Common use of Survival and Indemnity Clause in Contracts

Survival and Indemnity. (i) Except as set forth in Section 9(a)(ii), none of the representations, warranties, and covenants of the Parties (other than the provisions in Section 2 above concerning issuance of the Acquiror Shares and the provisions in Section 5(j) above concerning indemnification) will survive the Effective Time; (ii) The representations and warranties of the Major Shareholders in Section 3 hereof shall survive the Effective Time for a period of one year, provided that (i) the representations and warranties set forth in Sections 3 (b), (i), (j) and (l) hereof and any representation and warranty as to which any of Major Shareholders had actual knowledge of the facts which a reasonable person in such Major Shareholder's circumstances should have concluded would constitute an inaccuracy or breach shall survive for two years; and (ii) the representations and warranties set forth in Section 3(s) hereof shall survive until all applicable statutes of limitations, including waivers and extensions, have expired with respect to each matter addressed therein. Notwithstanding the preceding sentence, any representation or warranty for which indemnity may be sought pursuant to this Section 9(a) shall survive the time it would otherwise terminate pursuant to the preceding sentence, if notice of the inaccuracy or breach thereof shall have been given to the Major Shareholder against whom indemnity may be sought. (iii) The Major Shareholders agree, jointly and severally, to indemnify the Acquiror, Acquiror Sub and the Surviving Corporation against, and agrees to hold each of them harmless from, any and all damage, loss, liability and expense (including, without limitation, costs of investigation and reasonable attorneys' fees in connection with any claim, action, suit or proceeding) (collectively, "DAMAGES") incurred or suffered by the Acquiror, the Acquiror Sub or the Surviving Corporation arising out of: (A) any misrepresentation or breach of any warranty made by Major Shareholders in Section 3 hereof; or (B) any claim by any holder or former holder of Target Shares against Target or its officers, directors, or controlling persons alleging violations of Sections 5, 11, or 12 of the Securities Act or Section 10(b) or 14(a) (other than with respect to the Definitive Target Materials) of the Exchange Act, intentional or negligent misrepresentation, breach of fiduciary duty, or any misstatement of material fact or omission to state a fact that is required to be stated or necessary to make the statements made, in the light of the circumstances under which they were made, not misleading. Provided, however, that the Major Shareholders shall be not liable for indemnity under this Section 9(a)(iii) unless the aggregate Damages exceed $50,000, in which event the Major Shareholders shall be liable for all Damages, subject to Section 9(a)(iv). (iv) The aggregate indemnification obligations of the Majority Shareholders under Section 9(a) shall not exceed: (A) With respect to Damages arising out of misrepresentations and breaches of warranties set forth in Section 3 hereof which shall survive for one year pursuant to Section 9(a)(ii) hereof, an amount equal to ten percent (10%) of (i) the aggregate number of Acquiror Shares multiplied by the Average Price plus (ii) the aggregate amount of cash, received by the Major Shareholders (and any transferees of any Target Shares held by the Major Shareholders on the date hereof) pursuant to the Merger; provided that Damages claimed under Section 9(a)(iv)(B) shall count toward the foregoing limitation; (B) With respect to Damages arising out of misrepresentations and breaches of warranties set forth in Section 3 hereof which shall survive for two years pursuant to Section 9(a)(ii) hereof and Damages recoverable under Section 9(a)(iv)(B) hereof, an amount equal to $1,000,000; provided that Damages claimed under Section 9(a)(iv)(A) shall count toward the $1,000,000 limitation. Provided further, that if and to the extent any Damages are paid by insurance, the Major Shareholders shall not have any indemnification obligations hereunder (and the insurance provider shall not have any rights of subrogation hereunder), it being understood that the Acquiror, Acquiror Sub and the Surviving Corporation shall use commercially reasonable efforts to pursue recovery against an insurer under insurance coverage, but none of them shall be required to commence litigation or otherwise expend significant resources pursuing collection in the event of a dispute with the insurer. (v) No investigation or knowledge by or on behalf of the Acquiror or Acquiror Sub or the Surviving Corporation (whether before or after the Effective Time) shall in any way limit the representations and warranties set forth in Section 3 or the right of indemnity set forth in this Section 9(a).

