Losses incurred arising out of or relating to any breach of a representation or warranty, the extent that the Indemnitee is indemnified and actually paid otherwise than pursuant references to this Agreement;“Material Adverse Effect” or other materiality qualifiers (or correlative terms), including as expressed in accounting concepts, shall be disregarded. (e) Any amount payable pursuant to this Article 7 shall (retroactively if necessary, resulting in a final, unappealable decision is rendered by a court having jurisdiction over prompt refund to the parties and the subject matter of the dispute finding that paying such indemnification is prohibited by applicable law; Indemnifying Party): (fi) be decreased to the extent that attorneys’ feesof any insurance proceeds actually received by the Indemnified Party (or the Company in the case of a claim subject to Section 7.7) in respect of an indemnifiable Company Loss or Buyer Loss, costs as applicable, and disbursements, (ii) be reduced by any actual recoveries from third Persons pursuant to indemnification or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute, provided that the burden of proof that any Indemnifiable Losses are unreasonable shall be on the Company; or (g) to the extent such Indemnifiable Losses have been incurred by Indemnitee in violation of the terms of Section 5 belowrespect thereto.

Limitation on Indemnity. Notwithstanding any other provision of this Agreement, the Company shall not be obligated to provide indemnification (other than Expense Advances) pursuant to this Agreement: (a) on account of any suit in which a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company in violation of the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto; (b) for Indemnifiable Losses that actually have been paid directly to Indemnitee by an insurance carrier under a policy of insurance maintained by the Company; (c) on account of Indemnitee’s conduct which is finally adjudged with no further right of appeal to have been intentional misconduct, a knowing violation of law, a violation of RCW 23B.08.310 or any successor provision of the Statute, or a transaction from which Indemnitee derived personal benefit in money, property or services to which Indemnitee was not legally entitled; (d) to the extent that the Indemnitee is actually indemnified and actually paid otherwise than pursuant to this Agreement; (ed) if a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute finding that paying such indemnification is prohibited by applicable law; (fe) to the extent that attorneys’ ' fees, costs and disbursements, or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute, provided that the burden of proof that any Indemnifiable Losses are unreasonable shall be on the Company; or (gf) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the securities laws of the United States, including but not limited to the extent such Indemnifiable Losses have been incurred by Indemnitee in violation Saxxxxxx-Xxxxx Xct of 2002 and the terms of Section 5 belowDoxx-Xrxxx Xxxx Xtreet Reform and Consumer Protection Act.

Limitation on Indemnity. Notwithstanding any other provision Purchaser and Seller agree, for themselves and on behalf of this Agreementthe Purchaser Indemnitees and Seller Indemnitees, the Company shall not be obligated to provide indemnification pursuant to this Agreementrespectively: (a) on account The amount of any suit and all Losses indemnifiable pursuant to Section 11.2 or Section 11.3 shall be determined net of any amounts recovered by an Indemnified Party under insurance policies or any other collateral sources (such as contractual indemnities of any Person which are contained outside of this Agreement) with respect to such Losses, in each case, net of costs of collection and any increase to premiums resulting from making any claim thereunder. In any case where an Indemnified Party so recovers, under insurance policies or from any other collateral source, any amount in respect of a matter for which a finalsuch Indemnified Party was indemnified pursuant to Section 11.2 or Section 11.3, unappealable decision is rendered by a court having jurisdiction as applicable, not already taken into account pursuant to this Section 11.4(a), such Indemnified Party shall promptly pay over to the parties and applicable Indemnifying Party the subject matter amount so recovered (after deducting therefrom the amount of the dispute for an accounting of profits made from the purchase or sale expenses incurred by Indemnitee of securities such Indemnified Party in procuring such recovery), but not in excess of the Company sum of (A) any amount previously so paid to such Indemnified Party by the Indemnifying Party in violation respect of such matter and (B) any amount expended by the provisions applicable Indemnifying Party in pursuing or defending any claim arising out of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto;such matter. (b) Purchaser Indemnitees shall not be entitled to indemnification pursuant to Section 11.2 or otherwise under this Agreement for Indemnifiable Losses any Loss to the extent (i) attributable to any breach by Purchaser of this Agreement, (ii) attributable to any Pre-Closing Taxes resulting from any action taken by Purchaser or any of its Affiliates (including the Transferred Entities) after the Closing but on the Closing Date outside of the Ordinary Course of Business not otherwise contemplated by this Agreement or (iii) relating to the amount, sufficiency or usability in any taxable period of any net operating loss, capital loss, Tax basis or other Tax asset or other attribute relating to Taxes, or (iv) relating to Taxes for any Post-Closing