Common use of Indemnification Cap Clause in Contracts

Indemnification Cap. (a) Subject to the limitations set forth in this Article VIII, subsequent to the Closing Target will indemnify and hold harmless Acquiror and its officers, directors, agents and employees, and each person, if any, who controls or may control Acquiror within the meaning of the Securities Act (hereinafter referred to individually as an "Indemnified Person" and collectively as "Indemnified Persons") from and against any and all losses, costs, damages, liabilities and expenses arising from claims, demands, actions, causes of action, including, without limitation, reasonable legal fees, (collectively, "Damages") arising out of any breach of or default in connection with any of the representations, warranties, covenants and agreements given or made by Target in this Agreement (excluding Section 2.29 hereto), the Disclosure Schedules or any Exhibit to this Agreement. (b) Acquiror and Target each acknowledge that such Damages, if any, would relate to unresolved contingencies existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the total consideration Acquiror would have agreed to issue in connection with the Merger. In no event shall the aggregate liability of Target and its stockholders exceed $13,750,000 and in no event shall the individual liability of each of Target's stockholders exceed the amounts set forth in Section 8.2(d) herein; provided, however, that nothing in this Agreement shall limit the liability of any Target stockholder in connection with any breach by such stockholder of the Stockholder Agreement or irrevocably proxy or any willful misrepresentation or breach by Target or such stockholder of any representation, warranty or covenant of this Agreement or any fraudulent conduct by Target or such stockholder in connection herewith. (c) For the purpose of compensating Acquiror for its Damages pursuant to this Agreement, the Acquiror Common Stock in the Escrow Fund shall be valued at the Acquiror Stock Price. (i) The Escrow Fund shall be security for part of the indemnity obligations hereunder. Subject to the limitations in this Agreement, when entitled to Damages hereunder Acquiror shall be entitled and obligated to seek and claim the full amount of damages from the Escrow Fund until exhausted; and (ii) thereafter from all holders of Target Common Stock as of the Effective Time on a pro rata and several basis (based on their holdings as of the Effective Time) up to an aggregate liability per holder of Target Common Stock of 7% of the value of Acquiror Common Stock received by such holders as of the Effective Time.

Indemnification Cap. (a) Subject Notwithstanding any provision hereof to the limitations set forth in this Article VIIIcontrary, subsequent to after the Closing Target will indemnify and hold harmless Acquiror and its officers, directors, agents and employees, and each person, if any, who controls or may control Acquiror within the meaning of the Securities Act (hereinafter referred to individually as an "Indemnified Person" and collectively as "Indemnified Persons") from and against any and all losses, costs, damages, liabilities and expenses arising from claims, demands, actions, causes of action, including, without limitation, reasonable legal fees, (collectively, "Damages") arising out of any breach of or default in connection with any of the representations, warranties, covenants and agreements given or made by Target in this Agreement (excluding Section 2.29 hereto)Closing, the Disclosure Schedules or any Exhibit aggregate amount of Damages for which Buyer Indemnified Parties shall be entitled to indemnification pursuant to this Agreement. (b) Acquiror Section IX for breaches of representations and Target each acknowledge that such Damages, if any, would relate to unresolved contingencies existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the total consideration Acquiror would have agreed to issue in connection with the Merger. In no event shall the aggregate liability of Target and its stockholders exceed $13,750,000 and in no event shall the individual liability of each of Target's stockholders warranties will not exceed the Escrow Amount minus any amounts set forth in paid as a Deficit Amount pursuant to Section 8.2(d) herein2.5(d); provided, however, that nothing such limitation shall not apply with respect to (i) any Damages resulting from or relating to any breach of the Special Representations or the covenants and (ii) any action made with intent to de-fraud by the Seller. Notwithstanding the limitations set forth in the preceding sentences, in no event (other than fraud) shall the Seller’s aggregate Liability for indemnification pursuant to this Agreement exceed the Purchase Price. After the Closing the Escrow Funds shall limit serve as the liability sole and exclusive source of payment of any Target stockholder claim for indemnification pursuant to Sections 9.2(a) with respect to breaches of representations and warranties for which indemnification is limited to the Escrow Amount as set forth in the first sentence of this Section 9.4(a) as long as Escrow Funds are held by the Escrow Agent. For the avoidance of doubt, claims