Survival and Indemnity. (i) Except as set forth in Section 9(a)(ii), none 7.1.1. All of the representationsSelling Shareholder's, warrantiesthe Company's, Parent's and covenants of Merger Sub's representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement (each as modified by the Parties (other than Company Disclosure Schedule or the provisions in Section 2 above concerning issuance of Parent Disclosure Schedule, as the Acquiror Shares and the provisions in Section 5(j) above concerning indemnificationcase may be) will survive the Merger and continue until 5:00 p.m., Pacific time, one (1) year following the Effective Time;Time (the "EXPIRATION DATE"). 7.1.2. Subject to the terms and conditions of this Section 7, 7.1.2.1. The Selling Shareholder hereby agrees to indemnify and hold harmless Parent and its officers, directors and affiliates (including the Surviving Corporation) (collectively, the "PARENT PARTIES") from and against any claims losses, liabilities, damages, deficiencies, costs and expenses, including reasonable attorney fees and expenses, and expenses of investigation and defense (hereinafter individually a "LOSS" and collectively "LOSSES") which any Parent Party may suffer, sustain or become subject to by reason of or resulting from (i) any breach by the Selling Shareholder or the Company of any covenant or agreement or (ii) The representations and warranties of the Major Shareholders any inaccuracy in Section 3 hereof shall survive the Effective Time for a period of one year, provided that (i) the representations and warranties set forth in Sections 3 (b), (i), (j) and (l) hereof and any representation and warranty as to which any of Major Shareholders had actual knowledge of the facts which a reasonable person in such Major Shareholder's circumstances should have concluded would constitute an inaccuracy or breach shall survive for two years; and (ii) the representations and warranties set forth in Section 3(s) hereof shall survive until all applicable statutes of limitations, including waivers and extensions, have expired with respect to each matter addressed therein. Notwithstanding the preceding sentence, any representation or warranty for of the Company or the Selling Shareholder contained in this Agreement or any other instrument delivered pursuant to this Agreement (each as modified by the Company Disclosure Schedule). 7.1.2.2. Parent hereby agrees to indemnify and hold harmless the Selling Shareholder from and against all Losses which indemnity the Selling Shareholder may be sought suffer, sustain, or become subject to by reason of or resulting from (I) any breach by the Parent or Merger Sub of any covenant or agreement or (ii) any inaccuracy in an representation or warranty of Merger Sub or Parent contained in this Agreement or any other instrument delivered pursuant to this Agreement (each as modified by the Parent Disclosure Schedule). 7.1.2.3. All of the foregoing are hereinafter collectively referred to as "CLAIMS" the party seeking indemnification pursuant to this Section 9(a) 7 is hereinafter referred to as an "Indemnified Party", and the person from whom indemnification is sought is hereinafter referred to as an "Indemnifying Party". 7.1.3. The indemnification provided for in Section 7.1.2 hereof shall survive the time it would otherwise terminate pursuant be subject to the preceding sentence, if notice of the inaccuracy or breach thereof shall have been given to the Major Shareholder against whom indemnity may be soughtfollowing limitations. (iii) The Major Shareholders agree, jointly and severally, to indemnify 7.1.3.1. Neither the Acquiror, Acquiror Sub and Selling Shareholder's nor the Surviving Corporation against, and agrees to hold each of them harmless from, any and all damage, loss, Parent's total liability and expense (including, without limitation, costs of investigation and reasonable attorneys' fees in connection with any claim, action, suit or proceeding) (collectively, "DAMAGES") incurred or suffered by the Acquiror, the Acquiror Sub or the Surviving Corporation arising out of: (A) any misrepresentation or breach of any warranty made by Major Shareholders in for indemnification under this Section 3 hereof7 shall exceed $1,800,000; or (B) any claim by any holder or former holder of Target Shares against Target or its officers, directors, or controlling persons alleging violations of Sections 5, 11, or 12 of the Securities Act or Section 10(b) or 14(a) (other than with respect to the Definitive Target Materials) of the Exchange Act, intentional or negligent misrepresentation, breach of fiduciary duty, or any misstatement of material fact or omission to state a fact that is required to be stated or necessary to make the statements made, in the light of the circumstances under which they were