Tax Period (except as specifically included in the definition of Pre-Closing Taxes). No Indemnified Party shall be entitled to indemnification pursuant to Section 11.2 or Section 11.3 for any Loss to the extent that have been such Loss (or any matter giving rise to such Loss) was taken into account in the Final Purchase Price as finally determined pursuant to Sections 2.6 through 2.8 or the relevant amount was paid directly to Indemnitee by an insurance carrier under a policy of insurance maintained by the Company;Indemnifying Party pursuant to Section 8.3. In no event shall (x) the indemnification obligations of Seller under Section 11.2(g) exceed five million dollars ($5,000,000) and (b) the cumulative indemnification obligation of Seller or Purchaser under this Article XI exceed the Final Purchase Price. (c) on account of Indemnitee’s conduct which is finally adjudged with no further right of appeal Neither Purchaser Indemnitees nor the Seller Indemnitees shall be entitled to have been intentional misconduct, a knowing violation of law, a violation of RCW 23B.08.310 recover for the same Loss more than once under this Article XI or otherwise under this Agreement or any successor provision of the Statute, or a transaction from which Indemnitee derived personal benefit in money, property or services to which Indemnitee was not legally entitled; (d) to the extent that the Indemnitee is indemnified and actually paid otherwise than pursuant to this Agreement; (e) Ancillary Agreement even if a finalclaim for indemnification or otherwise in respect of such Loss has been made as a result of a breach of more than one covenant, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute finding that paying such indemnification is prohibited by applicable law; (f) to the extent that attorneys’ fees, costs and disbursements, agreement or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute, provided that the burden of proof that representation or warranty contained in this Agreement or any Indemnifiable Losses are unreasonable shall be on the Company; or (g) to the extent such Indemnifiable Losses have been incurred by Indemnitee in violation of the terms of Section 5 belowAncillary Agreement.

Limitation on Indemnity. Notwithstanding any other provision of this Agreement, the Company shall not be obligated to provide indemnification (other than Expense Advances) pursuant to this Agreement: (a) on account of any suit in which a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company in violation of the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto; (b) for Indemnifiable Losses that actually have been paid directly to Indemnitee by an insurance carrier under a policy of insurance maintained by the Company; (c) on account of Indemnitee’s conduct which is finally adjudged with no further right of appeal to have been intentional misconduct, a knowing violation of law, a violation of RCW 23B.08.310 or any successor provision of the Statute, or a transaction from which Indemnitee derived personal benefit in money, property or services to which Indemnitee was not legally entitled; (d) to the extent that the Indemnitee is actually indemnified and actually paid otherwise than pursuant to this Agreement; (e) if a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute finding that paying such indemnification is prohibited by applicable law; (f) to the extent that attorneys’ fees, costs and disbursements, or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute, provided that the burden of proof that any Indemnifiable Losses are unreasonable shall be on the Company; or (g) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the securities laws of the United States, including but not limited to the extent such Indemnifiable Losses have been incurred by Indemnitee in violation Xxxxxxxx-Xxxxx Act of 2002 and the terms of Section 5 below.Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act. INDEMNIFICATION AGREEMENT

Limitation on Indemnity. Notwithstanding any other provision of this Agreement, the Company shall not be obligated to provide indemnification (other than Expense Advances) pursuant to this Agreement: (a) on account of any suit in which a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company in violation of the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto; (b) for Indemnifiable Losses that actually have been paid directly to Indemnitee by an insurance carrier under a policy of insurance maintained by the Company; (c) on account of Indemnitee’s 's conduct which is finally adjudged with no further right of appeal to have been intentional misconduct, a knowing violation of law, a violation of RCW 23B.08.310 or any successor provision of the Statute, or a transaction from which Indemnitee derived personal benefit in money, property or services to which Indemnitee was not legally entitled; (d) to the extent that the Indemnitee is actually indemnified and actually paid otherwise than pursuant to this Agreement; (e) if a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute finding that paying such indemnification is prohibited by applicable law; (f) to the extent that attorneys’ ' fees, costs and disbursements, or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute, provided that the burden of proof that any Indemnifiable Losses are unreasonable shall be on the Company; or (g) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the securities laws of the United States, including but not limited to the extent such Indemnifiable Losses have been incurred by Indemnitee in violation Sxxxxxxx-Xxxxx Act of 2002 and the terms of Section 5 belowDxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act.

