Common use of Limitations on Indemnification of Buyer Clause in Contracts

Limitations on Indemnification of Buyer. The indemnification of the Buyer Indemnitees provided for in this Agreement shall be subject to the following limitations: (a) (i) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(a) shall be required to be made by delivering notice to Seller on or before the nine (9) month anniversary of the Closing Date; (ii) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(b) may be made at any time on or prior to the four (4) year anniversary of the Closing Date; (iii) any covenants or obligations described in Section 8.1(d) shall survive in accordance with their terms; (iv) any claim by a Buyer Indemnitee for indemnification pursuant to Sections 8.1(e), 8.1.(f), 8.1(g), 8.1(h), and/or 8.1(i) may be made at any time following the Closing Date; (v) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(c) shall survive until ninety (90) days following the expiration of the applicable statute of limitations; and (vi) claims related to fraud may be made at any time following the Closing Date. (b) Notwithstanding anything to the contrary, the Buyer Indemnitees shall not be entitled to recover from Seller under this Article 8 with respect to claims pursuant to Section 8.1(a) unless and until the aggregate amount of all Losses suffered or incurred by all Buyer Indemnitees under Section 8.1(a) exceeds $500,000 (the "Basket"). Once the aggregate amount of Losses suffered or incurred by the Buyer Indemnitees pursuant to Section 8.1(a) exceeds the Basket, the Buyer Indemnitees shall be entitled to indemnification only for the amount of all claims for Losses in excess of the Basket made by the Buyer Indemnitees pursuant to Section 8.1(a) (and subject to the other limitations contained herein). For purposes of clarity, in no event shall the Basket apply with respect to any Losses relating to a claim for indemnification pursuant to Sections 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in the case of fraud. (c) The maximum liability of Seller under Section 8.1(a) (other than with respect to fraud) shall in no event exceed an aggregate amount equal to $1,000,000 (the "General Cap"). For purposes of clarity, in no event shall the General Cap apply with respect to any Losses relating to a claim for indemnification pursuant to Sections 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in the case of fraud. (d) The limitations set forth in this Section 8.2 shall in no way limit the rights of the Buyer Indemnitees in the case of fraud.

Limitations on Indemnification of Buyer. The Notwithstanding any other provisions of this Agreement, the indemnification of the Buyer Indemnitees provided for in Section 9.1 of this Agreement shall be subject to the following limitations: limitations and conditions set forth in this Section 9.2. (a) (i) Except as set forth below, any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(a9.1(a) of this Agreement shall be required to be made by delivering notice to Seller on or before Sellers’ Representative no later than the nine expiration of one (91) month anniversary of year after the Closing Date; . Notwithstanding the foregoing, (iii) any claim by a Buyer Indemnitee for indemnification pursuant to based upon, resulting from or arising out of any inaccuracy in or breach of any representation or warranty made by any Seller in Article 3, Section 8.1(b) 4.2 [Capital Stock] or Section 4.20 [Brokerage] may be made at any time on or prior without limitation as to the four time; and (4) year anniversary of the Closing Date; (iii) any covenants or obligations described in Section 8.1(d) shall survive in accordance with their terms; (ivii) any claim by a Buyer Indemnitee for indemnification pursuant to Sections 8.1(e)based upon, 8.1.(f), 8.1(g), 8.1(h), and/or 8.1(i) resulting from or arising out of any inaccuracy in or breach of any representation or warranty made by any Seller in Section 4.8 [Taxes] may be made at any time following the Closing Date; (v) any claim by a Buyer Indemnitee for indemnification pursuant prior to Section 8.1(c) shall survive until ninety (90) days following the expiration of the applicable statute of limitations; and (vi) claims related to fraud may be made at any time following the Closing Date. (b) Notwithstanding anything Except for claims for indemnification in respect of breaches of representations and warranties contained in Article 3 or Sections 4.2 [Capital Stock] or 4.20 [Brokerage] or in respect of matters disclosed in a supplemental Disclosure Schedule provided by Sellers under Section 8.1.6 and which matters disclosed thereon were, To Sellers’ Knowledge, known as of the signing of this Agreement (which claims are not subject to the contraryIndemnification Threshold), the Buyer Indemnitees shall not be entitled to recover from Seller indemnification under this Article 8 with respect to claims pursuant to Section 8.1(a9.1(a) unless and or 9.1(d) until the aggregate amount of all Losses suffered of Buyer Indemnitees’ claims for indemnification under Section 9.1(a) and 9.1(d) exceeds an amount equal to Two Million Dollars ($2,000,000) (the “Indemnification Threshold”) and thereafter Buyer Indemnitees shall be entitled to indemnification under Sections 9.1(a) and 9.1(d) only for amounts in excess of the Indemnification Threshold. (c) Except for claims for indemnification in respect of breaches of representations and warranties contained in Article 3 or incurred Sections 4.2 [Capital Stock] or 4.20 [Brokerage] or in respect of matters disclosed in a supplemental Disclosure Schedule provided by all Sellers under Section 8.1.6 and which matter disclosed thereon was, To Sellers’ Knowledge, known as of the signing of this Agreement (which claims are not subject to the Aggregate Indemnification Limit), the maximum indemnification amount to which Buyer Indemnitees may be entitled under Section 9.1(a) and 9.1(d) shall be an amount equal to Ten Million Dollars ($10,000,000) (the “Aggregate Indemnification Limit”); provided, however, notwithstanding the foregoing, that the maximum amount which Buyer Indemnitees under Section 8.1(a9.1(a) exceeds $500,000 or 9.1(d), other than a claim made on account of breach of a representation or warranty contained in Article 3, may recover from any individual Seller with respect to any particular claim shall be limited to an amount equal to such Seller’s pro rata share of such claim determined in accordance with the allocations set forth on Schedule 2.7 hereto, and the maximum amount which Buyer may recover from any individual Seller with respect to all claims asserted under Section 9.1(a) and 9.1(d) (in the "Basket"). Once aggregate) which are subject to the aggregate Aggregate Indemnification Limit shall be limited to Seller’s pro rata share of the Aggregate Indemnification Limit, determined in accordance with the allocations set forth on Schedule 2.7. (d) Claims for indemnification under this Article shall be net of the amount of Losses suffered any (i) tax benefits realized by Buyer (determined on a net present value basis) in connection with the circumstances that give rise to the actual or incurred alleged breach of Sellers’ representations and warranties under this Agreement, and net of any cost, tax or other detriment, or expense of or to Buyer in obtaining such tax benefits, and (ii) recoveries under any insurance policy in connection with the circumstances that give rise to the actual or alleged breach of Sellers’ representations and warranties under this Agreement held by Buyer or any of its Affiliates, and after taking into account any detriment, including (x) the reasonable cost and expenses of pursuing such recovery, (y) the deductible associated therewith and (z) the amount of all retropremium obligations. Buyer shall make the Company’s books and records relating such claims available to Sellers’ Representative and make the Company’s employees available for interviews and similar matters to assist Sellers’ Representative with respect to such claims. (e) All claims for indemnification by the Buyer Indemnitees pursuant to Section 8.1(a9.1 shall be limited to actual and incidental damages, liabilities, losses and expenses (including reasonable attorneys’ and accounting fees) exceeds the Basket, the incurred. The Buyer Indemnitees shall not be entitled to indemnification only assert a claim for the amount of all claims for Losses in excess of the Basket made by the Buyer Indemnitees pursuant to Section 8.1(a) (and subject punitive, exemplary or any similar type damages, other than to the other limitations contained herein)extent the same are awarded to a third party and are part of a Third-Party Claim. For purposes of clarity, in no In the event shall the Basket apply with respect to any Losses relating to that a Buyer Indemnitee makes a claim for indemnification pursuant which is determined by a court of competent jurisdiction to Sections 8.1(b)be frivolous, 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(isuch Buyer Indemnitee shall bear all reasonable costs and expenses (including court costs and reasonable attorneys’ and accounting fees) or incurred by Sellers in the case of fraudinvestigating and defending against such claim. (c) The maximum liability of Seller under Section 8.1(a) (other than with respect to fraud) shall in no event exceed an aggregate amount equal to $1,000,000 (the "General Cap"). For purposes of clarity, in no event shall the General Cap apply with respect to any Losses relating to a claim for indemnification pursuant to Sections 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in the case of fraud. (d) The limitations set forth in this Section 8.2 shall in no way limit the rights of the Buyer Indemnitees in the case of fraud.

