Common use of Threshold and Limitations Clause in Contracts

Threshold and Limitations. (i) No Parent Group member shall be entitled to receive any indemnification payment with respect to any claim for indemnification under this Article 7 ("CLAIMS") until the aggregate Damages for which the Parent Group would otherwise be entitled to receive indemnification exceeds $350,000 ("THRESHOLD"). Once such aggregate Loss exceeds the Threshold, the Parent Group, shall be entitled to indemnification for the aggregate amount of all Damages, regardless of the Threshold. Notwithstanding the foregoing, Parent shall be entitled to indemnification for all Damages based upon a claim of fraud or any breach of the representations contained in Sections 2.2, 2.3, 2.4, 2.8, 3.3 and 3A.2, and any indemnification provided for by Sections 7.1(c), 7.1(d) and 7.1(e) without regard to the Threshold. (ii) Except as provided below for Damages based upon a claim of fraud or any breach of the representations contained in Sections 2.2, 2.3, 2.4, 2.8, 3.3 or 3A.2, and any indemnification provided for by Sections 7.1(c), 7.1(d) and 7.1(e), (A) the aggregate liability of all Company Stockholders under this Article 7 (other than pursuant to Section 7.1(d)), shall be limited to the value of the Indemnification Escrow, for which purpose, any shares of Parent Common Stock deposited in escrow shall be valued at $2.80 per share, as subject to adjustment for stock splits, stock dividends and the like (the "ESCROW VALUE"), (B) the aggregate liability of Parent and the Merger Subs under this Article 7, shall be limited to the amount of the Escrow Value, and (C) the liability of any Company Stockholder shall be limited to the amount of the Escrow Value originally deposited in escrow for his or its account. With respect to any Claim based on a claim of fraud, any breach of the representations contained in Sections 2.2, 2.3, 2.4, 2.8, 3.3 or -71- 3A.2, and any indemnification provided for by Sections 7.1(c), the liability of each Company Stockholder shall be up to the amount of the Merger Consideration actually received by such Company Stockholder; with respect to any Claim based on the indemnification provided for by Section 7.1(d), the aggregate liability of the Company Stockholders shall be limited to the value of the Indemnification Escrow plus the Working Capital Escrow; and with respect to any Claim based on the indemnification provided for by Section 7.1(e) the aggregate liability of the Company Stockholders shall be limited to the value of the Indemnification Escrow plus $250,000; provided, that the indemnification provided by any Principal Stockholder in respect of the representations in the Transmittal Certificates and Article 3 and its covenants in this Agreement, and the indemnification provided by the Specified Holder in respect of the representations in its Transmittal Certificate and Article 3A, are several and not joint, such that no Principal Stockholder or Specified Holder shall be liable in indemnity for the breach of any such representation other than those made by such Principal Stockholder or the Specified Holder, as the case may be. (iii) An indemnifying party shall not be obligated to defend and hold harmless an indemnified party or otherwise be liable to such party with respect to any claims made by indemnifying party after the expiration of the applicable time period as set forth in, and subject to, Section 7.3. (iv) In determining the amount of Damages for which any Parent Group member is entitled assert a claim for indemnification, the amount of any such Damages shall be determined after deducting therefrom the amount of any insurance proceeds actually received by Parent or the Company in respect of such matter (which recoveries Parent agrees to use and to cause the Company to use commercially reasonable efforts to obtain). If an indemnification payment is received by a member of the Parent Group hereunder, and such person or the Company later receives insurance proceeds in respect of the related Damages, Parent shall return to the Company Stockholders within 10 days of the receipt of such insurance proceeds (and in the same proportion of cash and Parent Stock deposited in the Indemnity Escrow), Base Consideration previously distributed to Parent from the Indemnity Escrow equal in value (for which purpose any shares of Parent Common Stock deposited in escrow shall be valued at $2.80 per share, as subject to adjustment for stock splits, stock dividends and the like) to the lesser of (A) the actual amount of insurance proceeds and (B) the actual amount of the indemnification payment previously paid by the Company Stockholders with respect to such Damages. If an Indemnifying Party (as defined below) makes any indemnification payment hereunder, such Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Party (as defined below) to any third party in connection with the Damages to which such payment relates.