made, not misleading. Providedprovided, however, that the Major Shareholders shall be not liable obligations for indemnity under this Section 9(a)(iii) unless the aggregate Damages exceed $50,000, in which event the Major Shareholders shall be liable for all Damages, subject to Section 9(a)(iv). (iv) The aggregate indemnification obligations of the Majority Shareholders under Section 9(a) shall not exceed: (A) With respect to Damages indemnifiable amounts arising out of misrepresentations and breaches fraud or willful misstatements or omissions shall have no limit nor shall claims for breach of warranties set forth in Section 3 hereof which shall survive for one year pursuant to Section 9(a)(ii) hereofwarranty under Sections 2.2, an amount equal to ten percent (10%) of (i) the aggregate number of Acquiror Shares multiplied by the Average Price plus (ii) the aggregate amount of cash2.4, received by the Major Shareholders (and any transferees of any Target Shares held by the Major Shareholders on the date hereof) pursuant to the Merger; provided that Damages claimed under Section 9(a)(iv)(B) shall count toward the foregoing limitation; (B) With respect to Damages arising out of misrepresentations and breaches of warranties set forth in Section 3 hereof which shall survive for two years pursuant to Section 9(a)(ii) hereof and Damages recoverable under Section 9(a)(iv)(B) hereof3.2, an amount equal to $1,000,000; provided that Damages claimed under Section 9(a)(iv)(A) shall count toward the $1,000,000 limitation. Provided further, that if and to the extent any Damages are paid by insurance, the Major Shareholders shall not have any indemnification obligations hereunder (and the insurance provider shall not have any rights of subrogation hereunder), it being understood that the Acquiror, Acquiror Sub and the Surviving Corporation shall use commercially reasonable efforts to pursue recovery against an insurer under insurance coverage, but none of them shall be required to commence litigation or otherwise expend significant resources pursuing collection in the event of a dispute with the insurer. (v) No investigation or knowledge by or on behalf of the Acquiror or Acquiror Sub or the Surviving Corporation (whether before or after the Effective Time) shall in any way limit the representations and warranties set forth in Section 3 or the right of indemnity set forth in this Section 9(a).or

Survival and Indemnity. (i) Except as set forth in Section 9(a)(ii), none of the representations, warranties, and covenants of the Parties (other than the provisions in Section 2 above concerning issuance of the Acquiror Shares and the provisions in Section 5(j) above concerning indemnification) will survive the Effective Time; (ii) The representations and warranties of the Major Shareholders in Section 3 hereof shall survive the Effective Time for a period of one year, provided that (i) the representations and warranties set forth in Sections 3 (b), (i), (j) and (l) hereof and any representation and warranty as to which any of Major Shareholders had actual knowledge of the facts which a reasonable person in such Major Shareholder's circumstances should have concluded would constitute an inaccuracy or breach shall survive for two years; and (ii) the representations and warranties set forth in Section 3(s) hereof shall survive until all applicable statutes of limitations, including waivers and extensions, have expired with respect to each matter addressed therein. Notwithstanding the preceding sentence, any representation or warranty for which indemnity may be sought pursuant to this Section 9(a) shall survive the time it would otherwise terminate pursuant to the preceding sentence, if notice of the inaccuracy or breach thereof shall have been given to the Major Shareholder against whom indemnity may be sought. (iii) The Major Shareholders agree, jointly and severally, to indemnify the Acquiror, Acquiror Sub and the Surviving Corporation against, and agrees to hold each of them harmless from, any and all damage, loss, liability and expense (including, without limitation, costs of investigation and reasonable attorneys' fees in connection with any claim, action, suit or proceeding) (collectively, "DAMAGESDamages") incurred or suffered by the Acquiror, the Acquiror Sub or the Surviving Corporation arising out of: (A) any misrepresentation or breach of any warranty made by Major Shareholders in Section 3 hereof; or (B) any claim by any holder or former holder of Target Shares against Target or its officers, directors, or controlling persons alleging violations of Sections 5, 11, or 12 of the Securities Act or Section 10(b) or 14(a) (other than with respect to the Definitive Target Materials) of the Exchange Act, intentional or negligent misrepresentation, breach of