Limitations on Indemnification of Buyer. (a) The indemnification of the Buyer Indemnitees provided for in this Agreement shall be subject to the following limitations: (a) (i) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(a9.1(a) of this Agreement shall be required to be made by delivering notice of such claim to Seller Sellers’ Representative on or before the nine twenty-four (924) month anniversary of the Closing Date; date hereof; and (ii) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(b9.1(b) may of this Agreement shall be required to be made by delivering notice of such claim to Sellers’ Representative at any time on or prior to the four ten (410) year anniversary of the Closing Date; (iii) any covenants or obligations described Date; provided, however, that in Section 8.1(d) shall survive in accordance with their terms; (iv) any claim by a Buyer Indemnitee for indemnification pursuant to Sections 8.1(e), 8.1.(f), 8.1(g), 8.1(h), and/or 8.1(i) each case Fraud Claims may be made at any time following the Closing Date; (v) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(c) shall survive until ninety (90) days following the expiration of the applicable statute of limitations; and (vi) claims related to fraud may be made at any time following the Closing Datetime. (b) Notwithstanding anything to the contrary, The indemnification of the Buyer Indemnitees provided for in this Agreement shall further be subject to the following limitations: (a) Sellers shall not be entitled liable to recover from Seller the Buyer Indemnitees for indemnification under this Article 8 Section 9.1(a) (other than with respect to claims pursuant to Section 8.1(a) unless and a Fraud Claim), until the aggregate amount of all Losses suffered or incurred by all Buyer Indemnitees in respect of indemnification under Section 8.1(a) exceeds $500,000 (the "Basket"). Once the aggregate amount of Losses suffered or incurred by the Buyer Indemnitees pursuant to Section 8.1(a) exceeds the Basket, the Buyer Indemnitees shall be entitled to indemnification only for the amount of all claims for Losses in excess of the Basket made by the Buyer Indemnitees pursuant to Section 8.1(a) (and subject to the other limitations contained herein). For purposes of clarity, in no event shall the Basket apply with respect to any Losses relating to a claim for indemnification pursuant to Sections 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in the case of fraud. (c) The maximum liability of Seller under Section 8.1(a9.1(a) (other than with respect to frauda Fraud Claim) shall in no event exceed an aggregate amount equal to exceeds $1,000,000 50,000 (the "General Cap"“Basket Amount”). For purposes of clarity, in no event which case the Sellers shall be obligated to provide indemnification only to the General Cap apply with respect extent such Losses are in excess of the Basket Amount, subject to any Losses relating to a claim for indemnification pursuant to Sections 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in the case of fraud. (d) The other limitations set forth in this Section 8.2 shall in no way limit 9.2; (b) with respect to the rights Sellers’ indemnity obligations under Section 9.1(a), other than with respect to Fraud Claims, the aggregate liability of the Sellers to indemnify the Buyer Indemnitees from and against any Losses shall not exceed $3,000,000 (the “Cap”); and (c) in no event shall the Sellers’ aggregate indemnity obligations pursuant to the indemnity provided under Section 9.1 exceed $21,000,000, except in the case event of fraudany Fraud Claim.

Limitations on Indemnification of Buyer. The Notwithstanding any other provision of this Agreement, the indemnification of the Buyer Indemnitees provided for in this Agreement shall be subject to the following limitations: limitations and conditions set forth in this Section 9.2. (a) (i) any Any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(a) 9.1 shall be required to be made by delivering notice to Seller on or before Sellers’ Representative no later than the nine expiration of eighteen (918) month anniversary of months after the Closing Date. Notwithstanding the foregoing, (i) any claim for indemnification based upon, arising out of or caused by (A) any inaccuracy in or breach of any representation or warranty in Section 3.1 [Authority and Capacity], Section 3.2 [Ownership of Securities], Section 3.3 [Execution and Delivery; Enforceability], Section 4.2 [Capital Stock] or Section 4.19 [Brokerage] or (B) a breach of any covenant contained herein (except for the covenants in Section 8.1 [Pre-Closing Covenants and Agreements] which shall expire at the Closing (other than the covenants in Section 8.1.7 and 8.1.9 which shall not expire and shall survive the Closing) and for the covenants described in clause (ii) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(b) below which shall survive as provided in such clause), may be made at any time on or prior subject to the four limitations, if any, contained in such sections; and (4) year anniversary of the Closing Date; (iii) any covenants or obligations described in Section 8.1(d) shall survive in accordance with their terms; (ivii) any claim by a Buyer Indemnitee for indemnification pursuant to Sections 8.1(e)based upon, 8.1.(f), 8.1(g), 8.1(h), and/or 8.1(iarising out of or caused by (y) any inaccuracy in or breach of any representation or warranty made in Section 4.7 [Taxes] or Section 4.9 [Employee Benefit Plans and Other Compensation Arrangements] or (z) any covenant contained in Article 10 may be made at any time following the Closing Date; prior to thirty (v) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(c) shall survive until ninety (9030) days following after the expiration of the applicable statute of limitations; and limitations (vi) claims related to fraud may be made at any time following the Closing Dateincluding valid extensions thereof). (b) Notwithstanding anything to Except for claims for indemnification under Section 9.1 based upon, arising out of or caused by (i) any inaccuracy in or breach of any representation or warranty in Section 3.1 [Authority and Capacity], Section 3.2 [Ownership of Securities], Section 3.3 [Execution and Delivery; Enforceability], Section 4.2 [Capital Stock] or Section 4.19 [Brokerage] or (ii) any breach of any covenant herein (except for the contrarycovenants in Section 8.1 [Pre-Closing Covenants and Agreements] which shall expire at the Closing (other than the covenants in Section 8.1.7 and 8.1.9 which shall not expire and shall survive the Closing)), the Buyer Indemnitees shall not be entitled to recover from Seller under this Article 8 with respect to claims pursuant to Section 8.1(a) unless and indemnification until the aggregate amount of all Losses suffered or incurred by all of Buyer Indemnitees under Section 8.1(a) exceeds $500,000 (the "Basket"). Once the aggregate amount of Losses suffered or incurred by the Buyer Indemnitees pursuant to Section 8.1(a) Indemnitees’ claims for indemnification exceeds the Basket, the Indemnification Threshold and thereafter Buyer Indemnitees shall be entitled to indemnification only for the amount of all claims for Losses amounts in excess of the Basket made by Indemnification Threshold. Notwithstanding the Buyer Indemnitees pursuant to Section 8.1(a) (and subject to the other limitations contained herein). For purposes of clarityforegoing, in no event shall the