Threshold and Limitations. (i) No Parent Group member shall be entitled to receive any indemnification payment with respect to any claim for indemnification under this Article 7 ("CLAIMS"“Claims”) until the aggregate Damages for which the Parent Group would otherwise be entitled to receive indemnification exceeds $350,000 100,000 ("THRESHOLD"“Threshold”). Once such aggregate Loss exceeds the Threshold, the Parent Group, Group shall be entitled to indemnification for the aggregate amount of all Damages, regardless of the Threshold. Notwithstanding the foregoing, Parent shall be entitled to indemnification for all Damages based upon a claim of fraud or any breach of the representations contained in Sections 2.2, 2.3, 2.4, 2.8, 3.2, 3.3 and 3A.23.4, and any indemnification provided for by Sections 7.1(c), 7.1(d) and 7.1(e) without regard to the Threshold. (ii) Except as provided below for Damages based upon a claim of fraud or any breach of the representations contained in Sections 2.2, 2.3, 2.4, 2.8, 3.2, 3.3 or 3A.2and 3.4, and any indemnification provided for by Sections 7.1(c), 7.1(d) and 7.1(e), (A) the aggregate liability of all Company Stockholders under this Article 7 (other than pursuant to Section 7.1(d)), shall be limited to the value amount of the Indemnification Escrow, for which purpose, any shares of Parent Common Stock deposited in escrow shall be valued at $2.80 per share, as subject to adjustment for stock splits, stock dividends and the like General Indemnity Escrow (the "ESCROW VALUE"“Escrow Value”), (B) the aggregate liability of Parent and the Merger Subs Sub under this Article 7, shall be limited to the amount of the Escrow Value, and (C) the liability of any Company Stockholder shall be limited to the amount of the Escrow Value originally deposited in escrow for his or its account. With respect to any Claim based on a claim of fraud, any breach of the representations contained in Sections 2.2, 2.3, 2.4, 2.8, 3.2, 3.3 or -71- 3A.2, and 3.4 and any indemnification provided for by Sections 7.1(c), the liability of each Company Stockholder shall be up to the amount of the Merger Consideration actually received by such Company Stockholder; with respect to any Claim based on the indemnification provided for by Section 7.1(d), the aggregate liability of the Company Stockholders shall be limited to the value of the Indemnification General Indemnity Escrow plus the Working Capital Escrow, it being understood that Parent shall first have recourse to the Working Capital Escrow for any such Claim; and with respect to any Claim based on the indemnification provided for by Section 7.1(e) the aggregate liability of the Company Stockholders shall be limited to the value sum of the Indemnification General Indemnity Escrow plus $250,000and the Special Indemnity Escrow it being understood that Parent shall first have recourse to the Special Indemnity Escrow for any such Claim; provided, that the indemnification provided by any Principal Stockholder in respect of the representations in the Transmittal Certificates and Article 3 and its covenants in this Agreement, and the indemnification provided by the Specified Holder in respect of the representations in its Transmittal Certificate and Article 3A, Agreement are several and not joint, such that no Principal Stockholder or Specified Holder shall be liable in indemnity for the breach of any such representation other than those made by such Principal Stockholder or the Specified HolderStockholder, as the case may be. (iii) An indemnifying party shall not be obligated to defend and hold harmless an indemnified party or otherwise be liable to such party with respect to any claims made by indemnifying party after the expiration of the applicable time period as set forth in, and subject to, Section 7.3. (iv) In determining the amount of Damages for which any Parent Group member is entitled assert a claim for indemnification, the amount of any such Damages shall be determined after deducting therefrom the amount of any insurance proceeds actually received by Parent or the Company in respect of such matter (which recoveries Parent agrees to use and to cause the Company to use commercially reasonable efforts to obtain). If an indemnification payment is received by a member of the Parent Group hereunder, and such person or the Company later receives insurance proceeds in respect of the related Damages, Parent shall return to the Company Stockholders within 10 days of the receipt of such insurance proceeds (and in the same proportion of cash and Parent Stock deposited in the Indemnity Escrow)proceeds, Base Merger Consideration previously distributed to Parent from the General Indemnity Escrow equal in value (for which purpose any shares of Parent Common Stock deposited in escrow shall be valued at $2.80 per share, as subject to adjustment for stock splits, stock dividends and the like) to the lesser of (A) the actual amount of insurance proceeds and (B) the actual amount of the indemnification payment previously paid by the Company Stockholders with respect to such Damages. If an Indemnifying Party (as defined below) makes any indemnification payment hereunder, such Indemnifying Party shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Party (as defined below) to any third party in connection with the Damages to which such payment relates.

