Common use of Threshold Clause in Contracts

Threshold. (a) Subject to Section 9.3(b), Foudy shall not be required to make any indemnification payment pursuant to Sections 9.2(a)(i) or 9.2(a)(iii) for any Breach as set forth in such Sections until such time as the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise become subject, exceeds $50,000.00 in the aggregate (the "Basket"). At such time as the total amount of such Damages exceeds $50,000.00 in the aggregate, the Indemnitees shall be entitled to be indemnified against the full amount of such Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to contrary contained herein, in no event shall the indemnification obligations of Foudy exceed the aggregate amount and value of the Closing Consideration, Escrow Fund, and Earnout Consideration received by all of the Selling Stockholders, including, without limitation, Foudy (the "Indemnity Limitation"). (b) The Basket limitation set forth in Section 9.3(a) shall not apply to (i) any Breach of any of the Specified Representations, or (ii) any Breach arising directly or indirectly from any circumstance of which the Company or any of the Selling Stockholders had Knowledge on or prior to the Closing Date, (iii) any Breach based on any acts or misconduct of the Company and one or more of the Selling Stockholders, with an intent to defraud or to make a willful, intentional or reckless misrepresentation or willful omission of a material fact in connection with this Agreement and the transactions contemplated hereby or thereby ("Fraud Claims"), or (iv) any Specific Indemnity Liability. The Indemnity Limitation set forth in Section 9.3(a) shall not apply to any Fraud Claims. (c) The Purchaser shall not be required to make any indemnification payment pursuant to Section 9.6 for any Breach as set forth in such Section until such time as the total amount of all Damages (including the Damaged arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by the Selling Stockholder, or to which any one or more of the Selling Stockholders has or have otherwise become subject, exceeds $50,000.00 in the aggregate. At such time as the total amount of such Damages exceeds $50,000.00 in the aggregate, the Selling Stockholders shall be entitled to be indemnified against the full amount of such Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to the contrary contained herein, in no event shall the indemnification obligations of the Purchaser, with respect to each Selling Stockholder, exceed the aggregate amount and value of the Closing Consideration, Escrow Fund, Closing Shares and Earnout Consideration received by such Selling Stockholder. (d) In the event that the Indemnitees are entitled to indemnification for Damages from the Selling Stockholders, Foudy shall satisfy any such claim for Damages with cash, until the aggregate cash portion of the Indemnity Limitation (consisting of the Upfront Consideration, the cash portion of the Escrow Fund, and any Cash Consideration (as defined in the Earnout Agreement)) has been reached. Upon satisfaction of the aggregate cash portion of the Indemnity Limitation, any remaining Damages incurred by the Purchaser shall be satisfied by Foudy's Closing Shares and/or Earnout Shares; provided, however, with respect to Foudy's indemnification obligations only, during the period in which the Closing Shares or the Earnout Shares are subject to any restrictions contained in the Lockup Agreement, the value of each Closing Share or Earnout Share shall be equal to the value of each Closing Share or Earnout Share as of the date of Foudy's receipt regardless of the actual value of each Closing Share or Earnout Share as of the date of the claim.

Threshold. (a) Subject to Section 9.3(b)Other than for any Excluded Claim, Foudy Sellers shall not be liable, pursuant to Section 8.1, for any Losses suffered by any Purchaser Indemnified Party unless the aggregate of all Losses suffered by the Purchaser Indemnified Parties exceeds, on a cumulative basis, an amount equal to [REDACTED] of the Purchase Price (the “Indemnity Threshold”), and then Sellers shall only be liable to the extent of any such excess. Other than for any Excluded Claim, Purchaser shall not be liable, pursuant to Section 8.2, for any Losses suffered by the Seller Indemnified Parties unless the aggregate of all Losses suffered by the Seller Indemnified Parties exceeds, on a cumulative basis, the Indemnity Threshold, and then Purchaser shall only be liable to the extent of any such excess. Notwithstanding any other provision of this Agreement to the contrary, other than for any Excluded Claim, no Indemnifying Party shall be required to make indemnify, defend or hold harmless any indemnification payment Indemnified Party pursuant to Sections 9.2(a)(i) or 9.2(a)(iii) for any Breach as set forth in such Sections until such time as the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Indemniteesthis Article VIII against, or reimburse any Indemnified Party for, any Losses with respect to which any one individual claims unless such claim involves Losses in excess of [REDACTED] (nor shall such item be applied to or more considered for purposes of calculating the Indemnitees has or have otherwise become subject, exceeds $50,000.00 in the aggregate (the "Basket"Indemnity Threshold). At such time as For the total amount purposes of such Damages exceeds $50,000.00 in the aggregatethis Agreement, the Indemnitees shall be entitled “Excluded Claims” means, with respect to be indemnified against the full amount of such Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to contrary contained hereinany Purchaser Indemnified Party, in no event shall the indemnification obligations of Foudy exceed the aggregate amount and value of the Closing Consideration, Escrow Fund, and Earnout Consideration received by all of the Selling Stockholders, including, without limitation, Foudy (the "Indemnity Limitation"). (b) The Basket limitation set forth in Section 9.3(a) shall not apply to claims for (i) any Breach of any of the Specified RepresentationsTax Indemnification, or (ii) indemnification pursuant to Section 8.1(a)(i) in connection with the Retained Liabilities other than [REDACTED] (iii) indemnification pursuant to Section 8.1(a)(iii) in connection with breaches of Sellers’ Fundamental Representations, (iv) indemnification pursuant to Section 8.1(a)(v) in connection with [REDACTED] (v) indemnification pursuant to Section 8.1(a)(ii) and (vi) fraud or willful and intentional breach, and with respect to any Breach arising directly or indirectly from Seller Indemnified Party, claims for (i) indemnification pursuant to Section 8.2(a)(i) in connection with any circumstance Assumed Liability, (ii) indemnification pursuant to Section 8.2(a)(iii) in connection with breaches of which the Company or any of the Selling Stockholders had Knowledge on or prior to the Closing DatePurchaser’s Fundamental Representations, (iii) any Breach based on any acts or misconduct of the Company and one or more of the Selling Stockholders, with an intent indemnification pursuant to defraud or to make a willful, intentional or reckless misrepresentation