Limitation on Indemnity. Notwithstanding The Indemnification otherwise available to an Indemnitee under Section 3.2 shall be limited to the extent set forth in this Section 3.3 if such limitation is required by applicable law, including any other provision limitation required in the event that an Indemnitee is found liable to the Corporation or is found liable on the basis that personal benefit was improperly received by the Indemnitee whether or not the benefit resulted from an action taken in Indemnitee’s official capacity, in which case of this Agreement, the Company shall not be obligated to provide indemnification pursuant to this Agreement: being found liable (a) on account of any suit the Indemnitee shall, with respect to the Claim in the Proceeding in which a finalsuch finding is made, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute for an accounting of profits made from the purchase or sale be indemnified only against reasonable Expenses actually incurred by Indemnitee of securities of the Company in violation of the provisions of Section 16(b) of the Securities Exchange Act of 1934 connection with that Claim and amendments thereto; (b) for Indemnifiable Losses that such indemnification will not include judgments, arbitration awards, penalties, fines or excise or similar taxes. Notwithstanding the foregoing, no indemnification against such Expenses shall be made in respect of any Claim in such Proceeding as to which Indemnitee shall have been paid directly adjudged to Indemnitee by an insurance carrier under a policy of insurance maintained by be liable for (i) willful or intentional misconduct in the Company; (c) on account performance of Indemnitee’s conduct which is finally adjudged with no further right duty to the Corporation, (ii) breach of appeal Indemnitee’s duty of loyalty owed to have been intentional misconductthe Corporation or (iii) an act or omission not committed in good faith that constitutes a breach of a duty owed by Indemnitee to the Corporation; provided, a knowing violation of lawhowever, a violation of RCW 23B.08.310 or any successor provision of that, if applicable law so permits, indemnification against such Expenses shall nevertheless be made by the Statute, or a transaction from which Indemnitee derived personal benefit Corporation in money, property or services to which Indemnitee was not legally entitled; (d) such event if and only to the extent that the court (or an arbitrator, if Indemnitee is indemnified and actually paid otherwise than elects to seek arbitration pursuant to this Agreement; (eSection 6.1) if a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute finding that paying in which such indemnification is prohibited by applicable law; (f) to the extent that attorneys’ fees, costs and disbursements, or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute, provided that the burden of proof that any Indemnifiable Losses are unreasonable Proceeding shall be on the Company; or (g) to the extent such Indemnifiable Losses have been incurred by Indemnitee in violation of the terms of Section 5 belowbrought or is pending shall determine.

Limitation on Indemnity. Notwithstanding any other provision of this Agreement, the Company The indemnification provided in Section 2.1 shall not be obligated cover any Losses to provide indemnification pursuant to this Agreementthe extent resulting from: (ai) on account a breach after the Closing Date by FSA or any of its Affiliates of a representation, warranty, certification, covenant or other obligation under the GIC Business Transaction Agreements, the Purchase Agreement or any suit in which a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute for an accounting agreements entered into in connection therewith; (ii) after the Closing Date (A) a failure by FSA, its Affiliates or any of profits made from their respective directors, officers or employees to comply with a reasonable standard of care with respect to their exercise of rights as Secured Party Representative under the purchase Pledge and Administration Agreement or sale (B) any instruction or direction of FSA or its Affiliates with respect to their exercise of rights as Secured Party Representative under the Pledge and Administration Agreement, or any other action (including a failure to take action permitted to be taken by Indemnitee of securities of the Company in violation of Secured Party Representative under the GIC Business Transaction Agreements), which (x) fails to comply (or which directs a third party to take any action that fails to comply) with the provisions of Section 16(bthe GIC Business Transaction Agreements or (y) of the Securities Exchange Act of 1934 and amendments theretoviolates or conflicts with any applicable law, rule or regulation; (biii) for Indemnifiable Losses that have been paid directly to Indemnitee by an insurance carrier under a policy after the Closing Date any bad faith, fraud, negligence or willful misconduct of insurance maintained by the Company; (c) on account of Indemnitee’s conduct which is finally adjudged with no further right of appeal to have been intentional misconductFSA, a knowing violation of law, a violation of RCW 23B.08.310 its Affiliates or any successor provision of the Statutetheir respective directors, officers or a transaction from which Indemnitee derived personal benefit in money, property or services to which Indemnitee was not legally entitled; (d) to the extent that the Indemnitee is indemnified and actually paid otherwise than pursuant to this Agreement; (e) if a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute finding that paying such indemnification is prohibited by applicable law; (f) to the extent that attorneys’ fees, costs and disbursements, or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute, provided that the burden of proof that any Indemnifiable Losses are unreasonable shall be on the Companyemployees; or (giv) any failure of FSA or its Affiliates after the Closing Date to take, and to cause any Indemnified Parties to take, all actions reasonably necessary under the applicable circumstances to mitigate any Losses in respect of which FSA or any other Indemnified Party may seek indemnification hereunder during such period as FSA or such other Indemnified Party is aware or should reasonably have been aware of the claim or circumstances or events giving rise to the extent such Indemnifiable Loss. Any determination that the indemnification provided in Section 2.1 is not available with respect to any Losses have been incurred by Indemnitee in violation as a result of the terms application of this Section 5 below2.2 shall not be deemed a determination with respect to any other Losses and shall not otherwise affect the availability of the indemnification under Section 2.1 for other Losses.