Threshold and Limitations. (a) The Indemnified Parties shall not be entitled to receive any payment with respect to any Claims under this Article VIII until the aggregate Losses for which such Indemnified Parties would be otherwise entitled to receive payment, plus the aggregate Shareholder Costs, if any, payable under Section 8.7(b) exceed $135,000 (the "THRESHOLD"); provided, however, that (i) No Parent Group member the Threshold shall not apply to Losses specified under clauses (c), (d) or (f) of Section 8.2(a) above or to Claim under Section 8.2(b) and (ii) once the aggregate Losses exceed the Threshold, such Indemnified Parties shall be entitled to receive any indemnification payment with respect to any claim for indemnification under this Article 7 ("CLAIMS") until the aggregate Damages for which the Parent Group would otherwise be entitled to receive indemnification exceeds $350,000 ("THRESHOLD"). Once such aggregate Loss exceeds the Threshold, the Parent Group, shall be entitled to indemnification for the aggregate amount of all Damages, regardless of the Threshold. Notwithstanding the foregoing, Parent shall be entitled to indemnification for all Damages based upon a claim of fraud or any breach of the representations contained in Sections 2.2, 2.3, 2.4, 2.8, 3.3 and 3A.2, and any indemnification provided for by Sections 7.1(c), 7.1(d) and 7.1(e) Losses without regard to the ThresholdThreshold subject to the limitation in Section 8.4(c). (ii) Except as provided below for Damages based upon a claim of fraud or any breach of the representations contained in Sections 2.2, 2.3, 2.4, 2.8, 3.3 or 3A.2, and any indemnification provided for by Sections 7.1(c), 7.1(d) and 7.1(e), (A) the aggregate liability of all Company Stockholders under this Article 7 (other than pursuant to Section 7.1(d)), shall be limited to the value of the Indemnification Escrow, for which purpose, any shares of Parent Common Stock deposited in escrow shall be valued at $2.80 per share, as subject to adjustment for stock splits, stock dividends and the like (the "ESCROW VALUE"), (B) the aggregate liability of Parent and the Merger Subs under this Article 7, shall be limited to the amount of the Escrow Value, and (C) the liability of any Company Stockholder shall be limited to the amount of the Escrow Value originally deposited in escrow for his or its account. With respect to any Claim based on a claim of fraud, any breach of the representations contained in Sections 2.2, 2.3, 2.4, 2.8, 3.3 or -71- 3A.2, and any indemnification provided for by Sections 7.1(c), the liability of each Company Stockholder shall be up to the amount of the Merger Consideration actually received by such Company Stockholder; with respect to any Claim based on the indemnification provided for by Section 7.1(d), the aggregate liability of the Company Stockholders shall be limited to the value of the Indemnification Escrow plus the Working Capital Escrow; and with respect to any Claim based on the indemnification provided for by Section 7.1(e) the aggregate liability of the Company Stockholders shall be limited to the value of the Indemnification Escrow plus $250,000; provided, that the indemnification provided by any Principal Stockholder in respect of the representations in the Transmittal Certificates and Article 3 and its covenants in this Agreement, and the indemnification provided by the Specified Holder in respect of the representations in its Transmittal Certificate and Article 3A, are several and not joint, such that no Principal Stockholder or Specified Holder shall be liable in indemnity for the breach of any such representation other than those made by such Principal Stockholder or the Specified Holder, as the case may be. (iiib) An indemnifying party shall not be obligated to defend and hold harmless an indemnified party Indemnified Party, or otherwise be liable to such party party, with respect to any claims made by indemnifying party the Indemnified Party after the expiration of the Survival Period or other applicable time period limitation described