or willful omission of a material fact in connection with this Agreement and the transactions contemplated hereby or thereby ("Fraud Claims"), Section 8.2(a)(ii) or (iv) any Specific Indemnity Liability. The Indemnity Limitation set forth in Section 9.3(a) shall not apply to any Fraud Claimsfraud or willful and intentional breach (each, an “Excluded Claim”). (c) The Purchaser shall not be required to make any indemnification payment pursuant to Section 9.6 for any Breach as set forth in such Section until such time as the total amount of all Damages (including the Damaged arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by the Selling Stockholder, or to which any one or more of the Selling Stockholders has or have otherwise become subject, exceeds $50,000.00 in the aggregate. At such time as the total amount of such Damages exceeds $50,000.00 in the aggregate, the Selling Stockholders shall be entitled to be indemnified against the full amount of such Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to the contrary contained herein, in no event shall the indemnification obligations of the Purchaser, with respect to each Selling Stockholder, exceed the aggregate amount and value of the Closing Consideration, Escrow Fund, Closing Shares and Earnout Consideration received by such Selling Stockholder. (d) In the event that the Indemnitees are entitled to indemnification for Damages from the Selling Stockholders, Foudy shall satisfy any such claim for Damages with cash, until the aggregate cash portion of the Indemnity Limitation (consisting of the Upfront Consideration, the cash portion of the Escrow Fund, and any Cash Consideration (as defined in the Earnout Agreement)) has been reached. Upon satisfaction of the aggregate cash portion of the Indemnity Limitation, any remaining Damages incurred by the Purchaser shall be satisfied by Foudy's Closing Shares and/or Earnout Shares; provided, however, with respect to Foudy's indemnification obligations only, during the period in which the Closing Shares or the Earnout Shares are subject to any restrictions contained in the Lockup Agreement, the value of each Closing Share or Earnout Share shall be equal to the value of each Closing Share or Earnout Share as of the date of Foudy's receipt regardless of the actual value of each Closing Share or Earnout Share as of the date of the claim.

Threshold. (a) Subject to Section 9.3(b11.3(b), Foudy the Selling Shareholders shall not be required to make any indemnification payment pursuant to Sections 9.2(a)(i) or 9.2(a)(iii) for any Breach as set forth in such Sections Section 11.2 until such time as the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise become subject, exceeds $50,000.00 the amount equal to the positive Working Capital as shown in the aggregate Audited Balance Sheet, if any, (the "BasketDeductible"). At such time as the total amount of such Damages exceeds $50,000.00 in the aggregateDeductible, the Indemnitees shall be entitled to be indemnified against the full amount of such any Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to contrary contained herein, in no event shall the indemnification obligations of Foudy exceed the aggregate amount and value excess of the Closing Consideration, Escrow Fund, and Earnout Consideration received by all of the Selling Stockholders, including, without limitation, Foudy (the "Indemnity Limitation")Deductible. (b) The Basket limitation on the Selling Shareholders' indemnification obligations that is set forth in Section 9.3(aSections 11.3(a) and 11.7 shall not apply to (i) any Breach of any of the Specified Representations, or (ii) any Breach arising directly act or indirectly from any circumstance of which the Company omission ruled by a non-appealable judgment to have been fraud by Havoc or any of the Selling Stockholders had Knowledge on or prior to the Closing Date, (iii) any Breach based on any acts or misconduct of the Company and one or more of the Selling Stockholders, with an intent to defraud or to make a willful, intentional or reckless misrepresentation or willful omission of a material fact Shareholders in connection with this Agreement the Transaction. In no event shall any Selling Shareholder's liability for the Specified Representations exceed its or his pro rata share of the Purchase Price and the transactions contemplated hereby then fair market value of the AEND Shares. A Selling Shareholder can satisfy this obligation by delivery of his or thereby ("Fraud Claims")its pro rata share of the Purchase Price and the AEND Shares. To the extent that a Selling Shareholder does not deliver AEND Shares, then his or (iv) any Specific Indemnity Liability. The Indemnity Limitation set forth in Section 9.3(a) its liability under this subsection shall not apply be limited to any Fraud Claims. (c) The Purchaser shall not be required to make any indemnification payment pursuant to Section 9.6 for any Breach as set forth in such Section until such time as his or its pro rata share of the total amount Purchase Price plus the fair market value of all Damages (including the Damaged arising from such Breach and all other Damages arising from any other Breaches of any representations AEND Shares he or warranties) that have been directly or indirectly suffered or incurred it still owns plus the proceeds received by the Selling Stockholder, or to which any one or more of Shareholder from the Selling Stockholders has or have otherwise become subject, exceeds $50,000.00 in the aggregate. At such time as the total amount sale of such Damages exceeds $50,000.00 in the aggregateAEND Shares, the Selling Stockholders shall be entitled to be indemnified against the full amount net of such Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to the contrary contained herein, in no event shall the indemnification obligations of the Purchaser, with respect to each Selling Stockholder, exceed the aggregate amount and value of the Closing Consideration, Escrow Fund, Closing Shares and Earnout Consideration received by such Selling Stockholderbrokerage or underwriting commissions only. (d) In the event that the Indemnitees are entitled to indemnification for Damages from the Selling Stockholders, Foudy shall satisfy any such claim for Damages with cash, until the aggregate cash portion of the Indemnity Limitation (consisting of the Upfront Consideration, the cash portion of the Escrow Fund, and any Cash Consideration (as defined in the Earnout Agreement)) has been reached. Upon satisfaction of the aggregate cash portion of the Indemnity Limitation, any remaining Damages incurred by the Purchaser shall be satisfied by Foudy's Closing Shares and/or Earnout Shares; provided, however, with respect to Foudy's indemnification obligations only, during the period in which the Closing Shares or the Earnout Shares are subject to any restrictions contained in the Lockup Agreement, the value of each Closing Share or Earnout Share shall be equal to the value of each Closing Share or Earnout Share as of the date of Foudy's receipt regardless of the actual value of each Closing Share or Earnout Share as of the date of the claim.