Limitation on Indemnity. (a) Notwithstanding any other provision of this AgreementSection 11, the Company except as set forth below, an Indemnified Party shall not be obligated entitled to provide indemnification pursuant to this Agreement:Section 11.1.1(a), 11.1.1(f) or 11.2.1 (a) on account (other than in connection with a breach or breaches of the representation and warranty set forth in Section 5.5 hereof) (as the case may be), unless and until the aggregate of all Damages to such Indemnified Party exceeds Two Hundred Thousand Dollars ($200,000) (the "Deductible Amount") and then such Indemnified Party shall be entitled to indemnification for all of its Damages in excess of the Deductible Amount; provided however, that Damages in respect of a breach or breaches of the representations and/or warranties set forth in the Cash Certificate shall not be limited by or otherwise subject to the Deductible Amount. In addition, no Indemnified SCT Party shall be entitled to indemnification pursuant to Section 11.1.1(a), arising out of a claimed breach (or breaches) of Section 4.12(b) hereof (insofar as such claim relates to the collectibility of any suit particular Account Receivable) unless SCT has first used its commercially reasonable efforts to collect in which a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company in violation of the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto;full such Account Receivable. (b) for Indemnifiable Losses that have been paid directly Notwithstanding anything to Indemnitee by the contrary contained in this Agreement, the maximum aggregate amount of any Stockholder's indemnification obligation pursuant to this Agreement shall be limited to and in no event exceed such Stockholder's Pro-Rata Share of the Escrow Amount. The maximum aggregate amount of SCT's, Acquisition Sub's and the Surviving Company's indemnification obligation pursuant to this Agreement shall be limited to and in no event exceed an insurance carrier under a policy of insurance maintained by amount equal to the Company;Escrow Amount (the "Cap"). (c) on account of Indemnitee’s conduct which is finally adjudged with no further right of appeal to have been intentional misconductIn addition, a knowing violation of law, a violation of RCW 23B.08.310 or any successor provision of the Statute, or a transaction from which Indemnitee derived personal benefit in money, property or services to which Indemnitee was not legally entitled; (d) notwithstanding anything to the extent that contrary contained in this Agreement, the Indemnitee is indemnified indemnification provided by this Section 11.10 shall be the sole and actually paid otherwise than pursuant exclusive remedy available to the Company, the Stockholders, SCT, Acquisition Sub and the Surviving Company for any claim related to this Agreement; (e) if a final, unappealable decision is rendered by a court having jurisdiction over Agreement or the parties and the subject matter of the dispute finding that paying such indemnification is prohibited by applicable law; (f) to the extent that attorneys’ fees, costs and disbursements, or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute, provided that the burden of proof that any Indemnifiable Losses are unreasonable shall be on the Company; or (g) to the extent such Indemnifiable Losses have been incurred by Indemnitee in violation of the terms of Section 5 belowtransactions contemplated hereby.