Basket apply with respect to any Losses relating to a claim for indemnification pursuant to Sections 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in the case of fraud. (c) The maximum liability of Seller under Section 8.1(a) (other than claims for indemnification with respect to fraud(y) any inaccuracy or breach of any representation or warranty in Section 4.7 [Taxes] or Section 4.9 [Employee Benefit Plans and Other Compensation Arrangements] or (z) any covenant contained in Article 10, Buyer Indemnitees shall in no event exceed an not be entitled to indemnification until the aggregate amount equal to $1,000,000 (the "General Cap"). For purposes of clarity, in no event shall the General Cap apply Buyer Indemnitees’ claims for indemnification with respect to any Losses relating Section 4.7 [Taxes], Section 4.9 [Employee Benefit Plans and Other Compensation Arrangements] or Article 10 exceeds the Taxes and ERISA Threshold and thereafter Buyer Indemnitees shall be entitled to a claim indemnification only for indemnification pursuant to Sections 8.1(b)amounts in excess of the Taxes and ERISA Threshold. Notwithstanding the foregoing, 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in the case of fraud. (d) The limitations set forth in this Section 8.2 9.2(b) shall not apply in no way limit the rights event and to the extent that any Buyer Indemnitee has an indemnification claim for Taxes hereunder as a result of a disallowance or reduction of any Closing Deduction with respect to which Buyer has made a payment to Sellers’ Account pursuant to Section 8.4, provided, that the Tax Benefit Deductible shall apply and shall be taken into consideration to the benefit of Sellers and Beneficial Sellers in determining the amount of any Loss for any such claim. (c) Except for claims for indemnification under Section 9.1 based upon, arising out of or caused by (i) any inaccuracy in or breach of any representation or warranty in Section 3.1 [Authority and Capacity], Section 3.2 [Ownership of Securities], Section 3.3 [Execution and Delivery; Enforceability], Section 4.2 [Capital Stock] or Section 4.19 [Brokerage], or (ii) any breach of any covenant herein (other than the covenants provided for in the following proviso), the maximum indemnification amount to which Buyer Indemnitees may be entitled under this Agreement shall be Seven Million Dollars ($7,000,000); provided, however, the Buyer Indemnitees expressly understand and agree that any Losses for claims relating to Taxes, including the covenants set forth in Article 10 and for the covenants in Section 8.1 [Pre-Closing Covenants and Agreements] which shall expire at the Closing (except for the covenants in Section 8.1.7 and 8.1.9 which shall not expire and shall survive the Closing) is included in the foregoing $7,000,000 cap amount. Notwithstanding the foregoing, the limitations set forth in this Section 9.2(c) shall not apply in the event and to the extent that any Buyer Indemnitee has an indemnification claim for Taxes hereunder as a result of a disallowance or reduction of any Closing Deduction with respect to which Buyer has made a payment to Sellers’ Account pursuant to Section 8.4, provided, that the Tax Benefit Deductible shall apply and shall be taken into consideration to the benefit of Sellers and Beneficial Sellers in determining the amount of any Loss for any such claim. (d) For purposes of determining the amount of any Loss arising from a breach of or inaccuracy in any representation, warranty, covenant or obligation of Sellers, Beneficial Sellers or Sellers’ Representative in this Agreement but not for purposes of determining whether any such representation, warranty, covenant or obligation has been breached or is inaccurate, limitations or qualifications as to dollar amount, materiality or Material Adverse Effect (or similar concept) set forth in such representation, warranty, covenant or obligation shall be disregarded. (e) Any claims for indemnification under Section 9.1 shall be net of the amount of any actual recoveries (i) under any insurance policy covering such indemnifiable Losses of which Buyer or any of its Subsidiaries (including the Acquired Companies) is a beneficiary in connection with the circumstances that give rise to the claim for indemnification (and Buyer shall and shall cause the Acquired Companies to, use commercially reasonable efforts in pursuing full recovery under all such insurance policies); and (ii) under “pass-through” warranty coverage from a manufacturer or other third party that are actually received by Buyer or any of its Subsidiaries (including the Acquired Companies) in connection with the circumstances that give rise to the claim for indemnification, but neither Buyer nor any Acquired Company shall be obligated to pursue such warranty coverage. (f) Any claims for indemnification under Section 9.1 or 9.3 shall be made on an after tax basis. Accordingly, in determining the amount of any indemnification payment for a Loss suffered or incurred by an indemnitee hereunder, the amount of such Loss shall be decreased to take into account any deduction or credit, basis increase, shifting of income, or other Tax benefit actually realized by any indemnitee (or any Affiliate of any indemnitee) in connection with the Losses that form the basis of the indemnitee’s claim for indemnification hereunder (the “Tax Benefit Adjustment Amount”). In computing the Tax Benefit Adjustment Amount, the indemnitee shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnification payment hereunder or the incurrence or payment of any indemnifiable Loss; provided, that, if a Tax Benefit Adjustment Amount is not realized in the taxable period during which an indemnifying party makes an indemnification payment or the indemnitee incurs or pays any Loss, the parties hereto shall thereafter make payments to one another at the end of each subsequent taxable period to reflect the Tax Benefit Adjustment Amount realized by the parties hereto in each such subsequent taxable period. (g) The Buyer Indemnitees shall not be entitled to indemnification under this Agreement if, and to the extent that, the Losses are reflected on the Final Adjustment Statement. (h) Notwithstanding anything else contained herein to the contrary, to the extent that any of the Buyer Indemnitees have an indemnification right under the 2004 Purchase Agreement (a “Prior Claim”), the Buyer Indemnitees shall use commercially reasonable efforts in pursuing all remedies to obtain full satisfaction of such Prior Claim pursuant to the case terms of fraudthe 2004 Purchase Agreement with the survival periods set forth in Section 9.2(a) tolling while the Buyer Indemnitees are pursuing such remedies. The Buyer Indemnitees shall promptly submit all Prior Claims to the applicable parties pursuant to the terms of the 2004 Purchase Agreement and notify Sellers’ Representative with respect to same. (i) Any claims for indemnification under Section 9.1 based upon, arising out of or caused by (y) any inaccuracy in or breach of any representation or warranty made in Section 4.7 [Taxes] or (z) any covenant contained in Article 10 shall be net of any Tax benefit realized by any Buyer Indemnitee (or any Affiliate of any Buyer Indemnitee) as a result of or in connection with the Closing Deductions to the extent that such Tax benefit is in excess of the Tax Benefit Deductible and has not otherwise been paid to Sellers pursuant to Section 8.4 hereof.

