Common use of Threshold and Cap Clause in Contracts

Threshold and Cap. (a) In respect of Fenix’s assertion of an Indemnification Claim under Section 10.1(a)(1), Fenix shall not be entitled to indemnification until the aggregate amount for which indemnification is sought exceeds 1.0% of the Purchase Price. If this threshold is reached, Fenix may assert an Indemnification Claim for the full amount of the Claim in excess of the threshold and may assert any subsequent Indemnification Claim under Section 10.1(a)(1) without regard to any threshold. No threshold shall apply, however, in the case of any Indemnifiable Loss caused by, arising out of or relating to any fraud or intentional misrepresentation. (b) No threshold shall apply to Fenix’s assertion of an Indemnification Claim under Section 10.1(a)(2) or to the Shareholders’ assertion of an Indemnification Claim under Sections10.2(a)(1) or 10.2(a)(2). (c) In no event shall the aggregate Liability of the Shareholders in respect of Indemnification Claims under Sections 10.1(a)(1) and 10.1(a)(2) exceed 40% of the Purchase Price; provided, however, that no cap shall apply in the case of any Indemnifiable Loss caused by, arising out of or relating to any fraud or intentional misrepresentation.

Threshold and Cap. (a) In respect of Fenix’s F5 Finishes’ assertion of an Indemnification Claim under Section 10.1(a)(1), Fenix F5 Finishes shall not be entitled to indemnification until the aggregate amount for which indemnification is sought exceeds 1.0% of the Purchase Price$50,000. If this threshold is reached, Fenix F5 Finishes may assert an Indemnification Claim for the full amount of the Claim in excess of the threshold and may assert any subsequent Indemnification Claim under Section 10.1(a)(1) without regard to any threshold. No threshold shall apply, however, in the case of any Indemnifiable Loss caused by, arising out of or relating to (i) the breach of any Core Representation or (ii) any fraud or intentional misrepresentation. (b) No threshold shall apply to Fenix’s F5 Finishes’ assertion of an any Indemnification Claim under Section 10.1(a)(2) or to the Shareholders’ Shareholder’s assertion of an Indemnification Claim under Sections10.2(a)(1) or 10.2(a)(2). (c) In no event shall the aggregate Liability of the Shareholders Shareholder in respect of Indemnification Claims under Sections 10.1(a)(1) and 10.1(a)(2) exceed 40% fifty percent (50%) of the Purchase Price, with the exception that any liability of Shareholder as a result of Shareholder’s indemnification obligation under Section 10.01(a)(1) for a breach of a Core Representation shall not exceed the Final Purchase Price; provided, however, that no cap shall apply in the case of any Indemnifiable Loss caused by, arising out of or relating to any fraud or intentional misrepresentation.

Threshold and Cap. (a) In respect of Fenix’s F5 Finishes’ assertion of an Indemnification Claim under Section 10.1(a)(1), Fenix F5 Finishes shall not be entitled to indemnification until the aggregate amount for which indemnification is sought exceeds 1.0% of the Purchase Price$50,000. If this threshold is reached, Fenix F5 Finishes may assert an Indemnification Claim for the full amount of the Claim in excess of the threshold and may assert any subsequent Indemnification Claim under Section 10.1(a)(1) without regard to any threshold. No threshold shall apply, however, in the case of any Indemnifiable Loss caused by, arising out of or relating to (i) the breach of any Core Representation or (ii) any fraud or intentional misrepresentation. (b) No threshold shall apply to Fenix’s F5 Finishes’ assertion of an any Indemnification Claim under Section 10.1(a)(2) or to the Shareholders’ assertion of an Indemnification Claim under Sections10.2(a)(1) or 10.2(a)(2). (c) In no event shall the aggregate Liability of the Shareholders in respect of Indemnification Claims under Sections 10.1(a)(1) and 10.1(a)(2) exceed 40% fifty percent (50%) of the Purchase Price, with the exception that any liability of Shareholders as a result of Shareholders’ indemnification obligation under Section 10.01(a)(1) for a breach of a Core Representation shall not exceed the Final Purchase Price; provided, however, that no cap shall apply in the case of any Indemnifiable Loss caused by, arising out of or relating to any fraud or intentional misrepresentation.

Threshold and Cap. (a) In respect of Purchaser’s or Fenix’s assertion of an Indemnification Claim under Section 10.1(a)(111.1(a)(1), Purchaser and Fenix shall not be entitled to indemnification until the aggregate amount for which indemnification is sought exceeds 1.0% of: (i) in the case of the acquisition of the Goldy Metals Assets, the aggregate Purchase PricePrice paid pursuant to Section 2.1(5)(a); (ii) in the case of the acquisition of the Goldy Ottawa Assets, the aggregate Purchase Price paid pursuant to Section 2.1(5)(b); (iii) in the case of the acquisition of the EOL Assets, the aggregate Purchase Price paid pursuant to Section 2.1(5)(c) and (iv) in the case of the acquisition of the shares of Newco, the aggregate Purchase Price paid pursuant to Section 2.1(5)(d). If this threshold is reached, Purchaser or Fenix may assert an Indemnification Claim for the full amount of the Claim in excess of the threshold and may assert any subsequent Indemnification Claim under Section 10.1(a)(111.1(a)(1) without regard to any threshold. No threshold shall apply, however, in the case of any Indemnifiable Loss caused by, arising out of or relating to any fraud or intentional misrepresentation. (b) No threshold shall apply to Purchaser’s or Fenix’s assertion of an Indemnification Claim under Section 10.1(a)(211.1(a)(2) or Section 11.1(a)(3) or to the ShareholdersVendors’ assertion of an Indemnification Claim under Sections10.2(a)(1Sections 11.2(a)(1) or 10.2(a)(211.2(a)(2). (c) In no event shall the aggregate Liability of the Shareholders Vendors in respect of Indemnification Claims under Sections 10.1(a)(111.1(a)(1) and 10.1(a)(211.1(a)(2) exceed 40% of: (i) in the case of the acquisition of the Goldy Metals Assets, the aggregate Purchase PricePrice paid pursuant to Section 2.1(5)(a); (ii) in the case of the acquisition of the Goldy Ottawa Assets, the aggregate Purchase Price paid pursuant to Section 2.1(5)(b); (iii) in the case of the acquisition of the EOL Assets, the aggregate Purchase Price paid pursuant to Section 2.1(5)(c) and (iv) in the case of the acquisition of the shares of Newco, the aggregate Purchase Price paid pursuant to Section 2.1(5)(d); provided, however, that no cap shall apply in the case of any Indemnifiable Loss caused by, arising out of or relating to any fraud or intentional misrepresentation.