Limitation on Indemnity. (a) Notwithstanding any other provision of this Agreement: (i) Seller shall not have any obligation to indemnify Buyer or its assigns pursuant to Section 6 unless and until, and only to the extent that, the Company aggregate of all such individual Damages incurred or sustained by Buyer or its assigns with respect to which Buyer or its assigns are entitled to indemnification under Section 6 exceeds $300,000 (the Basket), in which case the Seller shall be liable for the entire amount of such Damages in excess of $150,000; provided, however, that the foregoing Basket shall not be obligated apply to provide indemnification Damages resulting from a breach by Seller of Sections 2.1.1 and 2.1.3; any matters disclosed pursuant to a Supplement Disclosure Schedule provided under Section 3.1.8 which matters disclosed therein were known by Seller at the signing of this Agreement; any failure by Seller to pay the Excluded Liabilities; the indemnification obligation of Seller under Section 6.8, and any breach by Seller of Section 7.3(a), (b) or (c); any pre-Closing Date liabilities of Seller under the 401(k) Plan Spinoff Plan; and the failure of Seller to pay any license, assignment or transfer fee for the Software in accordance with the provisions of Section 5.4. (ii) the aggregate liability of Seller to indemnity Buyer and its assigns for Damages under Section 6 shall in no event exceed the Purchase Price. (b) Notwithstanding any other provision of this Agreement: (ai) on account Buyer shall not have any obligation to indemnify Seller pursuant to Section 6 unless and until, and only to the extent that, the aggregate of any suit all individual Damages incurred or sustained by Buyer with respect to which Seller is entitled to indemnification under Section 6 exceeds the Basket in which a final, unappealable decision is rendered by a court having jurisdiction over case Buyer shall be liable for the parties and the subject matter entire amounts of the dispute for an accounting of profits made such Damages from the purchase or sale by Indemnitee of securities of the Company in violation of the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto; (b) for Indemnifiable Losses that have been paid directly first dollar; indemnities payable with respect to Indemnitee by an insurance carrier under a policy of insurance maintained by the Company; (c) on account of Indemnitee’s conduct which is finally adjudged with no further right of appeal to have been intentional misconduct, a knowing violation of law, a violation of RCW 23B.08.310 Buyer's obligation to pay and discharge the Assumed Liabilities or fulfill its obligations under the Assumed Contract or any successor provision breach of Section 7.3(d) shall not be subject to any minimum amount; and (ii) the Statuteaggregate liability of Buyer to indemnify Seller for Damages under Section 6 shall in no event exceed the Purchase Price; provided, however, that the foregoing dollar limitation shall not apply to Damages with respect to claims made for breaches of, or a transaction from which Indemnitee derived personal benefit any inaccuracies in, any representation, warranty or covenant made in money, property or services to which Indemnitee was not legally entitled; (d) to the extent that the Indemnitee is indemnified Sections 2.2.1 and actually paid otherwise than pursuant to 2.2.2 of this Agreement; (e) if a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute finding that paying such indemnification is prohibited by applicable law; (f) to the extent that attorneys’ fees, costs and disbursements, or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute, provided that the burden of proof that any Indemnifiable Losses are unreasonable shall be on the Company; or (g) to the extent such Indemnifiable Losses have been incurred by Indemnitee in violation of the terms of Section 5 below.

Limitation on Indemnity. Notwithstanding any other provision of this Agreement, the Company shall not be obligated to provide indemnification pursuant to this Agreement: (a) on account of any suit in which a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company in violation of the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto; (b) for Indemnifiable Losses that have been paid directly to Indemnitee by an insurance carrier under a policy of insurance maintained by the Company; (c) on account of Indemnitee’s 's conduct which is finally adjudged with no further right of appeal to have been intentional misconduct, a knowing violation of law, a violation of RCW 23B.08.310 or any successor provision of the Statute, or a transaction from which Indemnitee derived personal benefit in money, property or services to which Indemnitee was not legally entitled; (d) to the extent that the Indemnitee is indemnified and actually paid otherwise than pursuant to this Agreement; (e) if a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute finding that paying such indemnification is prohibited by applicable law; (f) to the extent that attorneys’ ' fees, costs and disbursements, or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute, provided that the burden of proof that any Indemnifiable Losses are unreasonable shall be on the Company; or (g) to the extent such Indemnifiable Losses have been incurred by Indemnitee in violation of the terms of Section 5 below.