Threshold. Anything to the contrary contained herein notwithstanding, (ai) Subject to Section 9.3(b), Foudy the Company Stockholders shall not be required obligated to make indemnify the Indemnified Parties with respect to any claim for indemnification payment pursuant to Sections 9.2(a)(i) resulting from or 9.2(a)(iii) for any Breach as set forth arising out of matters described in such Sections Section 8.2 unless and until such time as the total aggregate amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise become subject, claims exceeds $50,000.00 1,750,000 (the “Primary Threshold”) (provided, that such threshold for any claim for indemnification resulting from or arising out of matters described in the aggregate Second Special Indemnity Sections (other than the Clause (xii) Special Indemnity Matter) shall be $250,000 (the "Basket"“Secondary Threshold”). At such time as ), in which event the total amount of such Damages exceeds $50,000.00 in the aggregate, the Indemnitees Indemnified Parties shall be entitled to be indemnified against recover the full amount of such Damages (and not merely including any amounts of Damages within the portion Primary Threshold or Secondary Threshold, as applicable) resulting from or arising out of such matters in accordance with this Section 8, and (ii) no individual claim for indemnification resulting from or arising out of matters described in Section 8.2 shall be counted towards the Primary Threshold or the Secondary Threshold unless and until the aggregate amount of such claim exceeds $5,000 (the “Per Claim Threshold”), in which event the full amount of Damages exceeding $50,000.00)with respect to such claim shall count towards the Primary Threshold or the Secondary Threshold, as applicable. Notwithstanding anything to the contrary contained herein, in no event shall the indemnification obligations of Foudy exceed the aggregate amount and value of the Closing Consideration, Escrow Fund, and Earnout Consideration received by all of the Selling Stockholders, including, without limitation, Foudy (the "Indemnity Limitation"). (b) The Basket limitation set forth in this Section 9.3(a) shall not apply to (i) any Breach of any of the Specified Representations, or (ii) any Breach arising directly or indirectly from any circumstance of which the Company or any of the Selling Stockholders had Knowledge on or prior to the Closing Date, (iii) any Breach based on any acts or misconduct of the Company and one or more of the Selling Stockholders, with an intent to defraud or to make a willful, intentional or reckless misrepresentation or willful omission of a material fact in connection with this Agreement and the transactions contemplated hereby or thereby ("Fraud Claims"8.6(c), or (iv) any Specific Indemnity Liability. The Indemnity Limitation set forth in the Primary Threshold, Secondary Threshold and Per Claim Threshold limits imposed by this Section 9.3(a8.6(c) shall not apply to any Fraud Claims. (c) The Purchaser shall not be required to make any indemnification payment pursuant to Section 9.6 for any Breach as set forth in such Section until such time as the total amount of all Damages (including the Damaged arising from such Breach and all other Damages arising from any other Breaches of any representations or warrantiesi) that have been directly or indirectly suffered or incurred by the Selling Stockholder, or to which any one or more of the Selling Stockholders has or have otherwise become subject, exceeds $50,000.00 in the aggregate. At such time as the total amount of such Damages exceeds $50,000.00 in the aggregate, the Selling Stockholders shall be entitled to be indemnified against the full amount of such Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to the contrary contained herein, in no event shall the indemnification obligations of the Purchaser, indemnifiable under Section 8.2(a)(i) solely with respect to each Selling Stockholderany Fundamental Representation or Second Level Representation, exceed the aggregate amount and value of the Closing Consideration, Escrow Fund, Closing Shares and Earnout Consideration received by such Selling Stockholder. (dii) In the event that the Indemnitees are entitled to indemnification for Damages from the Selling Stockholders, Foudy shall satisfy any such claim for Damages with cash, until the aggregate cash portion of the Indemnity Limitation (consisting of the Upfront Consideration, the cash portion of the Escrow Fund, and any Cash Consideration (as defined in the Earnout Agreement)indemnifiable under Section 8.2(a)(iv) has been reached. Upon satisfaction of the aggregate cash portion of the Indemnity Limitation, any remaining Damages incurred by the Purchaser shall be satisfied by Foudy's Closing Shares and/or Earnout Shares; provided, however, solely with respect to Foudy's indemnification obligations onlyclaims brought by or on behalf of any individual listed in Section 2.2(a) of the Disclosure Schedule under the heading “Promised but Ungranted Options”, during the period in which the Closing Shares Section 8.2(a)(viii), Section 8.2(a)(ix)(a) or the Earnout Shares are subject to First Special Indemnity Section, or (iii) arising out of or in connection with any restrictions contained in the Lockup Agreement, the value of each Closing Share or Earnout Share shall be equal to the value of each Closing Share or Earnout Share as of the date of Foudy's receipt regardless of the actual value of each Closing Share or Earnout Share as of the date of the claimFraud.