Limitations on Indemnification of Buyer. The Notwithstanding any other provision of this Agreement, the indemnification of the Buyer Indemnitees provided for in this Agreement shall be subject to the following limitations: limitations and conditions: (a) Any claim by a Buyer Indemnitee for indemnification pursuant to Sections 9.1(c) or Section 9.1(d) shall be required to be made by delivering notice to Sellers’ Representative no later than the close of business on the fifteen (i15) month anniversary of the Closing Date; any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(a9.1(a) or 9.1(b) shall be required to be made by delivering notice to Seller on or before the nine (9) month anniversary of the Closing Date; (ii) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(b) may be made at any time on or prior to the four (4) year anniversary of the Closing Date; (iii) any covenants or obligations described in Section 8.1(d) shall survive in accordance with their terms; (iv) any claim by a Buyer Indemnitee for indemnification pursuant to Sections 8.1(e), 8.1.(f), 8.1(g), 8.1(h), and/or 8.1(i) may be made at any time following the Closing Date; (v) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(c) shall survive until ninety (90) Sellers’ Representative no later than 60 days following after the expiration of the applicable statute of limitations; and limitations (vi) claims related to fraud may be made at any time following either such date, as applicable, being the Closing “Survival Date.”), (b) Notwithstanding anything Except with respect to the contraryindemnification pursuant to Section 9.1(b) or pursuant to Section 9.1(a) based upon a breach of Section 3.2 (neither of which shall be subject to any threshold amount), the Buyer Indemnitees shall not be entitled to recover from Seller under this Article 8 with respect to claims pursuant to Section 8.1(a) unless and indemnification until the aggregate amount of all Losses suffered or incurred by all of Buyer Indemnitees under Section 8.1(a) Indemnitees’ claims for indemnification exceeds $500,000 (the "Basket"“Indemnification Threshold Amount”). Once the aggregate amount of Losses suffered or incurred by the Buyer Indemnitees pursuant to Section 8.1(a) exceeds the BasketThereafter, the Buyer Indemnitees shall be entitled to indemnification only for the amount of all claims for Losses amounts in excess of the Basket made by the Buyer Indemnitees pursuant to Section 8.1(a) (and subject to the other limitations contained herein). For purposes of clarity, in no event shall the Basket apply with respect to any Losses relating to a claim for indemnification pursuant to Sections 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in the case of fraudIndemnification Threshold Amount. (c) The Except as hereafter provided, the maximum indemnification amount to which Buyer Indemnitees may be entitled under this Agreement shall be the Escrow Amount and the maximum liability of any Seller under Section 8.1(a) (other than with respect 9.1 shall be such Seller’s Prorata Share of the Escrow Amount. Notwithstanding the foregoing, the maximum indemnification amount to fraud) shall in no event exceed an aggregate amount equal to $1,000,000 (the "General Cap"). For purposes of clarity, in no event shall the General Cap apply with respect to any Losses relating to a claim for indemnification which Buyer Indemnitees may be entitled pursuant to Sections 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(iSection 9.1(b) or pursuant to Section 9.1(a) based upon a breach of Section 3.2 shall be the Purchase Price and the maximum liability of any Seller in that case shall be such Seller’s Prorata Share of the case of fraudPurchase Price. (d) The limitations set forth amount of any Losses recoverable by Buyer shall be reduced by the net effect of any tax-related benefits or insurance coverage which may be realized in this Section 8.2 shall in no way limit the rights respect of the Buyer Indemnitees in the case of fraudsuch Losses.

Limitations on Indemnification of Buyer. The indemnification of the Buyer Indemnitees provided for in this Agreement shall be subject to the following limitations: : (a) (i) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(a) shall be required to be made by delivering notice to Seller Sellers on or before the nine eighteen (9) month 18)-month anniversary of the Closing Date, provided that any claim by a Buyer Indemnitee for indemnification with respect to a breach of or inaccuracy in any representation or warranty in Section 3.5 (Taxes) shall be required to be made by delivering notice to Sellers at any time prior to sixty (60) days following the expiration of the applicable statute of limitations (including valid extensions thereof); (ii) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(b) may shall be required to be made by delivering notice to Sellers at any time on or prior to sixty (60) days following the four (4) year anniversary expiration of the Closing Date; applicable statute of limitations (including valid extensions thereof), (iii) any covenants or obligations described in Section 8.1(c) or Section 8.1(d) shall survive in accordance with their terms; terms until sixty (60) days following the expiration of any applicable statute of limitations, and (iv) any claim by a Buyer Indemnitee for indemnification pursuant to Sections 8.1(e), 8.1.(f), 8.1(g), 8.1(h), and/or 8.1(i) may be made at any time following the Closing Date; (v) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(c) shall survive until ninety (90) days following the expiration of the applicable statute of limitations; and (vi) claims related to fraud Fraud may be made at any time following the Closing Date. (b) Notwithstanding anything to the contrary, the Buyer Indemnitees shall not be entitled to recover from Seller Sellers under this Article 8 with respect to claims pursuant to Section 8.1(a) unless and until (x) the amount of any individual Loss (aggregating all Losses arising from multiple claims arising from the same or substantially similar or related facts or circumstances) exceeds $[* * *] and (y) the aggregate amount of all Losses suffered or incurred by all Buyer Indemnitees under Section 8.1(a) that satisfy the foregoing clause (x) exceeds $500,000 [* * *] of the Purchase Price (the "Basket"“Deductible”). Once the aggregate amount of Losses suffered or incurred by the Buyer Indemnitees pursuant to Section 8.1(a) exceeds the BasketDeductible, the Buyer Indemnitees shall be entitled to indemnification only for the amount of all claims for Losses in excess of the Basket Deductible made by the Buyer Indemnitees pursuant to Section 8.1(a) (and subject to the other limitations contained herein). For purposes of clarity, in no event shall the Basket Deductible apply with respect to any Losses relating to a claim for indemnification pursuant to Sections 8.1(b), 8.1(c), ) through 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in the case of fraudfor Fraud. (c) The maximum liability of Seller Sellers under Section 8.1(a) (other than with respect to frauda Fraud claim) shall in no event exceed an aggregate amount equal to $1,000,000 ([* * *] of the "General Cap")Purchase Price. For purposes The maximum aggregate liability of clarity, Sellers under Section 8.1 shall in no event shall exceed an aggregate amount equal to the General Cap apply with respect to any Losses relating to a claim for indemnification pursuant to Sections 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in the case of fraudPurchase Price. (d) The limitations set forth in this Section 8.2 shall in no way limit the rights of the Buyer Indemnitees in the case of fraud.