Limitation on Indemnity. (i) There shall be no amount payable by the Company Stockholders from the Escrow Account pursuant to the indemnification obligations under Section 10.2(a)(i), unless and until the cumulative amount of all Damages determined to have been incurred by the Parent Indemnified Parties as a result of all such breaches exceeds $1,500,000 (the “Deductible”); (and then only for those Damages in excess of such amount), provided that individual claims involving Damages of $15,000 or less shall not be subject to indemnity hereunder or included in the Deductible or in the calculation of Damages for any reason. (ii) Notwithstanding any other provision of anything else to the contrary contained in this Agreement, the maximum aggregate amount of Damages for which indemnity may be recovered from the Company Stockholders arising out of or resulting from the causes enumerated in Section 10.2(a)(i) shall be an amount equal to the Escrow Amount (i.e., $10,000,000) (the “Cap”), and the Parent Indemnified Parties shall have no recourse against any assets of the Company Stockholders or any of their respective Affiliates for Damages for which indemnity may be recovered pursuant to Section 10.2(a)(i) other than the funds held in the Escrow Account in an amount not to exceed the Cap (i.e., $10,000,000). (iii) The amount of any Damages claimed by any Parent Indemnified Party hereunder shall be net of any allowances and reserves provided in the Financial Statements or the notes thereto that are identified with respect thereto. (iv) The amount of any Damages claimed by any Parent Indemnified Party hereunder shall be net of any insurance, indemnity, contribution or other payments or recoveries of a like nature with respect thereto (it being agreed that, promptly after the realization of any such reductions of Damages pursuant hereto, such Parent Indemnified Party shall reimburse the Escrow Account for such reduction in Damages for which such Parent Indemnified Party was indemnified prior to the realization of such reductions of Damages). Parent shall use its reasonable best efforts to (i) cause the Parent Indemnified Parties to seek the benefits of any insurance, indemnity, contribution or other payments or recoveries of a like nature applicable to such Damages and (ii) otherwise mitigate the amount of Damages. (v) In the event that an Indemnifying Party can establish that an Indemnified Party had actual knowledge, on or before the Closing, of a breach of a representation, warranty, covenant or agreement of the Indemnifying Party upon which a claim for indemnification by the Indemnified Party is based, then the Indemnifying Party shall have no liability for any Damages resulting from or arising out of such claim. (vi) An Indemnified Party shall not be obligated entitled to provide indemnification pursuant to this Agreement:multiple recovery for the same Damages. (avii) on account In determining the amount of indemnification due under this ARTICLE 10, (i) all payments shall be net of any suit actual Tax benefit that may be available to the Indemnified Party and (ii) all payments for claims relating to Taxes with respect to periods prior to the Closing Date shall be net of any actual Tax benefits that may be available in which periods following the Closing Date attributable to the carryover of any net operating loss from a finalpre-Closing Date period to a post-Closing Date period. (viii) If an Indemnified Party recovers Damages from an Indemnifying Party under this ARTICLE 10, unappealable decision is rendered by a court having jurisdiction over the parties and Indemnifying Party shall be subrogated, to the extent of such recovery, to the Indemnified Party’s rights against any third party with respect to such recovered Damages subject matter to the subrogation rights of any insurer providing insurance coverage under one of the dispute for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company in violation of the provisions of Section 16(b) of the Securities Exchange Act of 1934 Indemnified Party’s policies and amendments thereto; (b) for Indemnifiable Losses that have been paid directly to Indemnitee by an insurance carrier under a policy of insurance maintained by the Company; (c) on account of Indemnitee’s conduct which is finally adjudged with no further right of appeal to have been intentional misconduct, a knowing violation of law, a violation of RCW 23B.08.310 or any successor provision of the Statute, or a transaction from which Indemnitee derived personal benefit in money, property or services to which Indemnitee was not legally entitled; (d) except to the extent that the Indemnitee is indemnified and actually paid otherwise than pursuant grant of subrogation rights to this Agreement; (e) if a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter of the dispute finding that paying such indemnification Indemnifying Party is prohibited by applicable law; (f) to the extent that attorneys’ fees, costs and disbursements, or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute, provided that the burden of proof that any Indemnifiable Losses are unreasonable shall be on the Company; or (g) to the extent such Indemnifiable Losses have been incurred by Indemnitee in violation of the terms of Section 5 belowthe applicable insurance policy.