in Section 8.1, except that indemnity may be sought after the expiration of the Survival Period or other applicable time limitation if a Claim Notice (as set forth indefined in Section 8.5(a)) shall have been delivered to Parent or the Shareholder Representative (as defined in Section 8.7 below), and subject toas the case may be, Section 7.3prior to the expiration of such time period. (ivc) In determining Notwithstanding anything to the amount of Damages for which any Parent Group member is entitled assert a claim for indemnificationcontrary in this Agreement, the amount of any such Damages shall be determined after deducting therefrom the amount of any insurance proceeds actually received by Parent or the Company in respect of such matter (which recoveries Parent agrees to use and to cause the Company to use commercially reasonable efforts to obtain). If an indemnification payment is received by a member of the Parent Group hereunder, and such person or the Company later receives insurance proceeds in respect of the related Damages, Parent shall return to the Company Stockholders within 10 days of the receipt of such insurance proceeds (and in the same proportion of cash and Parent Stock deposited in the Indemnity Escrow), Base Consideration previously distributed to Parent from the Indemnity Escrow equal in value (for which purpose any shares aggregate liability of Parent Common Stock deposited in escrow shall be valued at $2.80 per share, as subject to adjustment for stock splits, stock dividends and the like) to the lesser of (A) the actual amount of insurance proceeds and (B) the actual amount of the indemnification payment previously paid by the Company Stockholders under or with respect to such Damages. If an Indemnifying Party (as defined below) makes any indemnification payment hereunderthis Agreement, such Indemnifying Party including without limitation Parent's Indemnification obligations under this Article VIII or otherwise shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnified Party (as defined below) to any third party in connection with the Damages to which such payment relatesnot exceed $10,000,000.

Threshold and Limitations. (ia) No Parent Group member The Indemnified Parties shall be not be entitled to receive any indemnification payment with respect to any claim claims for indemnification under this Article 7 Sections 10.2(a), 10.2(b), 10.2(c) and 10.3(a) and 10.3(b) (the "CLAIMSIndemnified Claims") until the aggregate Damages Losses in respect of Indemnified Claims for which the Parent Group such Indemnified Parties would be otherwise be entitled to receive indemnification exceeds exceed $350,000 25,000 (the "THRESHOLDThreshold"). Once ; provided, however, that once such aggregate Loss exceeds Losses exceed the Threshold, the Parent Group, such Indemnified Parties shall be entitled to indemnification for the aggregate amount of all Damages, regardless of the Threshold. Notwithstanding the foregoing, Parent shall be entitled to indemnification for all Damages based upon a claim of fraud or any breach of the representations contained in Sections 2.2, 2.3, 2.4, 2.8, 3.3 and 3A.2, and any indemnification provided for by Sections 7.1(c), 7.1(d) and 7.1(e) Losses without regard to the Threshold. (iib) Except as provided below for Damages Losses based upon a claim of fraud on fraud, or any breach of the representations contained arising in connection with Sections 2.2, 2.3, 2.4, 2.8, 3.3 or 3A.2, and any indemnification provided for by Sections 7.1(c4.1.1 (Good Title), 7.1(d) and 7.1(e4.1.2 (Authority), 4.2 (ACompany Organization, Good Standing, Power, Etc.) the aggregate liability of all Company Stockholders under this Article 7 4.3 (other than pursuant to Section 7.1(d)Capitalization), shall be limited to the value of the Indemnification Escrow, for 4.8 (Taxes) (which purpose, any shares of Parent Common Stock deposited in escrow shall be valued at $2.80 per share, as subject to adjustment for stock splits, stock dividends and the like (the "ESCROW VALUE"), (B) the aggregate liability