Threshold. (a) Subject to Section 9.3(b), Foudy shall not be required to make any indemnification payment pursuant to Sections 9.2(a)(i) or 9.2(a)(iii) for any Breach Except as set forth in such Sections until such time as the total amount last sentence of all Damages (including the Damages arising from such Breach this Section 9.4(a) with respect to Buyer Non-Threshold Claims, neither Seller and all other Damages arising from any other Breaches of any representations Parent shall be liable for indemnification claims, individually or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise become subject, exceeds $50,000.00 in the aggregate (the "Basket"). At such time as the total amount of such Damages exceeds $50,000.00 in the aggregate, hereunder unless and until the Indemnitees amount of Losses incurred, sustained or suffered by any Buyer Indemnified Party for which they are entitled to indemnification hereunder (but for the operation of this proviso), exceed Three Hundred Thousand Dollars ($300,000, the "Threshold Amount") and then, Buyer Indemnified Parties shall only be entitled to be indemnified against indemnification hereunder to the full amount of extent such Damages (and not merely Losses with respect to which indemnification is sought pursuant to this Article IX exceed the portion of such Damages exceeding $50,000.00)Threshold Amount. Notwithstanding anything the foregoing, Losses incurred, sustained or suffered by any Buyer Indemnified Party arising out of, resulting from or relating or incident to contrary contained hereinany (i) any Excluded Liability, in no event shall the indemnification obligations (ii) any Liability imposed upon any Buyer Indemnified Party by reason of Foudy exceed the aggregate amount and value Buyer's or Dayton's alleged status as transferee or successor of the Closing ConsiderationSubject Business or the Subject Assets, Escrow Fund(iii) any inaccuracy, misrepresentation or breach of any representation or warranty under Sections 5.1.1 (Ownership of Stock; Authorization of Parent), 5.1.2 (Organization of Seller; Authorization) (other than the third and Earnout Consideration received by all fourth sentences thereof, which representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Section 5.1.5 (Title to and Condition of Subject Assets) (other than the Selling Stockholdersfirst, includingsecond and fourth sentences thereof, without limitationwhich representations will be subject to the Threshold Amount set forth in the first sentence of this Section 9.4(a)), Foudy Section 5.1.9 (Taxes), Section 5.1.13 (Employee Benefit Plans), Section 5.1.14 (Compliance with Environmental Laws), Section 5.1.22 (Liabilities) or Section 5.1.23 (No Other Agreements to Sell the Assets) or (iv) any breach, non-fulfillment or non-performance of Section 8.5 hereof or the Transition Agreement (clauses (i) through (iv), the "Indemnity LimitationBuyer Non-Threshold Claims") shall be due and payable immediately subject to and in accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in this Section 9.4(a) (all other Buyer Claims for which Buyer or Dayton is entitled to indemnification under Section 9.2, "Buyer Threshold Claims"). (b) The Basket limitation Except as set forth in the last sentence of this Section 9.3(a9.4(b) with respect to Seller Non-Threshold Claims, neither Buyer nor Dayton shall not apply be liable for indemnification claims, individually or in the aggregate, hereunder unless and until the amount of Losses incurred, sustained or suffered by any Seller Indemnified Party for which they are entitled to indemnification, individually or in the aggregate, hereunder (but for the operation of this proviso), exceed the Threshold Amount and then, Seller Indemnified Parties shall only be entitled to indemnification hereunder to the extent such Losses with respect to which indemnification is sought pursuant to this Article IX exceed the Threshold Amount. Notwithstanding the foregoing, Losses incurred, sustained or suffered by any Seller Indemnified Party arising out of, resulting from or relating or incident to any breach, non-fulfillment or non-performance with respect to (i) any Breach Assumed Liability, subject to the terms of any of the Specified RepresentationsSection 2.3, or (ii) any Breach arising directly under the Promissory Note, or indirectly from any circumstance of which the Company or any of the Selling Stockholders had Knowledge on or prior to the Closing Date, (iii) any Breach based on any acts or misconduct of the Company and one or more of the Selling Stockholdersinaccuracy, with an intent to defraud or to make a willful, intentional or reckless misrepresentation or willful omission breach of a material fact any representation or warranty under Section 7.1.1 (Organization) or Section 7.1.2 (Authorization) (clauses (i) through (iii), the "Seller Non-Threshold Claims") shall be due and payable immediately subject to and in connection accordance with the terms hereof without the necessity of meeting or exceeding the Threshold Amount set forth in the first sentence of this Agreement and the transactions contemplated hereby Section 9.4(b) (all other Seller Claims for which Seller or thereby (Parent is entitled to indemnification under Section 9.3, "Fraud Seller Threshold Claims"), or (iv) any Specific Indemnity Liability. The Indemnity Limitation set forth in Section 9.3(a) shall not apply to any Fraud Claims. (c) The Purchaser shall not be required to make any indemnification payment pursuant to Section 9.6 for any Breach as set forth in such Section until such time as the total amount of all Damages (including the Damaged arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by the Selling Stockholder, or to which any one or more of the Selling Stockholders has or have otherwise become subject, exceeds $50,000.00 in the aggregate. At such time as the total amount of such Damages exceeds $50,000.00 in the aggregate, the Selling Stockholders shall be entitled to be indemnified against the full amount of such Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to the contrary contained herein, in no event shall the indemnification obligations of the Purchaser, with respect to each Selling Stockholder, exceed the aggregate amount and value of the Closing Consideration, Escrow Fund, Closing Shares and Earnout Consideration received by such Selling Stockholder. (d) In the event that the Indemnitees are entitled to indemnification for Damages from the Selling Stockholders, Foudy shall satisfy any such claim for Damages with cash, until the aggregate cash portion of the Indemnity Limitation (consisting of the Upfront Consideration, the cash portion of the Escrow Fund, and any Cash Consideration (as defined in the Earnout Agreement)) has been reached. Upon satisfaction of the aggregate cash portion of the Indemnity Limitation, any remaining Damages incurred by the Purchaser shall be satisfied by Foudy's Closing Shares and/or Earnout Shares; provided, however, with respect to Foudy's indemnification obligations only, during the period in which the Closing Shares or the Earnout Shares are subject to any restrictions contained in the Lockup Agreement, the value of each Closing Share or Earnout Share shall be equal to the value of each Closing Share or Earnout Share as of the date of Foudy's receipt regardless of the actual value of each Closing Share or Earnout Share as of the date of the claim.