fiduciary duty, or any misstatement of material fact or omission to state a fact that is required to be stated or necessary to make the statements made, in the light of the circumstances under which they were made, not misleading. Provided, however, that the Major Shareholders shall be not liable for indemnity under this Section 9(a)(iii) unless the aggregate Damages exceed $50,000, in which event the Major Shareholders shall be liable for all Damages, subject to Section 9(a)(iv). (iv) The aggregate indemnification obligations of the Majority Shareholders under Section 9(a) shall not exceed: (A) With respect to Damages arising out of misrepresentations and breaches of warranties set forth in Section 3 hereof which shall survive for one year pursuant to Section 9(a)(ii) hereof, an amount equal to ten percent (10%) of (i) the aggregate number of Acquiror Shares multiplied by the Average Price plus (ii) the aggregate amount of cash, received by the Major Shareholders (and any transferees of any Target Shares held by the Major Shareholders on the date hereof) pursuant to the Merger; provided that Damages claimed under Section 9(a)(iv)(B) shall count toward the foregoing limitation; (B) With respect to Damages arising out of misrepresentations and breaches of warranties set forth in Section 3 hereof which shall survive for two years pursuant to Section 9(a)(ii) hereof and Damages recoverable under Section 9(a)(iv)(B) hereof, an amount equal to $1,000,000; provided that Damages claimed under Section 9(a)(iv)(A) shall count toward the $1,000,000 limitation. Provided further, that if and to the extent any Damages are paid by insurance, the Major Shareholders shall not have any indemnification obligations hereunder (and the insurance provider shall not have any rights of subrogation hereunder), it being understood that the Acquiror, Acquiror Sub and the Surviving Corporation shall use commercially reasonable efforts to pursue recovery against an insurer under insurance coverage, but none of them shall be required to commence litigation or otherwise expend significant resources pursuing collection in the event of a dispute with the insurer. (v) No investigation or knowledge by or on behalf of the Acquiror or Acquiror Sub or the Surviving Corporation (whether before or after the Effective Time) shall in any way limit the representations and warranties set forth in Section 3 or the right of indemnity set forth in this Section 9(a).

Survival and Indemnity. (i) Except as set forth in Section 9(a)(ii), none of the representations, warranties, and covenants of the Parties (other than the provisions in Section 2 above concerning issuance of the Acquiror Shares and the provisions in Section 5(j5(i) above concerning indemnification) will survive the Effective Time; (ii) The representations and warranties of the Major Shareholders in Section 3 hereof shall survive the Effective Time for a period of one year, provided that (i) the representations and warranties set forth in Sections 3 (b3(b), (i), (j) and (l) hereof and any representation and warranty as to which any of Major Shareholders had actual knowledge of the facts which a reasonable person in such Major Shareholder's circumstances should have concluded would constitute an inaccuracy or breach shall survive for two years; and (ii) the representations and warranties set forth in Section 3(s) hereof shall survive until all applicable statutes of limitations, including waivers and extensions, have expired with respect to each matter addressed therein. Notwithstanding the preceding sentence, any representation or warranty for which indemnity may be sought pursuant to this Section 9(a) shall survive the time it would otherwise terminate pursuant to the preceding sentence, if notice of the inaccuracy or breach thereof shall have been given to the Major Shareholder against whom indemnity may be sought. (iii) The Major Shareholders agree, jointly and severally, to indemnify the Acquiror, Acquiror Sub and the Surviving Corporation against, and agrees to hold each of them harmless from, any and all damage, loss, liability and expense (including, without limitation, costs of investigation and reasonable attorneys' fees in connection with any claim, action, suit or proceeding) (collectively, "DAMAGESDamages") incurred or suffered by the Acquiror, the Acquiror Sub or the Surviving Corporation arising out of: (A) any misrepresentation or breach of any warranty made by Major Shareholders in Section 3 hereof; or (B) any claim by any holder or former holder of Target Shares against Target or its officers, directors, or controlling persons alleging violations of Sections 5, 11, or 12 of the Securities Act or Section 10(b) or 14(a) (other 26 28 than with respect to the Definitive Target Materials) of the Exchange Act, intentional