of Parent and the Merger Subs under this Article 7, shall be limited to the amount of the Escrow Value, and (C) the liability of any Company Stockholder shall be limited to the amount of the Escrow Value originally deposited in escrow for his or its account. With respect to any Claim based on a claim of fraud, any breach of the representations contained in Sections 2.2, 2.3, 2.4, 2.8, 3.3 or -71- 3A.2, and any indemnification provided for by Sections 7.1(c), the liability of each Company Stockholder shall be up to the amount of the Merger Consideration actually received by such Company Stockholder; with respect to any Claim based on the indemnification provided for by Section 7.1(dare discussed below), the aggregate liability of the Company Stockholders Holders in respect of Indemnified Claims shall be limited to the value of the Indemnification Escrow plus the Working Capital Escrow; and with respect to any Claim $10,000,000. Liability based on the indemnification provided for by Sections 4.1.1 (Good Title), 4.1.2 (Authority), 4.2 (Company Organization, Good Standing, Power, Etc), 4.3 (Capitalization) and 4.8 (Taxes) shall be without limit. Liability based on Section 7.1(e10.2(d) the aggregate liability of the Company Stockholders shall be limited to the value of the Indemnification Escrow plus $250,000; provided, that the indemnification provided by any Principal Stockholder in respect of the representations in the Transmittal Certificates and Article 3 and its covenants in this Agreement, and the indemnification provided by the Specified Holder in respect of the representations in its Transmittal Certificate and Article 3A, are several and not joint, such that no Principal Stockholder or Specified Holder shall be liable in indemnity for the breach of any such representation other than those made by such Principal Stockholder or the Specified Holder, as the case may be24,500,000. (iiic) An indemnifying party shall not be obligated to defend and hold harmless an indemnified party party, or otherwise be liable to such party party, with respect to any claims made by indemnifying the indemnified party after the expiration of the Survival Period or other applicable time period as set forth inlimitation described in Section 10.1, and subject to, Section 7.3. (iv) In determining except that indemnity may be sought after the amount of Damages for which any Parent Group member is entitled assert a claim for indemnification, the amount of any such Damages shall be determined after deducting therefrom the amount of any insurance proceeds actually received by Parent or the Company in respect of such matter (which recoveries Parent agrees to use and to cause the Company to use commercially reasonable efforts to obtain). If an indemnification payment is received by a member expiration of the Parent Group hereunder, and such person Survival Period or the Company later receives insurance proceeds in respect of the related Damages, Parent shall return to the Company Stockholders within 10 days of the receipt of such insurance proceeds (and in the same proportion of cash and Parent Stock deposited in the Indemnity Escrow), Base Consideration previously distributed to Parent from the Indemnity Escrow equal in value (for which purpose any shares of Parent Common Stock deposited in escrow shall be valued at $2.80 per share, as subject to adjustment for stock splits, stock dividends and the like) to the lesser of (A) the actual amount of insurance proceeds and (B) the actual amount of the indemnification payment previously paid by the Company Stockholders with respect to such Damages. If an Indemnifying Party other applicable time limitation if a Claim Notice (as defined belowin the Escrow Agreement) makes any indemnification payment hereunder, such Indemnifying Party shall be subrogated, have been delivered to the extent Holders prior to the expiration of such payment, to all rights and remedies of the Indemnified Party (as defined below) to any third party in connection with the Damages to which such payment relatestime period.