Threshold. (a) Subject to Section 9.3(b), Foudy shall not No Indemnifying Party will be required to make indemnify an Indemnified Party hereunder with respect to any indemnification payment pursuant Damages arising on account of or related to Sections 9.2(a)(i) any breach of any of the Company Representations and Warranties or 9.2(a)(iii) for of any Breach of the Cubist Representations and Warranties, as set forth in such Sections applicable, until such time as the total aggregate amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to for which any one or more of the Indemnitees has or have otherwise become subject, exceeds $50,000.00 in the aggregate (the "Basket"). At such time as the total amount of such Damages exceeds $50,000.00 in the aggregate, the Indemnitees shall be entitled to be indemnified against the full amount of such Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to contrary contained herein, in no event shall the indemnification obligations of Foudy exceed the aggregate amount and value of the Closing Consideration, Escrow Fund, and Earnout Consideration received by all of the Selling Stockholders, including, without limitation, Foudy (the "Indemnity Limitation"). (b) The Basket limitation set forth in Section 9.3(a) shall not apply to (i) any Breach of any of Cubist Indemnified Parties, on the Specified Representationsone hand, or (ii) any Breach arising directly or indirectly from any circumstance of which the Company or any of Shareholders, on the Selling Stockholders had Knowledge on or prior other hand, are otherwise entitled to indemnification pursuant to this Section 4 exceeds $300,000 (the Closing Date, (iii) any Breach based on any acts or misconduct of the Company and one or more of the Selling Stockholders, with an intent to defraud or to make a willful, intentional or reckless misrepresentation or willful omission of a material fact in connection with this Agreement and the transactions contemplated hereby or thereby ("Fraud ClaimsWarranty Threshold"), or (iv) any Specific Indemnity Liabilitywhereupon such Indemnified Party will be entitled to indemnification for the full amount of all such Damages, without regard to such threshold amount. The Indemnity Limitation set forth in foregoing provisions of this Section 9.3(a4.5(b) shall not apply to any Fraud Claims. (cbreach by the Company of the representation and warranty set forth in Section 2.15(h) The Purchaser of the Acquisition Agreement, and the Shareholders shall be required to indemnify the Cubist Indemnified Parties for Damages resulting from any such breach without regard to whether the aggregate Damages suffered by Cubist Indemnified Parties for which they are otherwise entitled to indemnification hereunder have exceeded the Warranty Threshold. Any Damages for which the Shareholders have indemnified Cubist Indemnified Parties pursuant to the preceding sentence shall not be required to make any indemnification payment pursuant to Section 9.6 for any Breach as set forth counted in such Section until such time as the total amount of all Damages (including the Damaged arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by the Selling Stockholder, or to which any one or more of the Selling Stockholders has or have otherwise become subject, exceeds $50,000.00 in the aggregate. At such time as the total amount of such Damages exceeds $50,000.00 in the aggregate, the Selling Stockholders shall be entitled to be indemnified against the full amount of such Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to the contrary contained herein, in no event shall the indemnification obligations of the Purchaser, with respect to each Selling Stockholder, exceed determining whether the aggregate amount and value of the Closing Consideration, Escrow Fund, Closing Shares and Earnout Consideration received Damages suffered by such Selling Stockholder. (d) In the event that the Indemnitees Cubist Indemnified Parties for which they are otherwise entitled to indemnification hereunder exceeds the Warranty Threshold. Solely for Damages from the Selling Stockholders, Foudy shall satisfy any such claim for Damages with cash, until purpose of determining whether the aggregate cash portion number of Damages suffered by Cubist Indemnified Parties have at any time exceeded the Warranty Threshold, any requirement in the representation and warranty covered by the provisions of Section 2.15(h) that an event or fact be known to the Company (which is a condition to such event or fact constituting a misrepresentation or breach of such representation and warranty (the "Knowledge Qualifier")) shall be ignored. Notwithstanding the provisions of the Indemnity Limitation (consisting immediately preceding sentence, the Knowledge Qualifier in Section 2.15(h) shall at all times continue to be applicable in determining whether in fact there has been a misrepresentation or breach of Section 2.15(h) such that it would give rise to a Claim and the corresponding obligation of the Upfront Consideration, the cash portion of the Escrow Fund, and any Cash Consideration (as defined in the Earnout Agreement)) has been reached. Upon satisfaction of the aggregate cash portion of the Indemnity Limitation, any remaining Damages incurred by the Purchaser shall be satisfied by Foudy's Closing Shares and/or Earnout Shares; provided, however, with respect Shareholders to Foudy's indemnification obligations only, during the period in which the Closing Shares or the Earnout Shares are subject to any restrictions contained in the Lockup Agreement, the value of each Closing Share or Earnout Share shall be equal to the value of each Closing Share or Earnout Share as of the date of Foudy's receipt regardless of the actual value of each Closing Share or Earnout Share as of the date of the claimindemnify Cubist therefor.