for indemnification with respect to the covenants or the Special Representations shall not be limited to the Escrow Funds but after the Closing shall be paid first out of the Escrow Funds before any claim may be made against Seller with respect thereto. The Escrow Funds shall serve as the sole and exclusive source of payment of any claim for indemnification pursuant to Section 9.10 until the date which is two (2) years from the Closing Date and from such date until the date which is three (3) years from the Closing Date, Seller’s aggregate Liability pursuant to Section 9.10 shall be the lower of (i) $2 million and (ii) the Escrow Amount minus any amounts paid as a Deficit Amount pursuant to Section 2.5(d) minus any amounts paid in connection with any breach by such stockholder of the Stockholder Agreement or irrevocably proxy or any willful misrepresentation or breach by Target or such stockholder of any representation, warranty or covenant of this Agreement or any fraudulent conduct by Target or such stockholder in connection herewith. (c) For the purpose of compensating Acquiror for its Damages Buyer Claims pursuant to this Agreement, the Acquiror Common Stock in the Escrow Fund shall be valued at the Acquiror Stock Price. (iSections 9.2(a)(i) The Escrow Fund shall be security for part of the indemnity obligations hereunder. Subject prior to the limitations in this Agreement, when entitled to Damages hereunder Acquiror shall be entitled and obligated to seek and time a claim the full amount is properly asserted for a breach of damages from the Escrow Fund until exhausted; and (ii) thereafter from all holders of Target Common Stock as of the Effective Time on a pro rata and several basis (based on their holdings as of the Effective Time) up to an aggregate liability per holder of Target Common Stock of 7% of the value of Acquiror Common Stock received by such holders as of the Effective TimeSection 9.10.

Indemnification Cap. (a) Subject The indemnification obligations of each Seller under Article 7 will be limited to the limitations Escrow Amount attributable to such Seller as set forth on Exhibit A; provided however, that (i) in this the case of intentional misrepresentation by such Seller, or (ii) Seller Warranty Breaches involving Article VIII3, subsequent the indemnification obligations of each Seller shall be limited to the Closing Target will indemnify and hold harmless Acquiror and its officers, directors, agents and employees, and each person, if any, who controls or may control Acquiror within the meaning of the Securities Act (hereinafter referred to individually Cash Payment actually received by such Seller as an "Indemnified Person" and collectively as "Indemnified Persons") from and against any and all losses, costs, damages, liabilities and expenses arising from claims, demands, actions, causes of action, including, without limitation, reasonable legal fees, (collectively, "Damages") arising out of any breach of or default in connection with any of the representations, warranties, covenants and agreements given or made by Target in this Agreement (excluding Section 2.29 hereto), the Disclosure Schedules or any set forth on Exhibit to this Agreement.A. (b) Acquiror and Target each acknowledge that such Damages, if any, would relate to unresolved contingencies existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the total consideration Acquiror would have agreed to issue in connection with the Merger. In no event shall the aggregate liability of Target and its stockholders exceed $13,750,000 and in no event shall the individual liability The indemnification obligations of each of Target's stockholders exceed Management Shareholder under Article 7 will be limited to the amounts Escrow Amount attributable to such Management Shareholder as set forth in Section 8.2(d) hereinon Exhibit A; provided, provided however, that nothing (i) in this Agreement the case of intentional misrepresentation by any Management Shareholder, or (ii) Management Warranty Breaches involving Sections 4.1, 4.2, 4.3, 4.4 or 4.5, the indemnification obligations of each Management Shareholder shall limit be limited to the liability of Closing Cash Payment plus any Target stockholder in connection with any breach Earn-Out Consideration actually received by such stockholder Management Shareholder as set forth on Exhibit A. In the event that Section 4.19 survives for a period of more than 18 months pursuant to Section 7.1, any indemnification obligations of the Stockholder Agreement or irrevocably proxy or any willful misrepresentation or Management Shareholders under Article 7 for claims made after eighteen (18) months after the Closing involving a breach by Target or of Section 4.19 will be limited to each such stockholder Management Shareholder’s pro rata share (relative to the other Management Shareholders only) of any representation, warranty or covenant of this Agreement or any fraudulent conduct by Target or such stockholder in connection herewiththe Escrow Amount. (c) For Notwithstanding anything in this Agreement to the purpose of compensating Acquiror for its Damages pursuant contrary, and subject to this Agreementany limitations contained herein, the