Limitations on Indemnification of Buyer. The In addition to the other limitations set forth herein, including the limitations set forth in Sections 7.1 and 7.4, Buyer's right to indemnification of the Buyer Indemnitees provided for in pursuant to this Agreement shall be Article VII is subject to the following limitations: : (a) No indemnification shall be made unless the aggregate amount of Losses sustained by Buyer Indemnitees under Sections 7.1(1) and (i5) (such amount, "Buyer Losses") exceeds $250,000 and, in such event, indemnification shall be made only to the extent Buyer Losses exceed $250,000 (it being understood that any claim by Buyer Losses sustained prior to the expiration of a Survival Period shall continue to be counted for purposes of this Section 7.5(a) in determining whether Buyer Indemnitee for is entitled to indemnification). The limitation under the first sentence of this Section 7.5(a) shall not apply to Buyer's right to indemnification pursuant to Section 8.1(a7.1(2), (3) shall be required to be made by delivering notice to Seller on or before the nine (9) month anniversary of the Closing Date; (ii) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(b) may be made at any time on or prior to the four and (4) year anniversary of (it being understood that in all such cases, Buyer shall be entitled to seek indemnity immediately) and any Losses for which the Closing Date; (iii) any covenants or obligations described in Section 8.1(d) Buyer is indemnified under such sections shall survive in accordance with their terms; (iv) any claim by a not count towards determining whether Buyer Indemnitee for indemnification pursuant to Sections 8.1(e), 8.1.(f), 8.1(g), 8.1(h), and/or 8.1(i) may be made at any time following the Closing Date; (v) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(c) shall survive until ninety (90) days following the expiration of the applicable statute of limitations; and (vi) claims related to fraud may be made at any time following the Closing DateLosses exceed $250,000. (b) Notwithstanding anything to the contrarycontrary herein, the Buyer Indemnitees shall not be entitled parties hereto agree that any amounts payable under or pursuant to recover from Seller under this Article 8 with respect to claims VII (other than pursuant to Section 8.1(a7.1(5)) unless to any Buyer Indemnitee or in respect of any Buyer Losses (including any settlement of any Indemnifiable Claims in accordance with Section 7.3(c)) will be paid solely out of the Escrow Account, in accordance with this Agreement and until the aggregate amount Escrow Agreement, and none of all Losses suffered the Selling Shareholders will have any obligation to make (or incurred by all Buyer Indemnitees under Section 8.1(aotherwise with respect to) exceeds $500,000 (any such payments other than from the "Basket")Escrow Account. Once In addition, notwithstanding anything to the aggregate amount of Losses suffered contrary herein, the parties hereto agree that any amounts payable or incurred by the Buyer Indemnitees pursuant to Section 8.1(a7.1(5) exceeds the Basket, the to any Buyer Indemnitees shall Indemnitee or in respect of Buyer Losses (including any settlement of any Indemnifiable Claims in accordance with Section 7.3(c)) will be entitled to indemnification only for the amount of all claims for Losses in excess solely out of the Basket made by Escrow Account and the Buyer Indemnitees pursuant Glendale Escrow Account in accordance with this Agreement and the Escrow Agreement, and none of the Selling Shareholders will have any obligation to Section 8.1(a) (and subject to the other limitations contained herein). For purposes of clarity, in no event shall the Basket apply make or otherwise with respect to any Losses relating to a claim for indemnification pursuant to Sections 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in such payments other than from the case of fraudEscrow Account and the Glendale Escrow Account. (c) The maximum liability amount of Seller any Buyer Losses shall be reduced by any amount received by Buyer Indemnitees with respect thereto under Section 8.1(a) (any insurance coverage or for any other than party alleged to be responsible therefor. Buyer Indemnitees shall use commercially reasonable efforts to collect any amounts available under such insurance coverage and from such other party alleged to have responsibility. If a Buyer Indemnitee receives an amount under insurance coverage or from such other party with respect to fraud) shall in no event exceed an aggregate amount equal to $1,000,000 (the "General Cap"). For purposes of clarity, in no event shall the General Cap apply with respect Buyer Losses at any time subsequent to any Losses relating to a claim for indemnification pursuant to Sections 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in the case of fraud. (d) The limitations set forth in this Section 8.2 7.5, then such Buyer Indemnitee shall promptly reimburse the Escrow Account for any payment made, including expenses incurred, from the Escrow Account in no way limit the rights of connection with providing such indemnification up to such amount received by the Buyer Indemnitees in the case of fraudIndemnitee.

Limitations on Indemnification of Buyer. (a) The indemnification of the Buyer Indemnitees provided for in this Agreement shall be subject to the following limitations: (a) (i) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(a9.1(a) of this Agreement shall be required to be made by delivering notice of such claim to Seller Sellers’ Representative on or before the nine twenty-four (924) month anniversary of the Closing Datedate hereof; and (ii) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(b9.1(b) may of this Agreement shall be required to be made by delivering notice of such claim to Sellers’ Representative at any time on or prior to the four ten (410) year anniversary of the Closing Date; (iii) any covenants or obligations described provided, however, that in Section 8.1(d) shall survive in accordance with their terms; (iv) any claim by a Buyer Indemnitee for indemnification pursuant to Sections 8.1(e), 8.1.(f), 8.1(g), 8.1(h), and/or 8.1(i) each case Fraud Claims may be made at any time following the Closing Date; (v) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(c) shall survive until ninety (90) days following the expiration of the applicable statute of limitations; and (vi) claims related to fraud may be made at any time following the Closing Datetime. (b) Notwithstanding anything to the contrary, The indemnification of the Buyer Indemnitees provided for in this Agreement shall further be subject to the following limitations: (a) Sellers shall not be entitled liable to recover from Seller the Buyer Indemnitees for indemnification under this Article 8 Section 9.1(a) (other than with respect to claims pursuant to Section 8.1(a) unless and a Fraud Claim), until the aggregate amount of all Losses suffered or incurred by all Buyer Indemnitees in respect of indemnification under Section 8.1(a) exceeds $500,000 (the "Basket"). Once the aggregate amount of Losses suffered or incurred by the Buyer Indemnitees pursuant to Section 8.1(a) exceeds the Basket, the Buyer Indemnitees shall be entitled to indemnification only for the amount of all claims for Losses in excess of the Basket made by the Buyer Indemnitees pursuant to Section 8.1(a) (and subject to the other limitations contained herein). For purposes of clarity, in no event shall the Basket apply with respect to any Losses relating to a claim for indemnification pursuant to Sections 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in the case of fraud. (c) The maximum liability of Seller under Section 8.1(a9.1(a) (other than with respect to frauda Fraud Claim) shall in no event exceed an aggregate amount equal to exceeds $1,000,000 50,000 (the "General Cap"“Basket Amount”). For purposes of clarity, in no event which case the Sellers shall be obligated to provide indemnification only to the General Cap apply with respect extent such Losses are in excess of the Basket Amount, subject to any Losses relating to a claim for indemnification pursuant to Sections 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in the case of fraud. (d) The other limitations set forth in this Section 8.2 shall in no way limit 9.2; (b) with respect to the rights Sellers’ indemnity obligations under Section 9.1(a), other than with respect to Fraud Claims, the aggregate liability of the Sellers to indemnify the Buyer Indemnitees from and against any Losses shall not exceed $3,000,000 (the “Cap”); and (c) in no event shall the Sellers’ aggregate indemnity obligations pursuant to the indemnity provided under Section 9.1 exceed $21,000,000, except in the case event of fraudany Fraud Claim.