Threshold. (a) Subject Notwithstanding any other provision in this Agreement to the contrary, no indemnification claims may be asserted by any party pursuant to Section 9.3(b), Foudy shall not be required to make any indemnification payment pursuant to Sections 9.2(a)(i10.1(a) or 9.2(a)(iiiSection 10.2(a) for any Breach as set forth in such Sections of this Agreement until such time as the total aggregate amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more indemnification claims of the IndemniteesMethode Indemnified Parties, on one hand, or to which any one or more of Gemtron Indemnified Parties on the Indemnitees has or have otherwise become subjectother hand, exceeds Five Hundred Thousand Dollars ($50,000.00 500,000) in the aggregate (the "Basket"“Aggregate Threshold Amount”). At such , at which time as the total party seeking indemnification shall be entitled to assert all individual indemnification claims or groups of related claims that exceed Twenty-Five Thousand Dollars ($25,000) (the “Individual Threshold Amount”) in excess of the Aggregate Threshold Amount; provided that Claims relating to indemnification claims based upon Sections 10.1(b) through (d), Sections 10.2(b) through (i), Section 10.3 and Claims relating to indemnification claims based upon a breach of the representations and warranties set forth in Sections 4.3 (Stock Ownership) and 4.5 (Capitalization) of this Agreement shall be subject to the Individual Threshold Amount, but not be subject to the Aggregate Threshold Amount; provided further that (i) no indemnification claims may be asserted by Methode Indemnified Parties pursuant to Section 10.1(h) until the aggregate amount of such Damages Claims exceeds Fifty Thousand Dollars ($50,000.00 50,000) (the “Special Threshold Amount”) in the aggregate, the Indemnitees after which Gemtron shall be entitled to be indemnified against the full amount of liable for all such Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to contrary contained herein, in no event shall the indemnification obligations of Foudy exceed the aggregate amount and value Claims regardless of the Closing Consideration, Escrow FundIndividual Threshold Amount or the Aggregate Threshold Amount, and Earnout Consideration received by all of the Selling Stockholders, including, without limitation, Foudy (the "Indemnity Limitation"). (b) The Basket limitation set forth in Section 9.3(a) shall not apply to (i) any Breach of any of the Specified Representations, or (ii) the amount of any Breach arising directly or indirectly from any circumstance of which the Company or any of the Selling Stockholders had Knowledge on or prior to the Closing Date, (iii) any Breach based on any acts or misconduct of the Company and one or more of the Selling Stockholders, with an intent to defraud or to make a willful, intentional or reckless misrepresentation or willful omission of a material fact in connection with this Agreement and the transactions contemplated hereby or thereby ("Fraud Claims"), or (iv) any Specific Indemnity Liability. The Indemnity Limitation set forth in Section 9.3(a) shall not apply to any Fraud Claims. (c) The Purchaser shall not be required to make any indemnification payment Claims asserted by Methode Indemnified Parties pursuant to Section 9.6 for any Breach as set forth in such Section until such time as 10.1(h) shall be added to the total amount of all Damages (including any Claims pursuant to Section 10.2(a) for purposes of satisfying the Damaged arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by the Selling Stockholder, or to which any one or more of the Selling Stockholders has or have otherwise become subject, exceeds $50,000.00 in the aggregate. At such time as the total amount of such Damages exceeds $50,000.00 in the aggregate, the Selling Stockholders shall be entitled to be indemnified against the full amount of such Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to the contrary contained herein, in no event shall the indemnification obligations of the Purchaser, with respect to each Selling Stockholder, exceed the aggregate amount and value of the Closing Consideration, Escrow Fund, Closing Shares and Earnout Consideration received by such Selling StockholderAggregate Threshold Amount. (d) In the event that the Indemnitees are entitled to indemnification for Damages from the Selling Stockholders, Foudy shall satisfy any such claim for Damages with cash, until the aggregate cash portion of the Indemnity Limitation (consisting of the Upfront Consideration, the cash portion of the Escrow Fund, and any Cash Consideration (as defined in the Earnout Agreement)) has been reached. Upon satisfaction of the aggregate cash portion of the Indemnity Limitation, any remaining Damages incurred by the Purchaser shall be satisfied by Foudy's Closing Shares and/or Earnout Shares; provided, however, with respect to Foudy's indemnification obligations only, during the period in which the Closing Shares or the Earnout Shares are subject to any restrictions contained in the Lockup Agreement, the value of each Closing Share or Earnout Share shall be equal to the value of each Closing Share or Earnout Share as of the date of Foudy's receipt regardless of the actual value of each Closing Share or Earnout Share as of the date of the claim.

Threshold. (a) Subject Anything contained in Article VII to Section 9.3(b)the contrary notwithstanding, Foudy the Parent Indemnified Persons shall not be required entitled to make any indemnification payment pursuant to Sections 9.2(a)(i) or 9.2(a)(iii) for this Article VII with respect to any Breach as set forth in such Sections Parent Losses until such time as the total aggregate amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise become subject, Parent Losses exceeds $50,000.00 in the aggregate 50,000 (the "BasketThreshold Amount") (other than any Parent Losses arising out of or in connection with the representations and warranties contained in Section 2.13 hereof which shall not be subject to such Threshold Amount). At such time as , whereupon the total amount of such Damages exceeds $50,000.00 in the aggregate, the Indemnitees Parent Indemnified Persons shall be entitled to be indemnified against the full amount of such Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to contrary contained herein, indemnification for all Parent Losses in no event shall the indemnification obligations of Foudy exceed the aggregate amount and value excess of the Closing ConsiderationThreshold Amount up to $21,000,000 (the "Indemnification Cap"); provided, Escrow Fund-------- however, and Earnout Consideration received by that if the Parent Indemnifying Persons shall have delivered all of the Selling Stockholders------- Purchaser Shares (and/or any cash proceeds received from the sale thereof) to the Parent Indemnified Persons pursuant to Section 7.2(a) hereof, including, without limitation, Foudy the Indemnification Cap shall be reduced to an amount equal to the aggregate Fair Market Value of the cash and Purchaser Shares (determined in accordance with Section 7.2(a)(iv)) delivered to the "Indemnity Limitation")Parent Indemnified Persons pursuant to Section 7.2(a) hereof. (b) The Basket limitation set forth Anything contained in Section 9.3(a) shall not apply to (i) any Breach of any of the Specified Representations, or (ii) any Breach arising directly or indirectly from any circumstance of which the Company or any of the Selling Stockholders had Knowledge on or prior Article VII to the Closing Datecontrary notwithstanding, (iii) any Breach based on any acts or misconduct of the Company and one or more of the Selling Stockholders, with an intent to defraud or to make a willful, intentional or reckless misrepresentation or willful omission