Limitation on Indemnity. (a) Notwithstanding Section 8.2(a), except in the case of Damages arising out of or in connection with a breach of the provisions of Section 2.13, the Equityholders shall not have any obligation to indemnify a Kenexa Indemnified Party under Section 8.2(a) unless and until the aggregate of all Damages suffered by all such Kenexa Indemnified Parties hereunder exceeds $150,000 (the “Aggregate Loss Threshold”), whereupon, the Equityholders shall be liable to indemnify the Kenexa Indemnified Parties for all Damages, without regard to the Aggregate Loss Threshold. (b) Notwithstanding anything in this Article VIII to the contrary, no Indemnified Party or its successors or assigns shall have any right or entitlement to indemnification from any Indemnitor for any Damages relating to any matter arising under the provisions of this Agreement, to the extent that any such Indemnified Party or its successors and assigns had already recovered Damages with respect to the same matter pursuant to any other provision of this Agreement, the Company and such Indemnified Parties shall be deemed to have waived and released any claims for such Damages and shall not be obligated entitled to provide assert any such claim for indemnification pursuant to this Agreement: (a) on account of any suit in which a final, unappealable decision is rendered by a court having jurisdiction over for such Damages. Without limiting the parties and the subject matter generality of the dispute for foregoing, the operation of Section 2.13 is an accounting of profits made from the purchase or sale by Indemnitee of securities exclusive remedy in respect of the Company assets and liabilities and related items taken into account in violation connection with the determination of the provisions Closing Working Capital, and no Kenexa Indemnified Party shall be entitled to any additional recourse in respect thereof, whether arising from a breach of representation or warranty or otherwise other than for breaches of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto; (b) for Indemnifiable Losses that have been paid directly to Indemnitee by an insurance carrier under a policy of insurance maintained by the Company;2.13. (c) Any payments made pursuant to this Article VIII shall constitute an adjustment to the Total Merger Consideration for Tax purposes and shall be treated as such by Parent, Kenexa Technology, the Company, Acquisition Sub and the Surviving Corporation on account of Indemnitee’s conduct which is finally adjudged with no further right of appeal to have been intentional misconduct, a knowing violation of law, a violation of RCW 23B.08.310 or any successor provision of the Statute, or a transaction from which Indemnitee derived personal benefit in money, property or services to which Indemnitee was not legally entitled; (d) their Tax Returns to the extent that the Indemnitee is indemnified and actually paid otherwise than pursuant to this Agreement; (e) if a final, unappealable decision is rendered permitted by a court having jurisdiction over the parties and the subject matter of the dispute finding that paying such indemnification is prohibited by applicable law; (f) to the extent that attorneys’ fees, costs and disbursements, or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute, provided that the burden of proof that any Indemnifiable Losses are unreasonable shall be on the Company; or (g) to the extent such Indemnifiable Losses have been incurred by Indemnitee in violation of the terms of Section 5 below.

Limitation on Indemnity. (a) Notwithstanding any other provision of this Agreementthe foregoing, the Company an Indemnitor shall not be obligated to provide indemnification pursuant indemnify an Indemnified Party under SECTIONS 9.2(a) or (b) unless and until the aggregate of all Damages suffered by such Indemnified Parties hereunder exceeds $200,000 (the "THRESHOLD AMOUNT"), whereupon, provided the other requirements of this ARTICLE IX have been complied with, the full amount of Damages in excess of such Threshold Amount, and all subsequent Damages, shall become due and payable. Notwithstanding the foregoing, no Threshold Amount shall apply to this Agreement: (ai) on account the obligations of any suit in which party hereto to the extent a finalbreach results from fraud, unappealable decision is rendered by a court having jurisdiction over intentional misrepresentation or intentional concealment or (ii) the parties and the subject matter several obligations of the dispute for an accounting Stockholders provided in Section 5 of profits made from the purchase or sale by Indemnitee of securities of the Company in violation of the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto;each Stockholder Support Agreement. (b) for Indemnifiable Losses that have been paid directly Notwithstanding anything to Indemnitee the contrary contained in this Agreement or in any other agreement or document delivered pursuant hereto, the indemnification obligations of the Stockholders pursuant to this ARTICLE IX or otherwise shall be limited to the amount and assets deposited and present in the Escrow Account and, in the case of indemnification claims pursuant to clauses (iii) and (iv) of SECTION 9.2(a) relating to breaches by an insurance carrier under a policy of insurance maintained by the Company; (c) on account of Indemnitee’s conduct which is finally adjudged with no further right of appeal to have been intentional misconduct, a knowing violation of law, a violation of RCW 23B.08.310 