Limitations on Indemnification of Buyer. The Notwithstanding any other provision of this Agreement, the indemnification of the Buyer Indemnitees provided for in this Agreement shall be subject to the following limitations: limitations and conditions set forth in this Section 9.2. (a) (i) any Any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(a9.1(a) or Section 9.1(c) shall be required to be made by delivering notice to Seller on or before Sellers’ Representative no later than the nine (9) month anniversary expiration of one year after the Closing Date; (ii) , and no claim may be brought after the Closing Date for breach of any covenant in Section 8.1 [Pre-Closing Covenants and Agreements] which covenants expire at the Closing. Notwithstanding the foregoing, any claim by a Buyer Indemnitee for indemnification pursuant to based upon, arising out of or caused by any inaccuracy in or breach of any representation or warranty in Section 8.1(b3.1 [Authority; Capacity and Representation], Section 3.2 [Ownership of Securities], Section 3.3 [Execution and Delivery; Enforceability], Section 4.2 [Capital Stock] or Section 4.4(c) [Brokerage], may be made at any time on or prior to the four (4) year anniversary of the Closing Date; (iii) any covenants or obligations described in Section 8.1(d) shall survive in accordance with their terms; (iv) any claim by a Buyer Indemnitee for indemnification pursuant to Sections 8.1(e), 8.1.(f), 8.1(g), 8.1(h), and/or 8.1(i) may be made at any time following the Closing Date; (v) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(c) shall survive until ninety (90) days following the expiration of the applicable statute of limitations; and (vi) claims related to fraud may be made at any time following the Closing Datetime. (b) Notwithstanding anything to the contraryExcept for claims for indemnification under Section 9.1(a) based upon, the arising out of or caused by any inaccuracy in or breach of any representation or warranty in Section 3.1 [Authority; Capacity and Representation], Section 3.2 [Ownership of Securities], Section 3.3 [Execution and Delivery; Enforceability], Section 4.2 [Capital Stock] or Section 4.4(c) [Brokerage], Buyer Indemnitees shall not be entitled to recover from Seller indemnification under this Article 8 with respect to claims pursuant to Section 8.1(a9.1(a) unless and until the aggregate amount of all Losses suffered or incurred by all of such Buyer Indemnitees Indemnitees’ claims for indemnification under Section 8.1(a) exceeds $500,000 (the "Basket"). Once the aggregate amount of Losses suffered or incurred by the Buyer Indemnitees pursuant to Section 8.1(a) such section exceeds the Basket, the Indemnification Threshold and thereafter Buyer Indemnitees shall be entitled to indemnification under such section only for the amount of all claims for Losses amounts in excess of the Basket made by Indemnification Threshold; provided, however, that the Buyer Indemnitees pursuant to Section 8.1(a) (and subject to Indemnification Threshold shall not apply in the other limitations contained herein). For purposes event of clarity, in no event shall the Basket apply any fraud or intentional misrepresentation with respect to any Losses relating representation or warranty by Sellers in Article 3 or the Company in Article 4, in which case Buyer Indemnitees may recover the full amount of all such Losses. Buyer Indemnitees shall not be entitled to a claim {P02534_X101.HTM;8} indemnification under Section 9.1(c) until the aggregate amount of all of such Buyer Indemnitees’ claims for indemnification pursuant under such section exceeds Two Hundred Fifty Thousand Dollars ($250,000) and thereafter Buyer Indemnitees shall be entitled to Sections 8.1(bindemnification under such section only for amounts in excess of Two Hundred Fifty Thousand Dollars ($250,000); provided, however, that the $250,000 limitation shall not apply in the event of any fraud or intentional misrepresentation with respect to the indemnification matter enumerated in Section 9.1(c), 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in which case Buyer Indemnitees may recover the case full amount of fraudall such Losses. (c) The maximum liability of Seller Except for claims for indemnification under Section 8.1(a9.1(a) (other than with respect based upon, arising out of or caused by any inaccuracy in or breach of any representation or warranty in Section 3.1 [Authority; Capacity and Representation], Section 3.2 [Ownership of Securities], Section 3.3 [Execution and Delivery; Enforceability], Section 4.2 [Capital Stock] or Section 4.4(c) [Brokerage], the maximum indemnification amount to fraudwhich Buyer Indemnitees may be entitled under Section 9.1(a) and Section 9.1(c) shall be Six Million Dollars ($6,000,000); provided, however, that the foregoing limitation shall not apply in no the event exceed an aggregate amount equal to $1,000,000 (the "General Cap"). For purposes of clarity, in no event shall the General Cap apply any fraud or intentional misrepresentation with respect to any Losses relating to a claim for indemnification pursuant to Sections 8.1(b)representation or warranty by Sellers in Article 3 or the Company in Article 4, 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in which case Buyer Indemnitees may recover the case full amount of fraudall such Losses. (d) The limitations set forth Buyer Indemnitees shall not be entitled to indemnification under this Agreement if, and to the extent that, the Losses are reflected on the Final Adjustment Statement. (e) For purposes of determining the amount of Losses resulting from any misrepresentation or breach of a representation or warranty contained herein, all qualifications or exceptions in any representation or warranty relating to or referring to the terms “material,” “materiality,” “in all material respects,” “Material Adverse Effect” or any similar term or phrase shall be disregarded, it being the understanding of the parties that for purposes of determining Losses, the representations and warranties of the parties contained in this Section 8.2 Agreement shall be read as if such terms and phrases were not included in no way limit the rights of the Buyer Indemnitees in the case of fraudthem.