or negligent misrepresentation, breach of fiduciary duty, or any misstatement of material fact or omission to state a fact that is required to be stated or necessary to make the statements made, in the light of the circumstances under which they were made, not misleading. Provided, however, that the Major Shareholders shall be not liable for indemnity under this Section 9(a)(iii) unless the aggregate Damages exceed $50,000, in which event the Major Shareholders shall be liable for all Damages, subject to Section 9(a)(iv). (iv) The aggregate indemnification obligations of the Majority Shareholders under Section 9(a) shall not exceed: (A) With respect to Damages arising out of misrepresentations and breaches of warranties set forth in Section 3 hereof which shall survive for one year pursuant to Section 9(a)(ii) hereof, an amount equal to ten percent (10%) of (i) the aggregate number of Acquiror Shares multiplied by the Average Price plus (ii) the aggregate amount of cash, received by the Major Shareholders (and any transferees of any Target Shares held by the Major Shareholders on the date hereof) pursuant to the Merger; provided that Damages claimed under Section 9(a)(iv)(B) shall count toward the foregoing limitation; (B) With respect to Damages arising out of misrepresentations and breaches of warranties set forth in Section 3 hereof which shall survive for two years pursuant to Section 9(a)(ii) hereof and Damages recoverable under Section 9(a)(iv)(B) hereof, an amount equal to $1,000,000; provided that Damages claimed under Section 9(a)(iv)(A) shall count toward the $1,000,000 limitation. Provided further, that if and to the extent any Damages are paid by insurance, the Major Shareholders shall not have any indemnification obligations hereunder (and the insurance provider shall not have any rights of subrogation hereunder), it being understood that the Acquiror, Acquiror Sub and the Surviving Corporation shall use commercially reasonable efforts to pursue recovery against an insurer under insurance coverage, but none of them shall be required to commence litigation or otherwise expend significant resources pursuing collection in the event of a dispute with the insurer. (v) No investigation or knowledge by or on behalf of the Acquiror or Acquiror Sub or the Surviving Corporation (whether before or after the Effective Time) shall in any way limit the representations and warranties set forth in Section 3 or the right of indemnity set forth in this Section 9(a).

Survival and Indemnity. (i) Except as set forth in Section 9(a)(ii), none of the representations, warranties, and covenants of the Parties (other than the provisions in Section 2 above concerning issuance of the Acquiror Shares and the provisions in Section 5(j5(i) above concerning indemnification) will survive the Effective Time; (ii) The representations and warranties of the Major Shareholders in Section 3 hereof shall survive the Effective Time for a period of one year, provided that (i) the representations and warranties set forth in Sections 3 (b), (i), (j) and (l) hereof and any representation and warranty as to which any of Major Shareholders had actual knowledge of the facts which a reasonable person in such Major Shareholder's circumstances should have concluded would constitute an inaccuracy or breach shall survive for two years; and (ii) the representations and warranties set forth in Section 3(s) hereof shall survive until all applicable statutes of limitations, including waivers and extensions, have expired with respect to each matter addressed therein. Notwithstanding the preceding sentence, any representation or warranty for which indemnity may be sought pursuant to this Section 9(a) shall survive the time it would otherwise terminate pursuant to the preceding sentence, if notice of the inaccuracy or breach thereof shall have been given to the Major Shareholder against whom indemnity may be sought. (iii) The Major Shareholders agree, jointly and severally, to indemnify the Acquiror, Acquiror Sub and the Surviving Corporation against, and agrees to hold each of them harmless from, any and all damage, loss, liability and expense (including, without limitation, costs of investigation and reasonable attorneys' fees in connection with any claim, action, suit or proceeding) (collectively, "DAMAGESDamages") incurred or suffered by the Acquiror, the Acquiror Sub or the Surviving Corporation arising out of: (A) any misrepresentation or breach of any warranty made by Major Shareholders in Section 3 hereof; or (B) any claim by any holder or former holder of Target Shares against Target or its officers, directors, or controlling persons alleging violations of Sections 5, 11, or 12 of the Securities Act or Section 10(b) or 14(a) (other than with respect to the Definitive