or any successor provision individual Stockholder of the Statuterepresentations, warranties and covenants in his, her or a transaction its Stockholder Support Agreement or Release, shall be limited to the number of Escrowed Shares held in the Escrow Account on behalf of such breaching Stockholder; PROVIDED, HOWEVER, that with respect to breaches by an individual Stockholder of the representations, warranties and covenants in his, her or its Release, Parent shall be entitled to indemnification from all Escrowed Shares. Parent shall not be entitled to pursue any claims for indemnification under this ARTICLE IX or otherwise against the Stockholders directly or personally, and the sole and exclusive recourse of Parent shall be to make claims against the Escrow Account in accordance with the terms of this Agreement and the Escrow Agreement, except claims for Damages with respect to (i) breaches resulting from fraud, intentional misrepresentation or intentional concealment, which Indemnitee derived personal benefit in moneyclaims, property or services to which Indemnitee was not legally entitled; (d) to the extent that they exceed the Indemnitee is indemnified and actually paid otherwise than pursuant to this Agreement; (e) if a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter amount of the dispute finding Escrow Account (or in the case of a breaching Stockholder, such breaching Stockholder's portion of the Escrow Account), may be pursued by Parent only against the party or parties that paying are determined to have committed such indemnification is prohibited breaches and (ii) breaches by applicable law; (f) an individual Stockholder of the obligations set forth in Section 5 of his, her or its Stockholder Support Agreement, which claims, to the extent that attorneys’ fees, costs and disbursements, or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over they exceed the parties and the subject matter amount of the dispute, provided that the burden of proof that any Indemnifiable Losses are unreasonable shall be on the Company; or (g) to the extent such Indemnifiable Losses have been incurred by Indemnitee in violation breaching Stockholder's portion of the terms Escrow Account, may be pursued by Parent only against such breaching Stockholder. The total indemnity obligations of Section 5 belowParent shall not exceed $7,000,000.

Limitation on Indemnity. Notwithstanding any other provision of The indemnification otherwise available to Indemnitee under Section 2.2 shall be limited to the extent set forth in this Agreement, Section 2.3. In the Company shall not be obligated event that Indemnitee is found liable to provide indemnification pursuant to this Agreement: the Corporation or is found liable because Indemnitee improperly received a personal benefit (a) on account of any suit Indemnitee shall, with respect to the Claim in the Proceeding in which a finalsuch finding is made, unappealable decision is rendered be indemnified only against reasonable Expenses actually incurred by a court having jurisdiction over the parties him/her in connection with that Claim and the subject matter of the dispute for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company in violation of the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto; (b) for Indemnifiable Losses that such indemnification will not include judgments, arbitration awards, mediation amounts, penalties, fines, excise or similar taxes, including excise taxes assessed against him/her with respect to an employee benefit plan. Notwithstanding the foregoing, no indemnification against such Expenses shall be made in respect of any Claim in such Proceeding as to which Indemnitee shall have been paid directly adjudged to Indemnitee by an insurance carrier under a policy be liable for (a) willful or intentional misconduct in the performance of insurance maintained by his/her duty to the Company; Corporation, (b) breach of his/her duty of loyalty owed to the Corporation, or (c) on account an act or omission not committed in good faith that constitutes a breach of Indemnitee’s conduct which is finally adjudged with no further right of appeal a duty owed by him/her to have been intentional misconductthe Corporation; provided, a knowing violation of lawhowever, a violation of RCW 23B.08.310 or any successor provision of that indemnification against such Expenses shall nevertheless be made by the Statute, or a transaction from which Indemnitee derived personal benefit in money, property or services to which Indemnitee was not legally entitled; (d) Corporation to the extent that the Indemnitee is indemnified and actually paid otherwise than pursuant to this Agreement; (e) if a final, unappealable decision is rendered by a court having jurisdiction over the parties and the subject matter may order in accordance with Title 1, Chapter 8 of the dispute finding that paying such indemnification is prohibited by TBOC (or any successor provision) or any other applicable law; (f) to the extent that attorneys’ fees, costs and disbursements, or similar expenses, that otherwise would constitute Indemnifiable Losses hereunder are determined to be unreasonable by a final, unappealable decision rendered by a court having jurisdiction over the parties and the subject matter of the dispute, provided that the burden of proof that any Indemnifiable Losses are unreasonable shall be on the Company; or (g) to the extent such Indemnifiable Losses have been incurred by Indemnitee in violation of the terms of Section 5 below.. Expenses