Common use of Basket and Cap Clause in Contracts

Basket and Cap. Other than with respect to Excepted Claims, which are not subject to pecuniary limitations except as provided below, Parent and the Surviving Corporation will not be entitled to seek indemnification under this Article VIII unless and until the amount of all Losses subject to indemnification hereunder has accumulated to a threshold of $270,000.00, after which Parent and the Surviving Corporation will be entitled to the full amount of all such Losses, including amounts below such threshold. With respect to all Losses under this Article VIII other than Excepted Claims, recourse against any Participating Stockholder shall be limited solely to such Participating Stockholder’s Percentage Share of the Indemnity Holdback held in the Escrow Account. With respect to all Losses under this Article VIII that arise out of or are based upon Excepted Claims, in no event shall the liability incurred by any single Participating Stockholder pursuant to this Article VIII exceed (a) such Participating Stockholder’s Percentage Share of the Indemnity Holdback (net of amounts paid to Parent or Surviving Corporation for indemnification of Losses pursuant to this Article VIII with respect to claims other than Excepted Claims), plus (b) an amount equal to 100% of the portion of the Merger Consideration actually received by such Participating Stockholder (which, in the case of the Participating Stockholders who are individuals, shall be net of Taxes paid with respect thereto).

Basket and Cap. Other than with respect to Excepted Claims, which are not subject to pecuniary limitations except as provided below, Parent and the Surviving Corporation will not be entitled to seek indemnification under this Article VIII VII unless and until the amount of all Losses subject to indemnification hereunder has accumulated to a threshold of $270,000.00, after which Parent and the Surviving Corporation will be entitled to the full amount of all such Losses, including amounts below such threshold. With respect to all Losses under this Article VIII VII other than Excepted Claims, recourse against any Participating Stockholder shall be limited solely to offsetting the amount of such Loss from the amounts otherwise payable under the Note issued to such Participating Stockholder’s Percentage Share , in a maximum aggregate amount equal to nine percent (9%) of the Indemnity Holdback held in the Escrow Accountoriginal principal amount of such Note. With respect to all Losses under this Article VIII VII that arise out of or are based upon Excepted Claims, recourse against any Participating Stockholder shall be limited solely to (1) first, offsetting from the amounts then remaining payable under the Note issued to such Participating Stockholder and (2) only thereafter recovering from the cash amounts actually received by such Participating Stockholder, provided, however, that in no event shall the liability incurred by direct payment obligation (separate and apart from the right of offset contemplated hereby) of any single Participating Stockholder pursuant to this Article VIII VII exceed (a) such Participating Stockholder’s Percentage Share of the Indemnity Holdback (net of amounts paid to Parent or Surviving Corporation for indemnification of Losses pursuant to this Article VIII with respect to claims other than Excepted Claims), plus (b) an amount equal to 100% of the portion of the Merger Consideration actually received in cash by such Participating Stockholder (which, in the case of the Participating Stockholders who are individuals, shall be net of Taxes paid with respect thereto)Stockholder.