Limitations on Indemnification of Buyer. The (a) Notwithstanding any other provision of this Agreement, the indemnification of the Buyer Indemnitees provided for in this Agreement shall be subject to the following limitations: limitations and conditions set forth in this Section 9.2. (a1) (i) Except as set forth below, any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(a9.1(a) shall be required to be made by delivering notice to Seller on or before no later than the nine expiration of twelve (912) month anniversary of months after the Closing Date; . Notwithstanding the foregoing, (iiA) any claim by a Buyer Indemnitee for indemnification pursuant to based upon, resulting from or arising out of fraud or any inaccuracy in or breach of any representation or warranty in Section 8.1(b) 3.1 [Authority and Capacity], Section 3.2 [Ownership of Shares], Section 3.3 [Execution and Delivery; Enforceability], Section 4.2 [Capitalization] or Section 4.17 [Brokerage] may be made at any time on or prior to the four and (4) year anniversary of the Closing Date; (iii) any covenants or obligations described in Section 8.1(d) shall survive in accordance with their terms; (ivB) any claim by a Buyer Indemnitee for indemnification pursuant to Sections 8.1(e)based upon, 8.1.(f), 8.1(g), 8.1(h), and/or 8.1(i) resulting from or arising out of any inaccuracy in or breach of any representation or warranty in Section 4.7 [Taxes] may be made at any time following the Closing Date; (v) any claim by a Buyer Indemnitee for indemnification pursuant prior to Section 8.1(c) shall survive until ninety (90) days following the expiration of the applicable statute of limitations. (2) Except for claims for indemnification in respect of fraud or breaches of representations and warranties contained in 3.1 [Authority and Capacity], Section 3.2 [Ownership of Shares], Section 3.3 [Execution and Delivery; Enforceability], Section 4.2 [Capitalization], Section 4.7 [Taxes]or Section 4.17 [Brokerage], Buyer Indemnitees shall not be entitled to indemnification for any claim pursuant to Section 9.1(a) until the aggregate amount of all such claims exceed the Indemnification Threshold and thereafter Buyer Indemnitees shall be entitled to indemnification only for amounts in excess of the Indemnification Threshold. (vi3) Except for claims related for indemnification in respect of fraud or breaches of representations and warranties contained in 3.1 [Authority and Capacity], Section 3.2 [Ownership of Shares], Section 3.3 [Execution and Delivery; Enforceability], Section 4.2 [Capitalization], Section 4.7 [Taxes] or Section 4.17 [Brokerage], the maximum indemnification amount to fraud which Buyer Indemnitees may be made at any time following entitled under Section 9.1(a) of this Agreement shall be the Closing DateIndemnification Cap. (b) Notwithstanding anything to the contraryany other provision of this Agreement, the Buyer Indemnitees shall not be entitled to recover from Seller under this Article 8 indemnification hereunder if, and to the extent that, any one or more of the following circumstances apply: (1) In connection with any claim for indemnification hereunder with respect to claims pursuant to Section 8.1(a) unless and until the aggregate amount which any of all Losses suffered or incurred by all Buyer Indemnitees under Section 8.1(a) exceeds $500,000 (the "Basket"). Once the aggregate amount of Losses suffered or incurred by the Buyer Indemnitees pursuant has an enforceable right of indemnification, warranty or right of set-off against any third party (contractual or otherwise). (2) Any insurance proceeds received by any of Buyer Indemnities in connection with the facts or circumstances giving rise to Section 8.1(a) exceeds the Basket, the such indemnification (and Buyer Indemnitees shall be entitled seek full recovery under all insurance policies covering any Losses to the same extent as they would if such Losses were not subject to indemnification only for the amount of all claims for Losses in excess of the Basket made by the Buyer Indemnitees pursuant to Section 8.1(a) (and subject to the other limitations contained hereinunder this Agreement). For purposes of clarity, in no event shall the Basket apply with respect to any Losses relating to a claim for indemnification pursuant to Sections 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in the case of fraud. (c) The maximum liability of Seller under Section 8.1(a) (other than with respect to fraud) shall in no In the event exceed an aggregate amount equal to $1,000,000 (the "General Cap"). For purposes of clarity, in no event shall the General Cap apply with respect to any Losses relating to that a Buyer Indemnitee makes a claim for indemnification pursuant that is determined by a court of competent jurisdiction to Sections 8.1(b)be without reasonable basis in law or fact, 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in the case of fraud. (d) The limitations set forth in this Section 8.2 shall in no way limit the rights of the Buyer Indemnitees shall bear all reasonable costs and expenses (including court costs and reasonable attorneys’ and accounting fees) incurred by Seller in the case of fraudinvestigating and defending against such claim.

Limitations on Indemnification of Buyer. The Notwithstanding the --------------------------------------- foregoing, the right of Buyer Indemnified Parties to indemnification of the Buyer Indemnitees provided for in this Agreement under Section 9.01 shall be subject to the following limitations: provisions: (a) Subject to the exceptions set forth in Subsection 9.02(d): (i) the aggregate amount for which the Buyer Indemnified Parties may be indemnified under Subsections 9.01(b) and 9.01(c) of this Agreement shall not exceed an amount equal to Seven Million, Seven Hundred Thousand Dollars ($7,700,000) (the "Cap"); (ii) the aggregate amount for which the Buyer Indemnified Parties may be --- indemnified under Subsections 9.01(b), 9.01(c) and 9.01(d) of this Agreement shall not exceed Thirteen Million Dollars ($13,000,000). (b) Subject to the exceptions set forth in Subsection 9.02(d), no indemnification shall be payable pursuant to Subsection 9.01(b) above to any claim by a Buyer Indemnitee Indemnified Party, unless the cumulative amount of all claims for indemnification pursuant to Section 8.1(a9.01 ("Buyer Claims") shall exceed Five Hundred Thousand Dollars ($500,000) (the ------------ "Deductible"), whereupon only the amount of such claims in excess of such ---------- Deductible shall be recoverable by the Buyer Indemnified Parties from the Escrow Account. For the sole purpose of calculating the amount of Buyer Claims arising out of any breach of any representation or warranty made by the Company, references to a Company Material Adverse Effect or materiality (or other correlative terms) shall be required disregarded. (c) Subject to the exceptions set forth in Subsection 9.02(d), no indemnification shall be made by delivering notice payable to Seller on or before a Buyer Indemnified Party from the nine Escrow Account with respect to claims under Subsection 9.01(b) which are asserted after the date which is eighteen (918) month anniversary of months after the Closing Date (the "Expiration ---------- Date"); (ii) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(b) may be made at any time provided that if on or prior to the four (4) year anniversary Expiration Date a specific state of the Closing Date; (iii) any covenants or obligations described in Section 8.1(d) ---- -------- facts shall survive in accordance with their terms; (iv) any claim by a Buyer Indemnitee for indemnification pursuant to Sections 8.1(e), 8.1.