Target Materials) of the Exchange Act, intentional or negligent misrepresentation, breach of fiduciary duty, or any misstatement of material fact or omission to state a fact that is required to be stated or necessary to make the statements made, in the light of the circumstances under which they were made, not misleading. Provided, however, that the Major Shareholders shall be not liable for indemnity under this Section 9(a)(iii) unless the aggregate Damages exceed $50,000, in which event the Major Shareholders shall be liable for all Damages, subject to Section 9(a)(iv). (iv) The aggregate indemnification obligations of the Majority Shareholders under Section 9(a) shall not exceed: (A) With respect to Damages arising out of misrepresentations and breaches of warranties set forth in Section 3 hereof which shall survive for one year pursuant to Section 9(a)(ii) hereof, an amount equal to ten percent (10%) of (i) the aggregate number of Acquiror Shares multiplied by the Average Price plus (ii) the aggregate amount of cash, received by the Major Shareholders (and any transferees of any Target Shares held by the Major Shareholders on the date hereof) pursuant to the Merger; provided that Damages claimed under Section 9(a)(iv)(B) shall count toward the foregoing limitation; (B) With respect to Damages arising out of misrepresentations and breaches of warranties set forth in Section 3 hereof which shall survive for two years pursuant to Section 9(a)(ii) hereof and Damages recoverable under Section 9(a)(iv)(B) hereof, an amount equal to $1,000,000; provided that Damages claimed under Section 9(a)(iv)(A) shall count toward the $1,000,000 limitation. Provided further, that if and to the extent any Damages are paid by insurance, the Major Shareholders shall not have any indemnification obligations hereunder (and the insurance provider shall not have any rights of subrogation hereunder), it being understood that the Acquiror, Acquiror Sub and the Surviving Corporation shall use commercially reasonable efforts to pursue recovery against an insurer under insurance coverage, but none of them shall be required to commence litigation or otherwise expend significant resources pursuing collection in the event of a dispute with the insurer. (v) No investigation or knowledge by or on behalf of the Acquiror or Acquiror Sub or the Surviving Corporation (whether before or after the Effective Time) shall in any way limit the representations and warranties set forth in Section 3 or the right of indemnity set forth in this Section 9(a).

Survival and Indemnity. (i) Except as set forth in Section 9(a)(ii)11.1 The covenants, none of the representations, warranties, and covenants of the Parties (other than the provisions in Section 2 above concerning issuance of the Acquiror Shares and the provisions in Section 5(j) above concerning indemnification) will survive the Effective Time; (ii) The representations and warranties contained in this Agreement and given by any of the Major Shareholders in Section 3 hereof parties hereto respectively shall survive the Effective Time Closing of the sale and purchase of the Shares herein provided for a period of one yearand shall survive notwithstanding any investigation made by any party prior to the Closing Date, provided that (i) the representations shall not merge with any deed, conveyance or other transfer, instrument or other agreement giving effect hereto, and warranties set forth in Sections 3 (b)shall survive any amalgamation or reorganization or merger entered into by any party and, (i), (j) and (l) hereof notwithstanding such Closing and any representation and warranty as to which any of Major Shareholders had actual knowledge of the facts which a reasonable person in such Major Shareholder's circumstances should have concluded would constitute an inaccuracy or breach shall survive for two years; and (ii) the representations and warranties set forth in Section 3(s) hereof shall survive until all applicable statutes of limitations, including waivers and extensions, have expired with respect to each matter addressed therein. Notwithstanding the preceding sentence, any representation or warranty for which indemnity may be sought pursuant to this Section 9(a) shall survive the time it would otherwise terminate pursuant to the preceding sentence, if notice of the inaccuracy or breach thereof shall have been given to the Major Shareholder against whom indemnity may be sought. (iii) The Major Shareholders agree, jointly and severally, to indemnify the Acquiror, Acquiror Sub and the Surviving Corporation against, and agrees to hold each of them harmless from, any and all damage, loss, liability and expense (including, without limitation, costs of investigation and reasonable attorneys' fees in connection with any claim, action, suit