Acquiror Common Stock in the Escrow Fund shall be valued at the Acquiror Stock Price. (i) The Escrow Fund each Seller shall only be security liable for part such Seller’s Pro Rata Share of the indemnity any indemnification obligations hereunder. Subject to the limitations in this Agreement, when entitled to Damages hereunder Acquiror shall be entitled and obligated to seek and claim the full amount of damages from the Escrow Fund until exhausted; and (ii) thereafter from all holders of Target Common Stock as of the Effective Time on a pro rata and several basis (based on their holdings as of the Effective Time) up to an aggregate liability per holder of Target Common Stock of 7% of the value of Acquiror Common Stock received by such holders as of the Effective Time.for Seller Warranty Breaches

Indemnification Cap. (a) Subject Notwithstanding anything in this Agreement to the limitations set forth contrary, in this Article VIII, subsequent to the Closing Target will indemnify and hold harmless Acquiror and its officers, directors, agents and employees, and each person, if any, who controls or may control Acquiror within the meaning of the Securities Act (hereinafter referred to individually as an "Indemnified Person" and collectively as "Indemnified Persons") from and against no event shall CMI have any and all losses, costs, damages, liabilities and expenses liability arising from claims, demands, actions, causes of action, including, without limitation, reasonable legal fees, (collectively, "Damages") arising out of any breach of or default in connection with any breach or inaccuracy of any of the representationsrepresentations and warranties in Article 5 which would result in the issuance to Seller Indemnified Parties of shares of CMI Common Stock in excess of the Indemnification Cap (but only for the amount in excess), warrantiesexcept in the case of liability for a breach or inaccuracy of a Fundamental Representation, covenants and agreements given which shall not be subject to the Indemnification Cap. Notwithstanding anything herein to the contrary, in no event shall CMI be subject to any liability arising from or made by Target in connection with this Agreement or the Transactions which would result in the payment to Seller Indemnified Parties an amount of shares of CMI Common Stock in excess of the number of shares of CMI Common Stock issued to the Sellers pursuant to the Exchange at the Closing. Notwithstanding anything in this Agreement (excluding Section 2.29 hereto)to the contrary, the Disclosure Schedules or any Exhibit to this Agreement. (b) Acquiror and Target each acknowledge that such Damages, if any, would relate to unresolved contingencies existing at the Effective Time, which if resolved at the Effective Time would have led to a reduction in the total consideration Acquiror would have agreed to issue in connection with the Merger. In no event shall the aggregate liability of Target and its stockholders exceed $13,750,000 and in no event shall the individual Sellers as a group have any liability of each of Target's stockholders exceed the amounts set forth in Section 8.2(d) herein; provided, however, that nothing in this Agreement shall limit the liability of any Target stockholder arising from or in connection with any breach by such stockholder or inaccuracy of any of the Stockholder Agreement representations and warranties in Article 4 or irrevocably proxy Article 6 which would result in the payment to CMI Indemnified Parties an amount of shares of CMI Common Stock in excess of the Indemnification Cap (but only for the amount in excess), except in the case of liability for a breach or inaccuracy of a Fundamental Representation, which shall not be subject to the Indemnification Cap. For the avoidance of doubt, liability for breaches of covenants or agreements shall not be subject to the Indemnification Cap. Notwithstanding anything herein to the contrary, in no event shall any willful misrepresentation Seller be subject to any liability arising from or breach by Target or such stockholder of any representation, warranty or covenant of in connection with this Agreement or any fraudulent conduct by Target or such stockholder the Transactions which would result in connection herewith. (c) For the purpose payment to CMI Indemnified Parties an amount of compensating Acquiror for its Damages pursuant to this Agreement, the Acquiror shares of CMI Common Stock in excess of the Escrow Fund shall be valued number of shares of CMI Common Stock such Seller received pursuant to the Exchange at the Acquiror Stock PriceClosing. (i) The Escrow Fund shall be security for part of the indemnity obligations hereunder. Subject to the limitations in this Agreement, when entitled to Damages hereunder Acquiror shall be entitled and obligated to seek and claim the full amount of damages from the Escrow Fund until exhausted; and (ii) thereafter from all holders of Target Common Stock as of the Effective Time on a pro rata and several basis (based on their holdings as of the Effective Time) up to an aggregate liability per holder of Target Common Stock of 7% of the value of Acquiror Common Stock received by such holders as of the Effective Time.