(f), 8.1(g), 8.1(h), and/or 8.1(i) have become known which may be made at any time following the Closing Date; (v) any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1(c) shall survive until ninety (90) days following the expiration of the applicable statute of limitations; and (vi) claims related to fraud may be made at any time following the Closing Date. (b) Notwithstanding anything to the contrary, the Buyer Indemnitees shall not be entitled to recover from Seller under this Article 8 with respect to claims pursuant to Section 8.1(a) unless and until the aggregate amount of all Losses suffered or incurred by all Buyer Indemnitees under Section 8.1(a) exceeds $500,000 (the "Basket"). Once the aggregate amount of Losses suffered or incurred by the Buyer Indemnitees pursuant to Section 8.1(a) exceeds the Basket, the Buyer Indemnitees shall be entitled to indemnification only for the amount of all claims for Losses in excess of the Basket made by the Buyer Indemnitees pursuant to Section 8.1(a) (and subject to the other limitations contained herein). For purposes of clarity, in no event shall the Basket apply with respect to any Losses relating give rise to a claim for indemnification pursuant under Subsection 9.01(b) and a Buyer Indemnified Party shall have given written notice to Sections 8.1(b)the Representatives of such facts known by such Buyer Indemnified Party at such time, 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in then the case of fraud. (c) The maximum liability of Seller under Section 8.1(a) (other than right to indemnification with respect to fraud) such claim shall remain in no event exceed an aggregate amount equal effect without regard to $1,000,000 (the "General Cap"). For purposes of clarity, in no event when such matter shall the General Cap apply with respect to any Losses relating to a claim for indemnification pursuant to Sections 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f), 8.1(g), 8.1(h), and/or 8.1(i) or in the case of fraudbe finally determined and disposed of. (d) The limitations contained in Subsections 9.02(a), 9.02(b) and 9.02(c) of this Section 9.02 shall not apply to (i) the indemnification obligations arising under Subsection 9.01(a) or (ii) breaches by the Company of a representation or warranty contained in Subsection 2.03(a). The limitations contained in Subsection 9.02(b) of this Section 9.02 shall not apply to (i) adjustments required to be made pursuant to Sections 1.13 and 1.14, (ii) claims with respect to a post-Closing unpaid portion of the Company-Paid Transaction Expenses made pursuant to Section 10.01, or (iii) breaches by the Company of a representation or warranty contained in Section 2.29. The limitations contained in Subsections 9.02(b) and 9.02(c) of this Section 9.02 shall not apply to the indemnification obligations arising under Subsections 9.01(c) and 9.01(d). The obligation to indemnify the Buyer Indemnified Parties with respect to claims under Subsection 9.01(a) or pursuant to a breach by the Company of a representation or warranty contained in Subsection 2.03(a) shall remain in full force and effect until the date which is one (1) day after the expiration of the statute of limitations applicable to any such claim. The obligation to indemnify the Buyer Indemnified Parties with respect to claims under Subsection 9.01(c) shall remain in full force and effect until the earlier of (w) the date on which Option Holders of one hundred percent (100%) of all outstanding Incentive Stock Options and Non-Qualified Stock Options shall have agreed to the amendment or termination of their Incentive Stock Options and Non-Qualified Stock Options to permit treatment as set forth in Section 1.05(b)(ii) hereof and (x) the later of (1) the latest expiration date of any outstanding Incentive Stock Option or Non-Qualified Stock Option and (2) that date which is nine (9) months after the latest exercise of any outstanding Incentive Stock Option or Non-Qualified Stock Option; provided that if on or prior to such later date a specific state of -------- facts shall have become known which may give rise to a claim for indemnification under Subsection 9.01(c) and a Buyer Indemnified Party shall have given written notice to the Representatives of such facts known by such Buyer Indemnified Party at such time, then the right to indemnification with respect to such claim shall remain in effect without regard to when such matter shall be finally determined and disposed of. Upon the later of the Expiration Date or the date on which the HIG Dispute shall have been fully and finally resolved, an amount equal to the lesser of (i) the then current balance of the Escrow Amount and (ii) the sum of (A) the amount of pending Buyer Claims plus (B) an amount equal to five (5) times the Option Purchase Price payable in respect of all Incentive Stock Options and Non-Qualified Stock Options then outstanding or exercised after the Closing shall be retained in the Escrow Account to be available to indemnify Buyer in respect of such claims and all other amounts held in the Escrow Account shall be delivered to the Equityholders in accordance with the terms of the Escrow Agreement. As more particularly described in the Escrow Agreement, such amount retained in the Escrow Account shall be delivered to the Equityholders in accordance with the terms of the Escrow Agreement upon the later of (1) the latest expiration date of any outstanding Incentive Stock Option or Non-Qualified Stock Option, (2) that date which is nine (9) months after the latest exercise of any outstanding Incentive Stock Option or Non-Qualified Stock Option, or (3) the full and final resolution of the HIG Dispute. As more particularly provided in the Escrow Agreement, the Equityholders shall become entitled to receive distributions from the Escrow Amount upon the full and final resolution of the HIG Dispute or either of the two components thereof: the "consent" component, which is the subject of Count One of the Company's First Amended Verified Complaint filed with the Court on November 14, 2001 (the "HIG Consent Dispute") and the "stock option" component, ------------------- which is the subject of Count Six of the Company's Second Amended Verified Complaint attached to a Motion for Leave to File the Second Amended Verified Complaint filed with the Court on December 6, 2001 (the "HIG Stock Option ---------------- Dispute"). Upon resolution of the HIG Consent Dispute, the Equityholders shall ------- (subject to the immediately succeeding sentence) become entitled to receive a distribution from the Escrow Account equal to Two Million, Three Hundred Thousand Dollars ($2,300,000) minus all indemnifiable losses or expenses ----- incurred by the Buyer Indemnified Parties in connection with the HIG Consent Dispute (or no distribution if such subtraction results in a negative number), and upon resolution of the HIG Stock Option Dispute, the Equityholders shall (subject to the immediately succeeding sentence) become entitled to receive a distribution from the Escrow Account equal to Three Million Dollars ($3,000,000) minus all indemnifiable losses or expenses incurred by the Buyer Indemnified ----- Parties in connection with the HIG Stock Option Dispute (or no distribution if such subtraction results in a negative number). All such distributions are dependent on the availability of sufficient funds in the Escrow Account and are subject to pending Buyer Claims against the funds held in the Escrow Account and are further subject to the terms and conditions of the Escrow Agreement, which shall govern in the event of any inconsistency between this Section 8.2 shall in no way limit 9.02(d) and the rights Escrow Agreement. (e) Notwithstanding anything herein to the contrary, none of the Buyer Indemnitees Indemnified Parties shall be entitled to indemnity from the Escrow Account or otherwise under Section 9.01 hereof with respect to, and the Equityholders shall not otherwise be liable for, any matter (other than the HIG Dispute) of which Buyer had actual knowledge at or prior to the Closing. (f) Indemnification pursuant to Section 9.01 hereof shall be limited to the amount of any liability or damage that remains after deducting therefrom (and the cumulative amount of all Buyer Claims for purposes of determining the Deductible above shall be reduced by the amount of) (i) any Tax Benefit (as ----------- hereinafter defined) to Buyer or any of its affiliates and (ii) any insurance proceeds and any indemnity, contribution or other similar payment recoverable by Buyer or any of its affiliates from any third party with respect thereto. As used herein, the term "Tax Benefit" shall mean the foreign, federal, state and local tax savings that have resulted or would reasonably be likely to result, if claimed, from any tax deduction or tax credit that (i) the indemnified party is entitled to claim in accordance with applicable law (without regard to the entitlement of such indemnified party to any indemnification payment pursuant to the terms of this Section 9) on a foreign, federal, state or local tax return filed for any tax year of the Company, any Subsidiary or Buyer and (ii) is directly attributable to such claim. It shall be assumed that the indemnified party is subject to the maximum marginal foreign, federal, state and local tax rates for a corporation doing business in the principal jurisdiction where the Company does business, unless the indemnified party's independent certified public accountant certifies that such indemnified party is subject to a different rate, in which case of fraudsuch different rate shall apply.