Threshold and Cap. (a) In respect of Fenix’s assertion of an Indemnification Claim under Section 10.1(a)(1), Fenix shall not be entitled to indemnification until the aggregate amount for which indemnification is sought exceeds 1.0% of the Purchase Price. If this threshold is reached, Fenix may assert an Indemnification Claim for the full amount of the Claim in excess of the threshold and may assert any subsequent Indemnification Claim under Section 10.1(a)(1) without regard to any threshold. No threshold shall apply, however, in the case of any Indemnifiable Loss caused by, arising out of or relating to any fraud or intentional misrepresentation. (b) No threshold shall apply to Fenix’s assertion of an Indemnification Claim under Section Sections 10.1(a)(2) or 10.1(a)(3) or to the Corporate Shareholders’ or the Shareholders’ assertion of an Indemnification Claim under Sections10.2(a)(1Sections 10.2(a)(1) or 10.2(a)(2). (c) In no event shall the aggregate Liability of the Shareholders in respect of Indemnification Claims under Sections 10.1(a)(1) and 10.1(a)(2) exceed 40% of the Purchase Price; provided, however, that no cap shall apply in the case of any Indemnifiable Loss caused by, arising out of or relating to any fraud or intentional misrepresentation.

Threshold and Cap. (a) In respect of Fenix’s assertion of an Indemnification Claim under Section 10.1(a)(1), Fenix shall not be entitled to indemnification until the aggregate amount for which indemnification is sought exceeds 1.0% of the Purchase Price. If this threshold is reached, Fenix may assert an Indemnification Claim for the full amount of the Claim in excess of the threshold and may assert any subsequent Indemnification Claim under Section 10.1(a)(1) without regard to any threshold. No threshold shall apply, however, in the case of any Indemnifiable Loss caused by, arising out of or relating to any fraud or intentional misrepresentation. (b) No threshold shall apply to Fenix’s assertion of an Indemnification Claim under Section 10.1(a)(2) or to the ShareholdersMembers’ assertion of an Indemnification Claim under Sections10.2(a)(1) or 10.2(a)(2). (c) In no event shall the aggregate Liability of the Shareholders Members in respect of Indemnification Claims under Sections 10.1(a)(1) and 10.1(a)(2) exceed 40% of the Purchase Price; provided, however, that no cap shall apply in the case of any Indemnifiable Loss caused by, arising out of or relating to any fraud or intentional misrepresentation.

Threshold and Cap. (a) In respect of Fenix’s assertion of an Indemnification Claim under Section 10.1(a)(1), Fenix shall not be entitled to indemnification until the aggregate amount for which indemnification is sought exceeds 1.0% of the sum of (i) the Purchase PricePrice and (ii) the aggregate amount of the Retention Bonuses. If this threshold is reached, Fenix may assert an Indemnification Claim for the full amount of the Claim in excess of the threshold and may assert any subsequent Indemnification Claim under Section 10.1(a)(1) without regard to any threshold. No threshold shall apply, however, in the case of any Indemnifiable Loss caused by, arising out of or relating to any fraud or intentional misrepresentation. (b) No threshold shall apply to Fenix’s assertion of an Indemnification Claim under Section 10.1(a)(2) or to the Shareholders’ Shareholder’s assertion of an Indemnification Claim under Sections10.2(a)(1) or 10.2(a)(2). (c) In no event shall the aggregate Liability of the Shareholders Shareholder in respect of Indemnification Claims under Sections 10.1(a)(1) and 10.1(a)(2) exceed 40% of the Purchase Price; provided, however, that no cap shall apply in the case of any Indemnifiable Loss caused by, arising out of or relating to any fraud or intentional misrepresentation.

Threshold and Cap. (a) In respect of Fenix’s assertion of an Indemnification Claim under Section 10.1(a)(1), Fenix shall not be entitled to indemnification until the aggregate amount for which indemnification is sought exceeds 1.0% of the Purchase Price. If this threshold is reached, Fenix may assert an Indemnification Claim for the full amount of the Claim in excess of the threshold and may assert any subsequent Indemnification Claim under Section 10.1(a)(1) without regard to any threshold. No threshold shall apply, however, in the case of any Indemnifiable Loss caused by, arising out of or relating to any fraud or intentional misrepresentation. (b) No threshold shall apply to Fenix’s assertion of an Indemnification Claim under Section 10.1(a)(2) or to the Shareholders’ assertion of an Indemnification Claim under Sections10.2(a)(1Sections 10.2(a)(1) or 10.2(a)(2). (c) In no event shall the aggregate Liability of the Shareholders in respect of Indemnification Claims under Sections 10.1(a)(1) and 10.1(a)(2) exceed 40% of the Purchase Price; provided, however, that no cap shall apply in the case of any Indemnifiable Loss caused by, arising out of or relating to any fraud or intentional misrepresentation.