of a material fact in connection with this Agreement and the transactions contemplated hereby or thereby ("Fraud Claims"), or (iv) any Specific Indemnity Liability. The Indemnity Limitation set forth in Section 9.3(a) shall not apply to any Fraud Claims. (c) The Purchaser Sole Shareholder shall not be required entitled to make any indemnification payment pursuant to Section 9.6 for this Article VII with respect to any Breach as set forth in such Section Sole Shareholder Losses until such time as the total amount of all Damages (including the Damaged arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by the Selling Stockholder, or to which any one or more of the Selling Stockholders has or have otherwise become subject, exceeds $50,000.00 in the aggregate. At such time as the total aggregate amount of such Damages Sole Shareholder Losses exceeds $50,000.00 in the aggregateThreshold Amount, whereupon the Selling Stockholders Sole Shareholder shall be entitled to be indemnified against indemnification for all Sole Shareholder Losses in excess of the full amount of such Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything Threshold Amount up to the contrary contained herein, in no event shall the indemnification obligations of the Purchaser, with respect to each Selling Stockholder, exceed the aggregate amount and value of the Closing Consideration, Escrow Fund, Closing Shares and Earnout Consideration received by such Selling Stockholder. (d) In the event that the Indemnitees are entitled to indemnification for Damages from the Selling Stockholders, Foudy shall satisfy any such claim for Damages with cash, until the aggregate cash portion of the Indemnity Limitation (consisting of the Upfront Consideration, the cash portion of the Escrow Fund, and any Cash Consideration (as defined in the Earnout Agreement)) has been reached. Upon satisfaction of the aggregate cash portion of the Indemnity Limitation, any remaining Damages incurred by the Purchaser shall be satisfied by Foudy's Closing Shares and/or Earnout SharesIndemnification Cap; provided, however, with respect that if the Parent Indemnifying Persons -------- ------- shall have delivered all of the Purchaser Shares (and/or any cash proceeds received from the sale thereof) to Foudy's indemnification obligations only, during the period in which the Closing Shares or the Earnout Shares are subject Parent Indemnified Persons pursuant to any restrictions contained in the Lockup AgreementSection 7.2(a) hereof, the value of each Closing Share or Earnout Share Indemnification Cap shall be reduced to an amount equal to the value of each Closing Share or Earnout Share as aggregate Fair Market Value of the date of Foudy's receipt regardless of cash and Purchaser Shares (determined in accordance with Section 7.2(a)(iv)) delivered to the actual value of each Closing Share or Earnout Share as of the date of the claimParent Indemnified Persons pursuant to Section 7.2(a) hereof.

Threshold. (a) Subject to Section 9.3(b11.3(b), Foudy the Selling Shareholders shall not be required to make any indemnification payment pursuant to Sections 9.2(a)(i) or 9.2(a)(iii) for any Breach as set forth in such Sections Section 11.2 until such time as the total amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise become subject, exceeds $50,000.00 the amount equal to the positive Working Capital as shown in the aggregate Audited Balance Sheet, if any, (the "BasketDEDUCTIBLE"). At such time as the total amount of such Damages exceeds $50,000.00 in the aggregateDeductible, the Indemnitees shall be entitled to be indemnified against the full amount of such any Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to contrary contained herein, in no event shall the indemnification obligations of Foudy exceed the aggregate amount and value excess of the Closing Consideration, Escrow Fund, and Earnout Consideration received by all of the Selling Stockholders, including, without limitation, Foudy (the "Indemnity Limitation")Deductible. (b) The Basket limitation on the Selling Shareholders' indemnification obligations that is set forth in Section 9.3(aSections 11.3(a) and 11.7 shall not apply to (i) any Breach of any of the Specified Representations, or (ii) any Breach arising directly act or indirectly from any circumstance of which the Company omission ruled by a non-appealable judgment to 47. have been fraud by Assist or any of the Selling Stockholders had Knowledge on or prior to the Closing Date, (iii) any Breach based on any acts or misconduct of the Company and one or more of the Selling Stockholders, with an intent to defraud or to make a willful, intentional or reckless misrepresentation or willful omission of a material fact Shareholders in connection with this Agreement the Transaction. In no event shall any Selling Shareholder's liability for the Specified Representations exceed its or his pro rata share of the Purchase Price and the transactions contemplated hereby then fair market value of the Cayenta Shares. A Selling Shareholder can satisfy this obligation by delivery of his or thereby ("Fraud Claims")its pro rata share of the Purchase Price and the Cayenta Shares. To the extent that a Selling Shareholder does not deliver Cayenta Shares, then his or (iv) any Specific Indemnity Liability. The Indemnity Limitation set forth in Section 9.3(a) its liability under this subsection shall not apply be limited to any Fraud Claims. (c) The Purchaser shall not be required to make any indemnification payment pursuant to Section 9.6 for any Breach as set forth in such Section until such time as his or its pro rata share of the total amount Purchase Price plus the fair market value of all Damages (including the Damaged arising from such Breach and all other Damages arising from any other Breaches of any representations Cayenta Shares he or warranties) that have been directly or indirectly suffered or incurred it still owns plus the proceeds received by the Selling Stockholder, or to which any one or more of Shareholder from the Selling Stockholders has or have otherwise become subject, exceeds $50,000.00 in the aggregate. At such time as the total amount sale of such Damages exceeds $50,000.00 in the aggregateCayenta Shares, the Selling Stockholders shall be entitled to be indemnified against the full amount net of such Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to the contrary contained herein, in no event shall the indemnification obligations of the Purchaser, with respect to each Selling Stockholder, exceed the aggregate amount and value of the Closing Consideration, Escrow Fund, Closing Shares and Earnout Consideration received by such Selling Stockholderbrokerage or underwriting commissions only. (d) In the event that the Indemnitees are entitled to indemnification for Damages from the Selling Stockholders, Foudy shall satisfy any such claim for Damages with cash, until the aggregate cash portion of the Indemnity Limitation (consisting of the Upfront Consideration, the cash portion of the Escrow Fund, and any Cash Consideration (as defined in the Earnout Agreement)) has been reached. Upon satisfaction of the aggregate cash portion of the Indemnity Limitation, any remaining Damages incurred by the Purchaser shall be satisfied by Foudy's Closing Shares and/or Earnout Shares; provided, however, with respect to Foudy's indemnification obligations only, during the period in which the Closing Shares or the Earnout Shares are subject to any restrictions contained in the Lockup Agreement, the value of each Closing Share or Earnout Share shall be equal to the value of each Closing Share or Earnout Share as of the date of Foudy's receipt regardless of the actual value of each Closing Share or Earnout Share as of the date of the claim.