or proceeding) (collectively, "DAMAGES") incurred or suffered by the Acquiror, the Acquiror Sub or the Surviving Corporation arising out of: (A) any misrepresentation or breach of any warranty made by Major Shareholders in Section 3 hereof; or (B) any claim by any holder or former holder of Target Shares against Target or its officers, directors, or controlling persons alleging violations of Sections 5, 11, or 12 of the Securities Act or Section 10(b) or 14(a) (other than with respect to the Definitive Target Materials) of the Exchange Act, intentional or negligent misrepresentation, breach of fiduciary duty, or any misstatement of material fact or omission to state a fact that is required to be stated or necessary to make the statements made, in the light of the circumstances under which they were made, not misleading. Provided, however, that the Major Shareholders shall be not liable for indemnity under this Section 9(a)(iii) unless the aggregate Damages exceed $50,000, in which event the Major Shareholders shall be liable for all Damages, subject to Section 9(a)(iv). (iv) The aggregate indemnification obligations of the Majority Shareholders under Section 9(a) shall not exceed: (A) With respect to Damages arising out of misrepresentations and breaches of warranties set forth in Section 3 hereof which shall survive for one year pursuant to Section 9(a)(ii) hereof, an amount equal to ten percent (10%) of (i) the aggregate number of Acquiror Shares multiplied by the Average Price plus (ii) the aggregate amount of cash, received by the Major Shareholders (and any transferees of any Target Shares held by the Major Shareholders on the date hereof) pursuant to the Merger; provided that Damages claimed under Section 9(a)(iv)(B) shall count toward the foregoing limitation; (B) With respect to Damages arising out of misrepresentations and breaches of warranties set forth in Section 3 hereof which shall survive for two years pursuant to Section 9(a)(ii) hereof and Damages recoverable under Section 9(a)(iv)(B) hereof, an amount equal to $1,000,000; provided that Damages claimed under Section 9(a)(iv)(A) shall count toward the $1,000,000 limitation. Provided further, that if and to the extent any Damages are paid by insurance, the Major Shareholders shall not have any indemnification obligations hereunder (and the insurance provider shall not have any rights of subrogation hereunder), it being understood that the Acquiror, Acquiror Sub and the Surviving Corporation shall use commercially reasonable efforts to pursue recovery against an insurer under insurance coverage, but none of them shall be required to commence litigation or otherwise expend significant resources pursuing collection in the event of a dispute with the insurer. (v) No investigation or knowledge by or on behalf of any party, and shall continue in full force and effect indefinitely. 11.2 Without prejudice to any other remedy available to the Acquiror Purchaser at law or Acquiror Sub in equity, the Vendor does hereby agree, on demand, to indemnify and save harmless the Purchaser from and against all costs, damages, deficiencies, demands, injury, liabilities (whether accrued, actual, contingent or otherwise), losses, claims, judgments, amounts paid in settlement of actions or claims, and expenses (including but not limiting to legal fees and disbursements on a solicitor and his own client basis) and any manner accruing from, arising out of or with respect to or relating to any of the representations, warranties and covenants of the Vendor contained herein being untrue or incorrect or the Surviving Corporation failure of the Vendor to observe or perform any of its obligations hereunder or as a result of the Purchaser owning and possessing the Shares, as and from the Closing Date. 11.3 Without prejudice to any other remedy available to the Vendor at law or in equity, the Purchaser does hereby agree, on demand, to indemnify and save harmless the Vendor from and against all costs, damages, deficiencies, demands, injury, liabilities (whether before accrued, actual, contingent or after otherwise), losses, claims, judgments, amounts paid in settlement of actions or claims, and expenses (including but not limiting to legal fees and disbursements on a solicitor and his own client basis) and any manner accruing from, arising out of or with respect to or relating to any of the Effective Time) shall in any way limit representations, warranties and covenants of the representations and warranties set forth in Section 3 Purchaser contained herein being untrue or incorrect or the right failure of indemnity set forth in this Section 9(a).the Purchaser to observe or perform any of its obligations hereunder or as a result of the Vendor owning and possessing the CBBC Shares, as and from the Closing Date