Threshold. (ai) Subject to No claim for indemnification may be made under Section 9.3(b), Foudy shall not be required to make any indemnification payment pursuant to Sections 9.2(a)(i7.2(a) or 9.2(a)(iii(other than claims for recovery under Section 7.2(a)(i) for any Breach as set forth breach or inaccuracy of the applicable Surviving Representations made by the Company, under Sections 7.2(a)(iii)-(vii), (xi) and (xiii), for any fraud by or on behalf of the Company in connection with any representation or warranty of the Company contained in this Agreement, the Certificates or other Merger-Related Agreements or for any fraud by or on behalf of a Company Stockholder in connection with any representation or warranty of such Sections Company Stockholder contained in any Merger-Related Agreements delivered by such Company Stockholder) unless and until such time as the total aggregate amount of all Damages (including the Damages arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by any one or more Losses of the Indemnitees, or to which any one or more of the Indemnitees has or have otherwise become subject, Parent Indemnified Parties that may be claimed thereunder exceeds $50,000.00 in the aggregate 300,000 (the "Basket"“Threshold”). At , and once such time as the total amount of such Damages exceeds $50,000.00 in the aggregateThreshold has been reached, the Indemnitees Seller Indemnifying Parties shall be entitled liable to be indemnified against the Parent Indemnified Parties for the full amount of all such Damages (and not merely Losses, subject to the portion of such Damages exceeding $50,000.00). Notwithstanding anything to contrary other limitations contained herein, . (ii) No claim for indemnification may be made under Section 7.3(a) (other than claims for recovery under Section 7.3(a)(i) for any breach or inaccuracy of the applicable Surviving Representations made by Parent or Merger Sub or any fraud by or on behalf of Parent and Merger Sub in no event shall the indemnification obligations connection with any representation or warranty of Foudy exceed Parent or Merger Sub contained in this Agreement) unless and until the aggregate amount and value of Losses of the Closing Consideration, Escrow FundSeller Indemnified Parties that may be claimed thereunder (together with any Losses that may be claimed under any other subsection of Section 7.3(a)) exceeds the Threshold, and Earnout Consideration received by all of the Selling Stockholdersonce such Threshold has been reached, including, without limitation, Foudy (the "Indemnity Limitation"). (b) The Basket limitation set forth in Section 9.3(a) shall not apply to (i) any Breach of any of the Specified Representations, or (ii) any Breach arising directly or indirectly from any circumstance of which the Company or any of the Selling Stockholders had Knowledge on or prior to the Closing Date, (iii) any Breach based on any acts or misconduct of the Company and one or more of the Selling Stockholders, with an intent to defraud or to make a willful, intentional or reckless misrepresentation or willful omission of a material fact in connection with this Agreement and the transactions contemplated hereby or thereby ("Fraud Claims"), or (iv) any Specific Indemnity Liability. The Indemnity Limitation set forth in Section 9.3(a) shall not apply to any Fraud Claims. (c) The Purchaser shall not be required to make any indemnification payment pursuant to Section 9.6 for any Breach as set forth in such Section until such time as the total amount of all Damages (including the Damaged arising from such Breach and all other Damages arising from any other Breaches of any representations or warranties) that have been directly or indirectly suffered or incurred by the Selling Stockholder, or to which any one or more of the Selling Stockholders has or have otherwise become subject, exceeds $50,000.00 in the aggregate. At such time as the total amount of such Damages exceeds $50,000.00 in the aggregate, the Selling Stockholders Parent shall be entitled liable to be indemnified against such Seller Indemnified Parties for the full amount of such Damages (and not merely the portion of such Damages exceeding $50,000.00). Notwithstanding anything to the contrary contained herein, all Losses in no event shall the indemnification obligations excess of the Purchaser, with respect to each Selling Stockholder, exceed the aggregate amount and value of the Closing Consideration, Escrow Fund, Closing Shares and Earnout Consideration received by such Selling StockholderThreshold. (d) In the event that the Indemnitees are entitled to indemnification for Damages from the Selling Stockholders, Foudy shall satisfy any such claim for Damages with cash, until the aggregate cash portion of the Indemnity Limitation (consisting of the Upfront Consideration, the cash portion of the Escrow Fund, and any Cash Consideration (as defined in the Earnout Agreement)) has been reached. Upon satisfaction of the aggregate cash portion of the Indemnity Limitation, any remaining Damages incurred by the Purchaser shall be satisfied by Foudy's Closing Shares and/or Earnout Shares; provided, however, with respect to Foudy's indemnification obligations only, during the period in which the Closing Shares or the Earnout Shares are subject to any restrictions contained in the Lockup Agreement, the value of each Closing Share or Earnout Share shall be equal to the value of each Closing Share or Earnout Share as of the date of Foudy's receipt regardless of the actual value of each Closing Share or Earnout Share as of the date of the claim.